Phillips v. Phillips , 165 Wash. 616 ( 1931 )

TOLMAN, C.J., dissents. This is a contempt proceeding brought by Louise Pauline Phillips in January, 1931, against Marion Ross Phillips, because of his failure to pay support money. The appeal is from an order of the superior court adjudging him to be in contempt of court, but that the same might be purged by his paying plaintiff fifty dollars per month beginning as of January 1, 1931, until the sum of $1,839 is paid, else he be committed to jail and confined until released by order of court.

The record discloses that the parties were divorced by a judgment of the superior court for King county, in which cause a decree was entered in January, 1925, by the terms of which appellant was ordered to pay to the respondent, for the support of herself and their sixteen year old daughter, one hundred dollars per month until the daughter should arrive at the age of twenty-one years, and for one year thereafter to pay to the respondent fifty dollars per month.

[1] The first assignment of error questions the power of the court to enforce, by contempt proceedings, unpaid accruals of alimony under the decree.

The rule in this state is contrary to this contention. As to installments of alimony,

". . . the rights and liabilities of the parties become absolute and fixed at the time provided in the decree for their payment, and to this extent the judgment is a final one." Harrisv. Harris, 71 Wn. 307, 128 P. 673; Beers v. Beers,74 Wn. 458, 133 P. 605.

The party to whom such payments are to be made has, to the extent of alimony due and unpaid, such an interest therein that the court has no power to take it away. Beers v. Beers,74 Wn. 458, 133 P. 605; Selvin v. Selvin, 135 Wn. 186,237 P. 304; Kinne v. Kinne, 137 Wn. 284, 242 P. 388;Rehberger v. Rehberger, 153 Wn. 591, 280 P. 8; Boudwin v. Boudwin,159 Wn. 262, 292 P. 1017.

In In re Cave, 26 Wn. 213, 66 P. 425, 90 Am. St. 736, it was held, according to the syllabus:

"Under the inherent power of a court to enforce its decrees and orders according to its equity powers, a decree for alimony may be enforced by attachment for contempt, even in the absence of a statute authorizing such procedure,"

and in the opinion in that case it was said:

"In this state no rule is provided by statute for the enforcement of such decrees, but the rule of attachment has been generally followed in the practice and approved by this court,"

and, in Ruge v. Ruge, 97 Wn. 51, 165 P. 1063, L.R.A. 1917F 721, contempt proceedings is mentioned as one of the means provided by law for the collection of alimony.

[2] The contention made in the second assignment of errors is that, admitting such power, the exercise of it is discretional with the trial court, and that the entry of such coercive order under the facts in this case constituted an abuse of discretion requiring a reversal.

It appears that the amount of alimony fixed in the decree was agreeable to the appellant at that time. For several months after the decree was entered, his earnings were considerably reduced, resulting in his paying no alimony for a while, whereupon he was brought into court in contempt proceedings, but was allowed to go upon an oral understanding that, if he would pay seventy-five dollars per month, contempt proceedings would not be enforced against him. A number of times thereafter he was cited in contempt for failure to make payments, but was allowed to go each time on payment of seventy-five dollars per month and finally on payments of fifty dollars per month, not as modifications of the decree as to total amounts to be paid, but as being sufficient to save him from being in contempt. It also appears that, at times, he paid one hundred dollars per month for short intervals.

Subsequent to the decree, and at a time not shown by the record, appellant was married the second time, and thus assumed the burden of caring for another family, which, however, did not relieve him from the obligation fixed by the decree. State exrel. Brown v. Brown, 31 Wn. 397, 72 P. 86, 62 L.R.A. 974.

Finally, upon his failure to make payments the present proceedings were brought. He filed an affidavit in the nature of testimony, and testified orally at the hearing. There is no suggestion of willingness on his part to pay anything in the future. The gist of his position and argument is that he is not able to pay.

In Croft v. Croft, 77 Wn. 620, 138 P. 6, in discussing this subject, the case of State ex rel. Smith v. Smith,17 Wn. 430, 50 P. 52, was reaffirmed as follows:

"It is the duty of courts to enforce their orders, and when it comes to their knowledge that such orders are not obeyed they should require and enforce such obedience by punishment for contempt. The rule is that the burden of showing inability to comply with an order of this nature is upon the respondent. This is so well settled that we deem it unnecessary to make any citations from the numerous lines of authorities upon the subject."

No such showing was attempted by the appellant here. In his answering affidavit, he stated that his obligations for doctor's bills, grocery bills and other living expenses had accumulated, he promising such creditors to commence making payments about the time this hearing occurred, and that, after setting apart a sufficient amount of his salary to pay his indebtedness, other than the alimony, he did not have enough left to provide more than the necessities of life for himself and family. Significantly, there is not in the record one word of detailed information concerning the amount of the doctor's bills, grocery bills or living expenses referred to by him; nor as to what such things had amounted to during preceding years after the decree providing for alimony had been entered.

Instead, therefore, of meeting the burden of showing inability to pay, he simply states a conclusion in requesting the exercise of a favorable judicial discretion. The appellant, in open court, testified: "Two hundred fifty dollars per month has been my salary earnings since the decree. I have made payments regularly, monthly, since the last contempt proceedings in 1926." This and other evidence in the case clearly support the finding of the trial court:

". . . That the defendant at all times has had the financial ability to pay the plaintiff the sum of fifty dollars per month and has an earning capacity and has been earning the sum of two hundred fifty dollars per month, and, from all of the evidence, the court finds that the failure of the defendant to pay plaintiff the aforesaid sum at the rate of fifty dollars per month is willful and contemptuous."

Clearly, in our opinion, there was no abuse of discretion on the part of the trial court in making the order complained of.

[3] The third contention on the appeal is that payments which accrued more than six years prior to the commencement of this proceeding in contempt are barred by the statute of limitations. To this contention there are two answers. First, the record fails to show that any such plea or defense was made in the trial court; second, more than six thousand dollars of alimony accrued under the terms of the decree, of which total amount only $1,839 remained unpaid, according to the court's finding incorporated in the present judgment; and there is no finding, or requested finding, that, after the application of payments made, any installment of alimony beyond the period of the statute of limitations remains unsatisfied.

Judgment affirmed.

PARKER, MAIN, BEALS, MILLARD, BEELER, HERMAN, and HOLCOMB, JJ., concur.