Larson v. Larson , 248 Wis. 352 ( 1946 )

^* Motion for rehearing denied, with $25 costs, on April 12, 1946. Divorce. This appeal is from a part of an amended judgment entered August 7, 1945. The parties were married on October 5, 1926. of the marriage three children, Russell, Lois, and Erwin, were born, now eighteen, sixteen and one-half, and fourteen years old, respectively.

The plaintiff commenced an action for divorce on January 16, 1932, and judgment was entered thereon on February 16, 1932. On July 17, 1945, the defendant being largely in arrears in the payment of alimony and support money, the plaintiff obtained an order which was served upon the defendant requiring him to show cause why the defendant should not be held in contempt and why the court should not grant a money judgment in favor of the plaintiff and against the defendant for the arrearages of alimony and support money. The matter was heard, an order was entered on July 28, 1945, and the judgment as amended was entered as already stated. The defendant appeals "from all the contempt provisions, features and characteristics of the amended judgment."

The amended judgment, so far as material here, is as follows:

"It is adjudged and decreed that the plaintiff, Mildred Larson, 1838 North 37th street, Milwaukee, Wisconsin, do have and recover an amended judgment in her favor and against the defendant, Edwin Larson, 1001 So. 74th street, West Allis, Wisconsin, by reason of the alimony and support money arrearage now determined and computed to be in the sum of three thousand eight hundred ($3,800) dollars, together with the sum of one hundred ($100) dollars to be added thereto as and for a contribution toward the payment of the plaintiff's attorney's fees, or a total sum of three thousand nine hundred ($3,900) dollars, and that the defendant Edwin Larson, shall pay said sum of money to the clerk of the county court, Washington county, Wisconsin, for the use and benefit of the plaintiff,Mildred Larson. "It is further adjudged and decreed that in the event the defendant, Edwin Larson, shall fail to pay the sum of money herein before ordered paid, the plaintiff, Mildred Larson, shall have the right to take further proceedings, either in contempt proceedings in this court or any other proceedings in this court or any other court that she may deem necessary in order. to enforce collection of the moneys presently due her.

"It is further adjudged and decreed that the defendant,Edwin Larson, is guilty of contempt of court for his wilful and contumacious failure to comply with the previous orders and judgment of this court, and failing to make alimony and support money payments for the support and maintenance of the plaintiff, Mildred Larson, and his three minor children, and that the defendant, Edwin Larson, shall be committed to the county jail, Washington county, West Bend, Wisconsin, and he shall remain in the said county jail until the total amount of three thousand nine hundred ($3,900) dollars is paid to the plaintiff, Mildred Larson, but that the said defendant, EdwinLarson, may purge himself of the finding that he has been guilty of contempt of court by paying and continuing to pay the sum of fifty ($50) dollars a month to the clerk of the county court, Washington county, Wisconsin, the first payment to begin on August 1, 1945, and to continue on the first day of each and every successive month thereafter, until the total sum of three thousand nine hundred ($3,900) dollars is paid in full, but that the defendant, Edwin Larson, shall be credited with the sum of thirty-five ($35) dollars each and every month hereafter if paid by him on the arrearage of alimony and support money, and that fifteen ($15) dollars of the fifty ($50) dollars ordered paid each month is to provide for the present alimony and support money for the use and benefit of the plaintiff, Mildred Larson, and the two minor children, LoisLarson and Edwin Larson; that the clerk of the county court, Washington county, Wisconsin, shall disburse whatever sums are paid by the defendant, Edwin Larson, to the plaintiff,Mildred Larson." The appeal presents nothing but a question of law, — Did the circuit court have jurisdiction to insert in the judgment the provisions for enforcing the same by contempt?

No question is raised as to the amount or to the fact that it is due nor is the finding of the court that the defendant —

"is guilty of contempt of court for his wilful and contumacious failure to comply with the previous orders and judgment of this court, and failing to make alimony and support-money payments for the support and maintenance of the plaintiff,Mildred Larson, and his three minor children," — questioned.

The question raised on this appeal is answered by reference to sec. 247.32, Stats. 1943, which provides:

"After a judgment providing for alimony or other allowances for the wife and children, or either of them, or for the appointment of trustees as aforesaid the court may, from time to time, on the petition of either of the parties, revise and alter such judgment respecting the amount of such alimony or allowance and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any Judgment respectingany of the said matters which such court might havemade in the original action. . . ."

Sec. 272.02, Stats., provides:

"A judgment which requires the payment of money or the delivery of property may be enforced in those respects by execution. Where it requires the performance of any other act a certified copy of the judgment may be served upon the party, person or officer who is required to obey the same, and if he refuse he may be punished for contempt, and his obedience enforced."

In this case the defendant was required by the original judgment to provide for the support and maintenance of his wife and children. Although of sufficient ability he has contumaciously refused to comply with the judgment. The court now provides that he shall pay it in the manner prescribed and enforcement of the judgment may be made by contempt proceedings, if he continues to disregard his duty. That the judgment may be enforced by contempt proceedings is held in Staples v. Staples (1894), 87 Wis. 592, 58 N.W. 1036. The judgment in this case is not one for a gross sum payable at once. A judgment may be enforced by contempt even though it is a lien upon the property of the husband. Rennerv. Renner (1906), 127 Wis. 371, 106 N.W. 846.

By the Court. — That part of the amended judgment appealed from is affirmed.