Lead Opinion
This was an action in the district court of Ramsey county on a Wisconsin divorce decree for unpaid installments awarded plaintiff for the support of two minor children. The court found for plaintiff, and judgment was ordered giving plaintiff the right to enforce the judgment by extraordinary remedies. On motion, the court struck from the order for judgment the right to enforce it by extraordinary remedies. Plaintiff appeals from the judgment entered pursuant to the amended order.
Plaintiff brought suit in Minnesota for $1,660 and accrued interest. Defendant admitted the right of plaintiff to obtain a money judgment, but denied her right to enforce this judgment by extraordinary remedies, particularly by contempt proceedings. After a trial on the merits, the district court ordered judgment on December 29,1948, for plaintiff in the sum of $1,660, with interest, together with the right to enforce the judgment by all the remedies available under the laws of Minnesota for the enforcement of orders, judgments, and decrees requiring payments of alimony or support money in actions for absolute divorce. Defendant moved to strike out that part of the order for judgment which gave plaintiff the right to enforce her judgment by extraordinary remedies, and the court granted the motion.
The sole issue presented to this court is whether plaintiff has a right to an extraordinary remedy such as contempt proceedings to enforce a judgment for support money which accrued during the minority of the children, although the judgment was rendered after they had reached majority. Under our decision in Ostrander v. Ostrander,
“* * * it is obvious from the language of the statute that the jurisdiction of the court to punish for contempt terminates with the child’s attaining majority.”
Reaffirming this position in Lowry v. Lowry the court there stated (
“The purpose of the order in this case was the support of the minor children. This purpose has been accomplished, and the matter of the care and custody of the minor children is finally disposed of. The force and life of the order expired on the date the youngest child attained majority. It makes no difference whether the one directed to pay has fully complied with such order or not, insofar as enforcing same by contempt proceedings. We hold, therefore, that the trial court does not have jurisdiction to enforce its order to pay child support by contempt proceedings on accrued unpaid installments commenced after the child has reached majority.”
In Halmu v. Halmu,
“Upon adjudging the nullity of a marriage, or a divorce or separation, the court may make such further order as it deems just and proper concerning the care, custody, and maintenance of the minor children of the parties and may determine with which of the parents they, or any of them, shall remain, having due regard to the age and sex of such children.” (Italics supplied.)
In Sivertsen v. Sivertsen,
Affirmed.
Notes
Okl. Stat. 1941, Title 12, § 1277, provides:
“When a divorce is granted, the court shall make provision for guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect, whenever circumstances render such change proper either before or after final judgment in the action.” (Italics supplied.)
Dissenting Opinion
(dissenting).
I dissent from the decision of the majority insofar as it holds that contempt is not available as a remedy to the wife after the minor children have attained their majority to enforce payment of accrued allowances for their support during their minority awarded by the judgment of divorce.
While M. S. A. 518.17 confers power on the court in divorce cases to provide in the judgment for the care, custody, and maintenance
The purpose of the statute is to provide both a drastic and effective means of coercing delinquent and recalcitrant husbands to provide the support of their minor children ordered or adjudged as their plain, natural, and legal duty. Our statutes manifest a strong, if not a fundamental, public policy for the imposition of such a duty upon husbands and for the enforcement thereof. Nonsupport of a minor child by its father is a criminal offense. § 617.56; State v. Washnesky,
To effectuate that public policy, the drastic remedy of contempt is provided by § 518.24. The statute in effect declares what is the fact in the absence thereof, viz., — that the failure of the husband to comply with the divorce judgment in such cases is, as every contempt is, an obstruction of the administration of justice, thereby rendering nugatory the court’s judgment or decree and thereby bringing the court itself into disrepute and disrespect among men. The purpose of the power to punish a contempt in this, as in other cases, is to vindicate and to maintain the authority and respect of the court. And, because such is the nature of the remedy and the reason for its exercise, it was the legislative intent that the powers of the court would be exercised at any time necessary for the purposes mentioned.
Unless the statute is construed so as to make the remedy by contempt available after as well as before the children have attained their majority, the wife who has borne the burden of supporting the children which the husband should have borne will be left in the same position as she was prior to enactment of the statute giving her a right to proceed by contempt. Absent statute, the divorced wife may sue the husband to recover the reasonable value of support and maintenance of their minor children which she provided, even where the divorce decree was silent as to maintenance of the children. Spencer v. Spencer,
Because § 518.24 contains no time limitation within which to institute a proceeding for contempt thereunder and because there is no other statutory limitation of such a kind, under well-settled rules there is none. In the absence of statute, as here, there is no limitation as to the time within which an action or proceeding can be brought. Hoyt v. McNeil,
* * We have searched in vain for any statute limiting the time in which an action charging criminal contempt can be maintained. Therefore, unless there is a showing of special circumstances by which delay in instituting the suit has prejudiced the rights of the defendant, the action is not barred by lapse of time.”
True, lapse of time may in certain cases, when combined with other circumstances, operate as a bar to a proceeding, but mere lapse of time and absence from the jurisdiction do not do so. See, Wilson v. Wilson, cited in the note in De Blaquiere v. De Blaquiere, 162 Reprint 1173, 1175.
The authorities are in hopeless conflict as to whether a remedy by contempt is available in a case such as this, as appears in Annotation, 172 A. L. R. 892, 893. The cases from Mississippi, Oklahoma, and Wisconsin support the views of the majority here. Those of
“While I agree that the judgment must be affirmed, I do not consider that the trial court’s jurisdiction to punish for contempt for husband’s failure to pay support money which the court had ordered to be paid to the mother for the support of minor children, terminated upon their reaching their majority. In Lowry v. Lowry,189 Okla. 650 ,118 Pac. (2d) 1015 , it was held that the court lost jurisdiction to enforce by contempt proceedings payment of support money after the minor became of age, on the theory that such proceedings were, (1) for the benefit of a private party, or (2) to coerce payment for a private party. This same objective existed before the minor became of age. The use of contempt proceedings to enforce the payment While the child was a minor was then likewise for the benefit of a private party who was furnishing the support. In my opinion contempt proceedings are not for the benefit of a private party. The contempt consists of failure or refusal of the party to obey an order of the court, and the contempt continues so long as the party fails or refuses to comply with the order of the court. As the court said in In re Milburn (1883),59 Wis. 24 , 34,17 N. W. 965 :
“ ‘The mere fact that the contempt was in proceedings supplementary to a judgment founded upon a contract, did not make it any the less a contempt, nor prevent its being punished as such.’
“And in In re Meggett (1900),105 Wis. 291 , 298,81 N. W. 419 , it was said:
“ ‘But whether a debt exists or not is quite immaterial. The imprisonment is not for the debt, but for disobedience of an order to pay money, made, not because he owed it, but because, after the court had sequestered it after it was property in custodia legis, he had wrongfully diverted it from the court’s control. . . . This is not*468 an imprisonment for debt. It is the exercise of the contempt power inherent in courts of equity to re-establish a status quo wrongfully disturbed. The punishment inflicted, even in civil contempts, where indemnity to another party is the dominant purpose, nevertheless rests upon the power of the court to vindicate its own authority, and to punish for defiance thereof, but to adjust that punishment so as to protect or enforce private rights.’
“The failure or refusal of the defendant to comply with the order of the court constitutes the grounds on which he is "brought before the cowrt, and the only way he can purge this contempt is by complying with the order. Until he has complied with the order or has been released by the court from the duty to comply with it, he is flaunting the authority of the court to enforce its orders and judgments. The fact that further payments are not required when the minor becomes of age does not change the refusal on the part of the defendant to comply with a lawful order still in existence.” (Italics supplied.)
Dissenting Opinion
(dissenting).
I concur in the dissent of Mr. Justice Peterson.