Ex Parte Sinnitt , 178 Okla. 595 ( 1936 )

Brooks Sinnitt petitions this court for a writ of habeas corpus, alleging that he is illegally restrained of his liberty by the sheriff of Jackson county, Okla., under and by virtue of a judgment of the district court of Jackson county, Okla., adjudging him guilty of indirect contempt for his failure to comply with an order of that court. He alleges said order to be void.

Petitioner's wife was granted an absolute divorce from him on October 12, 1925, and the journal entry of judgment contains the following:

"It is further ordered and adjudged that the defendant pay to the plaintiff as her reasonable alimony in money the sum of fifty dollars ($50) each month, payable on the 15th day of each month, said amount to be paid the county clerk of Jackson county for the use of said Exer Sinnitt and her children Max L. Sinnitt and John Sinnitt."

Relying upon the rule of law announced in the cases of Odor v. Odor, 149 Okla. 63, 299 P. 202, Flaxman v. Flaxman,169 Okla. 65, 35 P.2d 950, and West v. West, 134 Okla. 226,273 P. 209, that an award of alimony which is indefinite as to the total amount to be paid is void, and that no conviction for contempt for failure to obey can be sustained, the petitioner seeks his release.

The petitioner has not taken into account the rule of law announced in the cases of Dutton v. Dutton, 97 Okla. 234,223 P. 149, Boulanger v. Boulanger, 127 Okla. 103, 260 P. 49, and Hadley v. Hadley, 129 Okla. 219, 280 P. 1097, to the effect that where the court decrees the payment of a certain sum monthly to the wife, without limitation as to ultimate amount, for alimony and for the use or support of the wife and their children, and where no other provision is made for the support of the children, the courts will deem that such monthly sum is for the support of the children and their education, even though it be called alimony, and will not hold the decree to be void because of indefiniteness as to the ultimate amount of alimony. Writ denied.

McNEILL, C. J., OSBORN, V. C. J., and BUSBY, PHELPS, CORN, and GIBSON, JJ., concur. WELCH, J., dissents. RILEY, J., absent.