Newell v. Newell

VALLÉE, J. These are companion eases to Newell v. Newell, ante, p. 166 [303 P.2d 839], in which we affirmed orders made March 16, 1955, which awarded custody of three minor children to Gertrude B. Ralphs, their mother, for specific periods and required their father, Robert M. Newell, to pay the mother $75 a month for the support of each of them during such periods. The opinion in that case is referred to for further facts. After the father had appealed from the orders affirmed in the companion cases, he [181]refused to make the payments for the support of the children therein ordered. On September 1, 1955, $1,080 had accrued.

On September 14, 1955, the mother moved the superior court for an order determining the amount accrued and unpaid, and directing the clerk to issue a writ of execution for that amount. The court made the following findings and order in the action brought by the wife to establish the Idaho judgment:

“That on March 16, 1955, the defendant appealed from said Order of March 16, 1955, and that thereupon an automatic statutory stay of said Order was effected by reason of Section 949 of the Code of Civil Procedure; that thereafter the Legislature enacted Section 949(a) of the Code of Civil Procedure which became effective September 8, 1955; that on September 8, 1955, by reason of the provisions of said Section 949(a) C.C.P., the automatic statutory stay of proceedings under said Order of March 16, 1955, was dissolved;

“The Court further finds that the plaintiff was not entitled to the physical custody of the children prior to September 8, 1955, by reason of the stay provided by Section 949 of the Code of Civil Procedure, and that the plaintiff had no right for support of said children prior to September 8, 1955; and, that the defendant, Robert M. Newell, is liable to the plaintiff, Gertrude B. Ralphs, for the support of said children as of September 14, 1955, the date of said Motions, for two days’ support, to wit, from September 12, 1955, the beginning of the fall school term, until the date of filing of said Motions herein, to wit, September 14,1955, and that said sum is 2/30ths of $75.00 for each child.

“It Is Therefore Ordered that the amount of accrued and unpaid child support under the Temporary Order pendente lite of March 16, 1955, herein, is 2/30ths of $75.00 for each child of the parties hereto, and that plaintiff’s Motion for Writ of Execution for the sums found due from defendant to plaintiff herein is hereby granted; a stay of ten days is hereby granted.”