Summary
stating that opinions entered by a trial court are "often exceedingly useful and frequently serve to bring to our attention incidents of importance which would otherwise not be noted in the record, and which could not readily be made to appear, even by bills of exception"
Summary of this case from Rusty's Welding Service v. GibsonOpinion
36389
June 16, 1932
Present, Campbell, C.J., and Holt, Epes, Gregory and Browning, JJ.
1. CONTEMPT — Disobedience of Decree. — For disobedience of its decree a court may inflict summary punishments. Formerly such action was final. Code of 1887, section 4053. A writ of error, however, will now lie. Code of 1919, section 4932.
2. CONTEMPT — Enforcement of the Payment of Alimony — Testimony Introduced in the Divorce Case. — On a rule to show cause in an effort to enforce the payment of alimony not only testimony then introduced is to be considered, but the court may also look to that duly taken in the suit itself.
3. CONTEMPT — Contempt Proceedings to Enforce Payment of Alimony — Proceedings Ancillary to Divorce Suit — Confrontation by Witnesses — Section 8, Article 1, of the Constitution of 1902. — On a rule to show cause in an effort to enforce the payment of alimony, the rule is but ancillary to and in support of the suit for divorce and its decree, and therefore section 8, article 1, of the Constitution of 1902, which in criminal prosecutions gives to the accused the right to be confronted by witnesses, does not apply. It is true that contempt proceedings are sometimes quasi criminal, but whatever be their nature the defendant cannot ask more than to be present at the taking of evidence used against him.
4. CONTEMPT — Proceedings to Enforce Payment of Alimony — Reasonable Doubt — Case at Bar. — The instant case was a contempt proceeding brought to enforce the payment of support money decreed in a divorce suit. It was contended that since this was a criminal prosecution the guilt of the defendant must be proven beyond a reasonable doubt. Non-payment was admitted by defendant. The defendant by way of excuse claimed insolvency. The trial court was satisfied as to the insufficiency of this claim and so the claim was before the Supreme Court of Appeals practically as on a demurrer to the evidence.
5. OPINIONS OF COURTS — Whether Opinion of Trial Court Part of Record — Case at Bar. — While the opinion of the trial court proprio vigore is no part of the record, it may be made a part of the record, and in the instant case the opinion of the trial court was in terms made a part of the record.
6. OPINIONS OF COURTS — Reasons for Trial Court's Decision — Reason Set out in Decree of Written Opinion. — The reasons for the trial court's decision may, with the utmost propriety, be set out in a written opinion filed in the record and made a part of the decree carrying out the decision, and there is no conceivable reason why the grounds for the court's ruling should not be recited in its decree.
7. OPINIONS OF COURTS — Opinion of Trial Court No Substitute for Evidence. — The opinion of the trial court, though made a part of the record, is no substitute for evidence, and statements in it of facts as proven, which are not supported by the evidence, have no probative value.
8. OPINIONS OF COURTS — Opinions of Trial Court — Utility — Practice Approved. — The opinions of the trial court are often exceedingly useful and frequently serve to bring to the attention of the Supreme Court of Appeals incidents of importance which would otherwise not be noted in the record, and which could not readily be made to appear, even by bills of exception. The Supreme Court of Appeals approves the practice of opinions by the trial court.
9. CONTEMPT — Proceedings to Enforce Payment of Alimony — Evidence and Occurrences Prior to Hearing of Rule — Case at Bar. — On a rule to show cause in an effort to enforce the payment of alimony, the trial court had the right to consider all that had occurred in the cause prior to its hearing on the rule, and that in the instant case it did consider evidence theretofore taken specifically appeared in a certificate of exceptions. That is to say, defendant had not been taken by surprise and it was his privilege to bring before the Supreme Court of Appeals all testimony which the court could, and did, consider. That there was such evidence is concluded by the statement in the written opinion of the trial court and by the certificate of exceptions.
10. JUDGMENTS AND DECREES — Presumption that Judgment or Decree Is Right — Burden on Appellant to Show Reversible Error — Opinion of Trial Court — Case at Bar. — In the instant case there was a decree against defendant in a proceeding by contempt to enforce the payment of alimony. The decree rested in part at least upon evidence not before the Supreme Court of Appeals, but which might have been brought before that court by appellant who charged that it did not in fact support the decree. The judgment of the trial court is presumed to be right and must stand until reversible error has been shown. That burden rests upon the defendant. In these circumstances he has no standing at all unless it be that the court's recitation in its written opinion made a part of the record of what had been done and proven together with testimony taken at the rule and properly preserved, sustains him, and so it is to his interest that the Supreme Court of Appeals should examine the opinion of the trial court. Without it defendant is out of court.
11. ALIMONY — Excuse for Failure to Pay — Inability to Pay — Unwillingness. — Inability to pay alimony decreed in a divorce suit because of poverty or insolvency is an adequate excuse, but unwillingness is not a substitute for inability.
12. CONTEMPT — Alimony — Inability to Pay as Excuse — Evidence Held Not to Show Inability — Case at Bar. — In the instant case, on a rule to show cause in an effort to enforce the payment of alimony, defendant pleaded inability to pay. Defendant protested his insolvency, but it appeared that he was running a business of some magnitude in which there were five employees, one of whom was paid $100.00 a month. The lower court very justly reached the conclusion that the failure of this business to make money was an insufficient excuse; and this, coupled with his conduct through all the course of litigation, led the trial court to believe that it had to deal with willful disobedience.
Held: That there was no error in the judgment of the trial court finding defendant guilty of contempt and sentencing him to jail for fifteen days without bail.
Error to a judgment of the Law and Equity Court of the city of Richmond, in a contempt proceeding to enforce the payment of alimony. Judgment for complainant. Defendant assigns error.
Affirmed.
The opinion states the case.
Harrison C. Eacho and Norman L. Flippen, for the plaintiff in error.
Lovenstein Lovenstein, for the defendant in error.
This is a contempt proceeding brought to enforce payment of support money decreed in a divorce suit. Mrs. Lindsey, the plaintiff below, in November, 1930, brought suit for divorce on the grounds of extreme cruelty and constructive desertion. To support herself and her three months old child she asked for some temporary allowance. That motion, after notice, was heard on November 20, 1930. She testified that she and her child were living in the home of a friend; that she had no independent means and that fifteen dollars a week was absolutely necessary to sustain herself and it. Her husband, Henry Dorsey Lindsey, hereafter styled defendant, appeared and testified. He said that he had no property, other than a lunch room in the city of Richmond already heavily indebted for supplies purchased; that he was doing business at a loss and was able to continue to operate only through the generosity of an uncle, John B. Wood, who had already lent him thousands of dollars; that he managed this business himself and gave to it his entire attention and in its conduct employed five persons, paying one $25.00 a week; and that because the business was a losing venture he did not feel justified in withdrawing money from it.
After hearing, the trial court, by decree of date November 20, 1930, ordered him to pay to his wife for the support of herself and child, pendente lite, $15.00 a week. On December 18, 1930, he filed his answer and cross-bill in which he denied all material allegations of the bill and charged that the plaintiff had deserted him. He, too, sought a divorce. On the issue thus made no evidence has been taken, and neither party has asked for any order speeding the cause.
Payment of this weekly allowance was not made with regularity and there were a number of informal conferences, some in court and some in chambers. Plaintiff complained that the defendant was in arrears, he would excuse his default by saying that his business was not prosperous and that to keep it going he had to turn over to creditors and employees all of his cash receipts, the court would admonish him as to his duty in the premises and the defendant would give assurances to it that there would be no cause for future complaint.
On August 5, 1931, the parties by agreement appeared before the court, at which time the defendant was eight weeks in arrears. He then said he had made an arrangement with his uncle whereby he was to be advanced sums necessary to pay off creditors of the business; that it was to be incorporated with him as business manager at a salary of $20.00 a week, and that there would be coming to him from that source, on August 8, 1931, $40.00 out of which he would then pay $30.00 on account. This payment was not made and at the instance of the plaintiff a rule to show cause issued and was heard on August 14, 1931. At that hearing plaintiff introduced no evidence.
The defendant admitted that he was in arrears, but said that he was utterly without means; that his uncle who controlled the restaurant business had refused to let him draw anything by way of salary and that he had without avail made strenuous efforts to borrow money to comply with his promise. He confessed that he was reminded by his counsel of his promise to the court, and that his statement then made that $30.00 was being sent by a messenger, was untrue. He further admitted that he mailed to his wife on that day a worthless check for $15.00, on which he had written this unwarranted memorandum:
"Relief of inmates 1617 Lower Street."
He also testified that the condition of his back was such that he would at times have to stop work and rest for a day or two.
The trial judge in a written opinion, filed with and made a part of the record, said:
"The defendant has appeared before the court on as many as six occasions and the court has had ample opportunity to observe from his testimony and his conduct and bearing his attitude towards the plaintiff, the court and the world in general. Viewing the conduct of the defendant in the light of all the circumstances, I have arrived at the very firm conviction that he is to be classified in that category of persons who will recognize and submit to no authority which conflicts with their own wilful purpose."
For failure to comply with the court's decree the defendant has been sentenced to fifteen days' confinement in jail. That judgment is now before us on a writ of error.
For disobedience of its decree a court may inflict summary punishments. Code, section 4521; Forbes v. State Council, 107 Va. 853, 60 S.E. 81. Formerly such action was final. Code of 1887, section 4053. A writ of error will now lie. Code 1919, section 4932.
[2, 3] On a rule to show cause in an effort to enforce the payment of alimony not only testimony then introduced is to be considered, but the court may also look to that duly taken in the suit itself. Branch v. Branch, 144 Va. 244, 132 S.E. 303. The rule is but ancillary to and in support of the suit and its decrees, and so we are not concerned with section 8, article 1, of our State Constitution, which in criminal prosecutions gives to the accused the right to be confronted by witnesses. It is true that contempt proceedings are sometimes quasi criminal, but whatever be their nature the defendant cannot ask more than to be present at the taking of evidence used against him.
It is also contended that since this is a criminal prosecution guilt must be proven beyond a reasonable doubt. We need not linger over this contention. Nonpayment is admitted. The defendant by way of excuse claims insolvency. The trial court was satisfied as to its insufficiency and so this claim is before us practically as on a demurrer to the evidence. Branch v. Branch, supra.
[5, 6] It is argued that the opinion of the trial court is no part of the record. Proprio vigore it is not, but it may be made a part of it.
In Stover v. Stover, 60 W. Va. 285, 54 S.E. 350, it is said: "It is commendable in the judge of a circuit court to file in a cause his written opinion therein, and it is not reversible error to make the same a part of the record in the case." Syllabus by the court.
In Jackson v. Valley Tie and Lumber Co., 108 Va. 714, 62 S.E. 964, 965, a detailed statement of sundry incidents and their sequence was set out in the final decree. Complaint was made of this procedure. The court said: "* * * we are unable to appreciate the force of the contention that this method of stating the reasons for the court's decision is in violation of established rules of equity practice. The court might have, with the utmost propriety, set out its reasons for the decision rendered in a written opinion filed in the record and made a part of the decree carrying out the decision, and there is no conceivable reason why the grounds for the court's ruling should not be recited in its decree."
That is to say we have held that all of this might be set out in the decree itself, or in an opinion which may be made part of the decree or of the record. In the instant case the opinion is in terms made a part of the record just as was done in Whitaker v. Lane, 128 Va. 317, 104 S.E. 252, 11 A.L.R. 1157.
[7, 8] Of course, such an opinion is no substitute for evidence, and statements in it of facts as proven, which are, not supported by it, have no probative value. Clark v. Milens (C.C.A.) 32 F.2d page 1004. These opinions are, however, often exceedingly useful and frequently serve to bring to our attention incidents of importance which would otherwise not be noted in the record, and which could not readily be made to appear, even by bills of exception. We approve the practice.
The trial court had the right to consider all that had occurred in the cause prior to its hearing on the rule, and that it did consider evidence theretofore taken specifically appears in certificate of exceptions numbered 3. That is to say, defendant has not been taken by surprise and it was his privilege to bring before us all testimony which the court could, and did, consider. That there was such evidence is concluded by the statement written into the opinion, and, as we have seen, by said certificate number 3.
This then is the situation. We have a decree which rests in part at least upon evidence not before us, but which might have been brought before us by one who charges that it does not in fact support the decree. The judgment of the trial court is presumed to be right and must stand until reversible error has been shown. That burden rests upon the defendant. In these circumstances he has no standing at all unless it be that the court's recitation of what had been done and proven together with testimony taken at the rule and properly preserved, sustains him, and so it is to his interest that we should examine this opinion. Without it he is out of court.
Inability to pay because of poverty or insolvency is an adequate excuse. ( Camden v. Virginia Safe Dep. Trust Corp., 115 Va. 20, 78 S.E. 596), but unwillingness is not a substitute for inability.
The evidence offered to defeat the allowance when first made is quite similar to that introduced at the hearing on the rule. The defendant protested his insolvency, but it appeared that he was running a business of some magnitude. There were five employees, one of whom was paid $100.00 a month. The court, very justly, reached the conclusion that the failure of this business to make money was an insufficient excuse. That is now the common lot of many ventures, and if accepted will amount to a moratorium on alimony in general. The situation was not sufficiently desperate to close down the enterprise and so this lunch room continued to do business, certainly until the hearing of the rule. When enforcement of payment was attempted he testified that his uncle had refused to pay him anything, although there is nothing to show that conditions had changed from the time when payment was promised. In any event, this plaintiff continued to serve as manager for this lunch room after he had been notified that his pay for such services was at an end. Utterly insolvent, he has been able to retain distinguished counsel and to prosecute, not in forma pauperis, an appeal to this court, with that uncle as his surety who has refused to pay him for his work. This, coupled with his conduct through all the course of litigation, led the court to believe that it had to deal with wilful disobedience.
This case in some of its aspects is not unlike that of Branch v. Branch, supra. The allowance is greater than in the Branch Case and Branch was in better physical condition, but Branch had to support his aged mother. Lindsey has no such obligation resting upon him. Branch worked upon a small and impoverished farm. Lindsey was the manager of a business which at least was maintained as a going concern, and his services, according to the judgment of his uncle, were worth $20.00 a week.
It is unnecessary to enlarge upon the obligations of a man to support his baby child, and if his wife was at fault he has had time not availed of to show that fact to the court.
We find no error in the judgment of the trial court and it is accordingly affirmed.
Affirmed.