Margo BARTHOLOMEW and Utah State Department of Social Services, Plaintiffs and Appellants, v. Dick Dale BARTHOLOMEW, Defendant and Respondent.
No. 14203.
Supreme Court of Utah.
March 22, 1976.
All the main opinion is doing is saying we have a hot potato and we‘ll cool it with icy verbage. Best we leave it to burn our digits than to prostitute ourselves to an easy alley exit, which will never condone judicial pandering about constitutional language.
Matter of fact: This case is moot, needs no deciding now, has no absolute or other kind of necessity for determination at this time, and should be ignored.
Failing that, this court simply should say the language of the amendment may be unfortunate and illy drafted, but is neither obscure nor ambiguous. Any luxury to twist it must lie with us, not rhetoric, if published. The case should be rejected as being moot, frivolous, premature and dangerously academic. If there must be a more than useless gesture here for the edification of an already over-burdened attempt to edify the Bench and Bar, the trial court soundly should be affirmed.
Someone suggested that probation or parole applies only to felonies, but this is unsupported by any suggested or cited authority.
I am convinced that whoever concocted the 1971 Amendment did not have in mind such a conclusion, but more reasonably may have examined Black‘s Law Dictionary, where “parole” is defined as:
A conditional release: condition being that, if prisoner makes good, he will receive an absolute discharge from balance of sentence, but, if he does not, he will be returned to serve unexpired time.
And where “probation” is defined as:
In modern criminal administration, allowing a person convicted of some minor offense (particularly juvenile offenders) to go at large, under a suspension of sentence, during good behavior, and generally under the supervision or guardianship of a “probation officer.”
There is nothing I know of in our State Constitution or statutes that says the words “probation” or “parole” enjoy the luxury of any connotation restricted to felonies, and my guestimate is that the word “probation” is employed descriptively and practically 10,000 times more frequently to “misdemeanors” such as reckless driving, riots, shoplifting, assaults, batteries, and the like, than to “felonies.”
Whether our Constitution Article 1, Section 8, is vulnerable to unconstitutionality as may some day be decreed by the United States Supreme Court, or as some irreverent one might say an “act of God,” is one thing, but for this court to change our State Constitution by adding convenient, but completely unwarranted language to it, is to Marshall it with an undisguised interdiction amounting to not only judicial legislation, but judicial usurpation of power reserved to another branch of government, and to the people, who voted for the amendment that contains no words even remotely assimilative in its language.
Dick Dale Bartholomew, pro se.
CROCKETT, Justice.
In this divorce action the State was substituted as a party plaintiff as authorized by
The Bartholomews were married in October 1957. Four children were born to them. A decree of divorce was granted on March 8, 1968. It awarded plaintiff custody of the children and $50 per month support money for each child. During the next five and one-half years the defendant failed to make 32 of the monthly payments. In November, 1973, in connection with a show cause proceeding he consented to the entry of judgment for $6,400 delinquent payments and an order that he pay $75 a
Meanwhile, due to the necessitous circumstance of herself and the children, the plaintiff had applied for and had been receiving public assistance which then totaled $3,000. It was to recoup this expenditure that the State intervened as a party in interest. On January 17, 1975, the State gave notice to the defendant of taking his deposition as to why payments had not been made and why judgment should not be entered against him for that amount. In connection therewith a subpoena duces tecum was served upon the defendant requiring him to appear and produce his records. He failed to appear at the deposition. Pursuant to motion, the court issued an order to show cause why he should not be held in contempt for failing to appear at the time set for the deposition; and again reciting, as to why a judgment for $3,000 extended by the State for the support of his children should not be entered against him. It was upon his failure to appear pursuant to this order that the court entered the judgment but refused to grant counsel‘s motion to issue a bench warrant for the defendant‘s arrest.
It is important to note that the order defendant is charged with refusing to obey is his failure to “appear and have his deposition taken . . . concerning his liability and property . . . .” We excerpt part of the colloquy between the court and counsel for the State:
The Court: Why do you want a bench warrant?
Mr. Howery: Because of his non-appearance, your Honor.
The Court: Well, Mr. Howery, you allege here that he failed to appear at depositions. Is that what you are basing your contempt on?
Mr. Howery: Yes, your Honor.
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The Court: If you have something to support your position—
Mr. Howery: We will just accept your ruling and have someone else rule on it.
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The Court: Is the affidavit based on your request, for $3,000.00?
Mr. Howery: Yes, your Honor.
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The Court: You can have your judgment as prayed.
Mr. Howery: Thank you, your Honor.
It is not to be questioned that it is within the power of the trial court to issue a bench warrant for failure to appear at a deposition,1 if he has been ordered by the court to do so; nor that a person may be sentenced to jail if he wilfully refuses to obey an order of court when he has the ability to comply.2 But the generally accepted rule is that the issuance of an order relating to contempt of court, or the holding of a party in contempt of court, are matters which are not mandatory upon the trial judge, but rest within his sound discretion.3 In the absence of any action in that regard which is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of his discretion, this court on review would not disagree with his determination and compel such an action.
It is to be borne in mind that the purpose of this proceeding by the State was to obtain a judgment for the money it had expended on defendant‘s behalf; and that the State accomplished its purpose. Under the circumstance shown, we are not persuaded that the trial court abused his discretion. We observe, however, that we do not desire to be understood as indicating that there cannot be further proceed-
In regard to the concurrence in the result:
The issue of the State‘s right to intervene in this action was not raised by either party in the district court, or in this court. We therefore should have no concern with that issue.4 But inasmuch as it is injected, these comments are added.
The language of
Enforcement of right to support—The obligee [plaintiff] may enforce his right of support against the obligor and the state department of social services may proceed on behalf of the obligee or in its own behalf pursuant to chapter 45b of this title to enforce that right of support against the obligor. . . .
This is supplemented by the language of
Department of social services—Powers and duties.—(1) In the event that assistance is furnished by the department, the department shall become trustee of any cause of action of the obligee or any minor child in that obligee‘s custody, to recover support due to that obligee from any person and may bring and maintain the action either in its own name or in the name of the obligeee. . . .
The policy in the law is, and should be, to simplify and expedite procedure and to avoid a multiplicity of lawsuits.5 The right of children to support and the parental duty to provide it, supplemented by the State when necessary, gives rise to a mutual interest in that problem, quite apart from any inter-spousal rights in the divorce action. For the foregoing reasons, it was appropriate and justifiable for the State to join as an intervenor in this action.
Affirmed. No costs awarded.
HENRIOD, C. J., and ELLETT, J., concur.
TUCKETT, Justice (concurring in the result):
I concur in the result. In this matter the Utah State Department of Social Services intervened in a divorce proceeding between Margo Bartholomew and Dick Dale Bartholomew. I find no basis in law for such intervention.1 It goes without saying that the State could not have intervened in the divorce proceedings filed by the plaintiff. Those proceedings were initiated pursuant to
MAUGHAN, J., concurs in the views expressed in the opinion of Mr. Justice Tuckett.