Hutchinson v. Hutchinson

In Banc. The errors assigned on this appeal are based on the court's order directing defendant to pay $150 suit money and $50 per month as temporary alimony pending the suit in the Circuit Court. Defendant filed an affidavit for the purpose of showing that he was financially unable to make the payments ordered. The learned Circuit Court ruled against defendant, held him to be in contempt, and denied him the right to participate in the trial of the case. That portion of the decree referring to the ruling denying him to participate in the trial is as follows:

"Now at this time the court being fully advised in the premises, it is ordered as a punishment for defendant's contempt of court that said defendant be not allowed to appear in this suit either personally or by his attorneys or to cross-examine the plaintiff's witnesses or to participate in the trial of said suit or to offer any testimony in support of the allegations of his further and separate answer and cross complaint herein."

Defendant asked permission to cross-examine plaintiff's witnesses, to introduce testimony controverting the evidence advanced by plaintiff, to prove the allegations of his cross-complaint, and otherwise participate in the trial as a litigant. The court denied defendant's requests. Defendant appeals from the entire judgment and decree. The only ground for charging defendant with contempt is his failure to pay the money ordered to be paid as suit money and temporary alimony. Has a court authority to prevent a defendant from defending himself because he fails to obey the court's order to pay temporary alimony or suit money in a pending divorce suit is the question presented by this appeal. Plaintiff and respondent makes no appearance in this court.

REVERSED. The question presented by this appeal is of first impression here. It has been determined by the highest court in the land. The case of Hovey v. Elliott, 167 U.S. 409 (42 L. Ed. 215,17 Sup. Ct. Rep. 841), involved the same principle. The opinion in that case was written by Mr. Justice WHITE, afterwards Chief Justice, and is exhaustive. From that opinion we quote:

"On February 12, 1878, the Supreme Court of the District of Columbia at general term made decree as follows:

"`The answer of defendants having been removed from the files for their contempt in refusing to obey the order of court and deposit in the registry the sum of $49,297.50, it is now ordered, adjudged and decreed that the bill be taken pro confesso against them.'"

"* * To say that courts have inherent power to deny all right to defend an action and to render decrees without any hearing whatever is, in the very nature of things, to convert the court exercising such an authority into an instrument of wrong and oppression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends."

That such an exercise of power violates the Fourteenth Amendment to the federal Constitution is settled by a later decision of the federal Supreme Court in which the same eminent justice wrote the opinion from which we take the following:

"The ruling in Hovey v. Elliott was that, to punish for contempt by striking an answer from the files and condemning, as by default, was a denial of due process of law, and therefore repugnant to the 14th Amendment." Hammond Pack. Co. v. State,81 Ark. 519 (100 S.W. 407, 1199, 126 Am. St. Rep. 1047),212 U.S. 322, 15 Ann. Cas. 645, 53 L. Ed. 530, 29 Sup. Ct. Rep. 370, 379).

This ruling makes it clear that the decision in Hovey v.Elliott is binding on this court.

The principle is especially applicable to divorce cases. In such cases the state is interested in maintaining the marital relation. Public policy forbids collusive divorce cases. Ever since the decision in Hovey v. Elliott, above, courts of last resort of all the states having the principle under consideration have followed in divorce cases Hovey v. Elliott. Sibley v. Sibley, 76 A.D. 132 (78 N.Y. Supp. 743), overrules earlier New York cases holding to the contrary. The case of Sibley v. Sibley was a suit instituted by a wife against her husband for legal separation and for alimony. Defendant's answer was stricken, and defendant not allowed to participate in the trial as the learned Circuit Court ruled in the case at bar. In Sibley v. Sibley, above, the opinion contains the following pertinent language:

"The judgment deprives the appellant of property and of contract property rights, and his exceptions fairly present the question as to whether his property has been taken without due process of law, within the meaning of section 1 of the 14th amendment to the Federal Constitution. The defendant did not institute the action and he did not ask that it be tried. The plaintiff forced it to trial against his will, and a judgment resulted which deprived him of property without his having been heard in defense of his rights. This the Supreme Court of the United States has quite recently unanimously decided may not be done. (Hovey v. Elliott, 167 U.S. 409 [42 L. Ed. 215,17 Sup. Ct. Rep. 841].)" 76 App. Div. (N.Y.) 132, 135 (78 N.Y. Supp. 745).

A very instructive case is Bennett v. Bennett, 15 Okla. 286 (81 P. 632, 83 P. 550, 70 L.R.A. 864), 208 U.S. 505 (52 L. Ed. 590, 28 Sup. Ct. Rep. 356). In the last case cited the question under consideration was thoroughly discussed from various angles. The principle is announced that one in contempt will not be granted a favor by the court until he has purged himself of the contempt. The court has not the power to deprive the contemnor of a right as distinguished from a favor.

"In an action for a divorce the court has no power, because the defendant has failed to pay suit money and temporary alimony required of him, to strike out and disregard depositions filed by him in defense of the suit, and grant a final decree of divorce against him." Point 2 in syllabi to Trough v. Trough, 59 W. Va. 464 (53 S.E. 630, 8 Ann. Cas. 837, 115 Am. St. Rep. 940, and valuable note beginning in page 950).

This opinion quotes at length from Windsor v. McVeigh,93 U.S. 274 (23 L. Ed. 914), from which we adopt the following excerpt:

"The order in effect denied the respondent a hearing. It is alleged he was in the position of an alien enemy, and could have no locus standi in that forum. If assailed there, he could defend there. The liability and right are inseparable. A different result would be a blot upon our jurisprudence and civilization. We cannot hesitate or doubt on the subject.' * *

"* * A sentence of a court pronounced against a party without hearing him or giving him an opportunity to be heard, is not ajudicial determination of his rights, and is not entitled torespect in any other tribunal.

"It was decided in Cason v. Cason, 15 Ga. 405, that the neglect or refusal of the defendant to comply with the order of the court requiring him to pay temporary alimony pending the divorce did not authorize the court to deny to the party his right to defend the libel. Bachelor v. Bachelor, 30 Wash. 639,642 (71 P. 193).

From the last case cited we take the following also:

"The court, however, upon the motion of the plaintiff, ordered the answer and cross-complaint of defendant to be stricken, for the reason that the defendant was in contempt of court in not paying the alimony theretofore adjudged to be paid by the court. This we think was reversible error, underuniform authority. The authorities are divided in ordinary cases upon the question of the court's authority to refuse to permit a defendant to answer, where the defendant is in contempt of court and has not purged himself thereof; but there is noconflict in authority, we think, in a divorce proceeding, in which the public, as well as all individuals, have an interest."

See, also, the cases cited in Bachelor v. Bachelor.

"It is fundamental to the administration in divorce suits that one cannot be deprived of his rights or property without due process of law. Hovey v. Elliott, 167 U.S. 409 (42 L. Ed. 215,17 Sup. Ct. Rep. 841, 17 Rose's Notes 1096); Windsor v.McVeigh, 93 U.S. 274 (23 L. Ed. 914). Besides, public policy forbids that a husband's refusal to pay suit money or temporary alimony should deprive him of his right to defend a suit for divorce. 2 Bishop on Marriage and Divorce, § 1095, and cases cited. McNamara v. McNamara, 86 Neb. 631 (126 N.W. 94, 21 Ann. Cas. 451, 27 L.R.A. (N.S.) 1062, and note). One in contempt of the order of the court in such cases must be punished in some other manner than by being deprived of his defense. Foley v.Foley, 120 Cal. 33 (52 P. 122, 65 Am. St. Rep. 147.)" Stateex rel. Scott v. Kittle, 86 W. Va. 587 (104 S.E. 44, 45);Coker v. Norman, 162 Ga. 351 (133 S.E. 740).

Numerous other cases could be cited. Sufficient number of cases has been cited to clearly demonstrate that the learned Circuit Court erred in denying defendant his right to make his defense. The judgment and decree are reversed and the case is remanded, with directions to proceed in accordance with this opinion.

REVERSED AND REMANDED.