McDonald v. McDonald , 55 Idaho 102 ( 1934 )

I am not in accord with that portion of the foregoing opinion wherein it is held the district court had jurisdiction to issue the order relieving McDonald, pendente lite, from his contractual obligation to make payments of money to Mrs. Martin.

In that opinion the order in question is referred to as a permissive order running to McDonald. This is correct. The order is not an injunction but assumes to permit McDonald to withhold payments due to his former wife pursuant to a contract which was entered into between them prior to their divorce and which was modified after the decree of divorce was entered so as to require payments from him to her in specified amounts at specified times. The decree of divorce does not require McDonald to pay anybody anything. It was attempted by this order, procured ex parte in the divorce case, to protect him in refusing to pay money to her which their contract obligated him to pay. The question is, had the court jurisdiction to make the order. It is said in the opinion:

"The purpose of the order and the reason for obtaining the same was to place plaintiff in a position where, in the event the court should hold that the contract was a part of the decree of divorce and constituted a provision for the payment of alimony, plaintiff would not be in contempt of court for a failure to comply with the provisions of the decree and thereby be denied relief until he purged himself of contempt."

McDonald would not be guilty of contempt for failure to make a payment which the court had not ordered him to make. The decree must, and does, speak for itself and shows that McDonald was not thereby required to pay money to his former wife. The amounts of these payments and times they were to be made were fixed by a contract entered into between them after their divorce.

The court was without jurisdiction to make the order relieving McDonald from making payments pendente lite; not without jurisdiction of the parties, but of the relief it sought to grant, and the invalidity of the order appears from an inspection of the judgment-roll.

"In addition to the jurisdiction of the parties and the subject matter, it is necessary to the validity of a judgment that the court should have jurisdiction of the question which its judgment assumes to decide, or of the particular remedy or relief which it assumes to grant." (Gile v. Wood, 32 Idaho 752,754, 188 P. 36, 37, and cases therein cited; Miller v. Prout,33 Idaho 709, 197 P. 1023; Maloney v. Zipf, 41 Idaho 30,237 Pac. 632; Backman v. Douglas, 46 Idaho 671, 270 P. 618;Baldwin v. Anderson, 51 Idaho 614, 8 P.2d 461; Angel v.Mellen, 48 Idaho 750, 285 P. 461; Wright v. Atwood, 33 Idaho 455,195 P. 625.)

In Nixon v. Tongren, 33 Idaho 287, 193 P. 731, the second section of the syllabus, which was by the court, is as follows:

"The district court may at any time vacate or set aside its judgment previously entered when it is apparent from the face of the judgment-roll that such judgment is void."

That rule applies to orders as well as judgments. In Kerns v.Morgan, 11 Idaho 572, 581, 83 P. 954, 957, this court said:

"We conclude that the order of January 7th was unauthorized and void, and the court had the power to vacate and set aside such order on his own motion or at the instance of any person affected thereby at any time the matter might be called to his attention." See, also, Gile v. Wood, 32 Idaho 752, 188 P. 36;Miller v. Prout, 33 Idaho 709, 197 P. 1023; Jensen v. Gooch,36 Idaho 457, 211 P. 551; Kline v. Shoup, 38 Idaho 202,226 Pac. 729; Maloney v. Zipf, 41 Idaho 30, 237 P. 632; Backman v.Douglas, 46 Idaho 671, 270 P. 618; Baldwin v. Anderson,51 Idaho 614, 8 P.2d 461; Angel v. Mellen, 48 Idaho 750,285 Pac. 461.)

In People v. Davis, 143 Cal. 673, 77 P. 651, 652, cited and relied on in Gile v. Wood, supra, it is said:

"The power of a court to vacate a judgment or order, void upon its face, is not extinguished by lapse of time, but may be exercised whenever the matter is brought to the attention of the court. While a motion for such action on the part of the court is entirely appropriate, neither motion nor notice to an adverse party is essential. The court has full power to take such action on its own motion and without any application on the part of anyone."

The proceeding in the district court cannot be distorted into an independent action on the contract, by McDonald against Mrs. Martin, or for relief from it on any ground recognized in this jurisdiction. The allegations of the petition are incapable of being construed to be a complaint having such purpose. It is given the same title as the divorce suit. No ground is set up, cognizable in equity, for relief of defendant, plaintiff here, from the terms of the contract. The document by means of which he sought to invoke the jurisdiction of the court is entitled "Petition for Modification of Decree." There is no allegation therein of fraud, mistake or undue influence, whereby he was procured to enter into the contract. Furthermore, when an action is commenced there are fees to be paid to the clerk of the court in which the complaint is filed and it does not appear that fees accompanied this petition. The prayer to the petition is as follows:

"WHEREFORE, defendant prays:

"(1) That an order be issued requiring plaintiff to appear and show cause, at a time to be therein stated, why the decree heretofore entered in the above entitled action on the 15th day of December, 1924, should not be modified, and plaintiff required to answer this petition.

"(2) That the court modify its decree of December 15, 1924, to provide that defendant be required to make no further payment to plaintiff of any sum whatsoever.

"(3) For such other and further relief as may be meet and just."

The suggestion in the opinion that the proceeding in the lower court to modify the decree of divorce may be considered an independent action is apparently the first time plaintiff here, or his attorneys, ever heard of such a theory.

Even if, by any stretch of the imagination, the proceeding in the district court could be construed to be an original action to modify or otherwise procure relief from the contract between the parties litigant, there is no provision of law investing the trial judge with jurisdiction to relieve the plaintiff in such action from the payment of sums due from him to the defendant pendente lite, unless it be by injunction, and I am agreed with the foregoing opinion that the order which the trial judge vacated is not an injunction.

In the opinion it is said:

"If it be concluded by the lower court that there is no provision made for alimony in the decree or contract and that this action must be maintained, if at all, as an independent action, that being a matter for determination by the trial court and is within its jurisdiction."

That is the matter which the trial court decided. Evidently it examined the judgment roll and found no provision in the decree requiring plaintiff here to make payments of money to his former wife; that whatever money was payable to her by him was due, or to become due, on contract, and payments thereof were not enforceable under the terms of the decree; that the court was without jurisdiction to make the order of April 30, 1934, wherein it was attempted to authorize plaintiff herein to withhold payments to his former wife according to the terms of their contract, and this discovery resulted in the order of May 1, vacating and dissolving the order of April 30, 1934.

The order of the district Judge, of May 1, dissolving his former order is correct, and plaintiff's complaint in the proceeding before us does not state facts sufficient to constitute a cause of action and should be dismissed.