Phillips v. Phillips

180 P. 907 | Nev. | 1919

By the Court,

Sanders, J.:

This is primarily and essentially a contempt proceeding, initiated upon the affidavit of the plaintiff in a divorce action, setting forth the failure of the defendant therein to pay alimony awarded the plaintiff in connection with an absolute divorce.

Upon the presentation and filing of the affidavit entitled in the cause, the court below made an order commanding the defendant to show cause why he should not be punished as for contempt for his misconduct in failing to comply with the order of the court as set forth in the affidavit, “or such other order or orders as the court may deem meet and just to make in the premises.”

For answer to the show-cause order the defendant set up certain legal defenses in bar of the proceeding and his inability to comply with the order.

Upon a full hearing the court made its findings of fact and conclusions of law, and upon these findings caused to be entered an order, which is as follows:

“It being satisfactorily shown to the court that the defendant has failed to obey the order of this court, entered herein on the 17th day of September, 1918, providing for the payment of fifty ($50.00) dollars per month to the plaintiff, Ruth Phillips, on the 15th day of each and every month until such time as the plaintiff shall die or remarry; and on the hearing on the ‘order to show cause,’ had in this court, it having been shown that the defendant is indebted to the plaintiff in the sum of twenty-five hundred and seventy-five ($2,575.00) dollars under said order, and said matter having been submitted on Saturday, November 30, 1918, and the court being fully advised in the premises, now orders that said defendant be, and he is, hereby ordered to pay to the plaintiff, forthwith, the sum of five hundred ($500.00) dollars, to be credited on said total, the balance due thereon to be paid plaintiff by defendant at the rate of .fifteen ($15.00) dollars per month, on the 15th day of each and every month, at the time the fifty ($50.00) dollars per month is paid as in said order of September 13, 1913, provided, until said balance of twenty hundred and seventy-five ($2,075.00) dollars on the arrears shall be fully paid and discharged; the fifty ($50.00) dollars per month alimony to continue as in said original order provided.”

From this order the defendant appeals.

While numerous errors ■ are assigned and discussed, we take it that the appellant’s main objection to the order is that the court should have released him from the payment of any sum or sums whatever as alimony, past or future, upon the ground and for the reason that the court in the divorce action was without jurisdiction, power, or authority to award the plaintiff alimony in connection with her decree of absolute divorce. In the view we take of this proceeding and the order, it is unnecessary for us to express any opinion upon this question; but we have a strong impression that this and other courts, whose statute is not unlike that of ours, are committed against this proposition. Lake v. Bender, 18 Nev. 361, 4 Pac. 711, 7 Pac. 74, followed and construed in Tiedemann v. Tiedemann, 172 App. Div. 819, 158 N. Y. Supp. 851, and Id., 36 Nev. 494, 137 Pac. 824, and followed in Powell v. Campbell, 20 Nev. 238, 20 Pac. 158, 2 L. R. A. 615, 19 Am. St. Rep. 350, on the point that the object of the statute regulating divorce was to provide support for the wife and minor children Ex Parte Spencer, 83 Cal. 460, 23 Pac. 395, 17 Am. St. Rep. 266; In Re Cave, 26 Wash. 213, 66 Pac. 426, 90 Am. St. Rep. 736.

1. Our objection to the order is the form in which it is entered, but we do not regard this as being so material as to justify its being vacated. It is futile as a process either for the enforcement of the original order or for the execution of its own mandates. It leaves the respondent to pursue such methods for its enforcement, in case the appellant should disobey its direction, as she may be advised.

2. It is insisted that the evidence does not support the finding that the appellant is able to comply with the order. This is a matter left entirely with the lower court, and we decline to disturb its finding in this respect,

The order is affirmed.