Young v. Superior Court

CRAIG, J.

The petitioner herein was adjudged guilty of contempt of court for noncompliance with the provisions of an interlocutory decree of divorce directing him to pay stated monthly amounts of money for the maintenance and support of two minor children. He prays a writ of review, alleging that the trial court had no jurisdiction to entertain the contempt proceedings because the affidavit upon which they were founded did not show that he was served with or knew of the order requiring such payments to be made.

It appears that on June 1, 1922, Bertha T. Newcomb, formerly Bertha T. Young, obtained an interlocutory decree

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of divorce from petitioner, which, subsequently was made final. She was thereby awarded the custody of their two children, now of the ages of three and five years, respectively, and petitioner was ordered to pay $50 per month, beginning July 1, 1922, for the support and maintenance of said children. On April 26-, 1924, said Bertha T. Newcomb made affidavit that petitioner had not complied with said decree, and that the sum of $260 was due and unpaid; and was needed for the maintenance and support of the children; that petitioner then was and had been steadily employed at a salary sufficient to meet his own common needs and to pay the alimony so ordered; that “upon asking defendant recently to make up these back payments that he used abusive and insulting language to her and refused to pay more than he had paid her.”

An order to show cause was issued and upon the hearing, May 29, 1924, both parties appeared and introduced evidence. The court found that no payment was made in July or August, 1922, that $20 per month remained unpaid from and after September 1, 1923, and that $50' would become due June 1, 1924; it further found that the petitioner had “willfully, designedly, and with utter disregard for the order of this court held said court and its authority in contempt”; that he had steadily been employed at a salary of $125 to $135 per month, and had purchased a thousand dollar equity in real estate. It was thereupon ordered that petitioner pay a fine of $50 before June 1, 1924, or be committed to the county jail for the period of five days; that “he having the present ability so to do,” petitioner pay the plaintiff $280 on June 1, 1924, or be committed to the custody of the sheriff for the period of five days from that date. The interlocutory decree was granted upon default; and the affidavit filed on this proceeding does not aver that petitioner was served with a copy thereof, nor does it aver that he knew of the order for alimony.