Halmu v. Halmu , 247 Wis. 124 ( 1945 )

While I agree that the judgment must be affirmed, I do not consider that the trial court's jurisdiction to punish for contempt for husband's failure to pay support money which the court had ordered to be paid to the mother for the support of minor children, terminated upon their reaching their majority. In Lowry v. Lowry,189 Okla. 650, 118 P.2d 1015, it was held that the court lost jurisdiction to enforce by contempt proceedings payment of support money after the minor became of age, on the theory that such proceedings were, (1) for the benefit of a private party, or (2) to coerce payment for a private party. This same objective existed before the minor became of age. The use of contempt proceedings to enforce the payment while the child was a minor was then likewise for the benefit of a private party who was furnishing the support. In my opinion contempt proceedings are not for the benefit of a private party. The contempt consists of failure or refusal of the party to obey an order of the court, and the contempt continues so long as the party fails or refuses to comply with the order of the court. As the court said in In re Milburn (1883), 59 Wis. 24,34, 17 N.W. 965:

"The mere fact that the contempt was in proceedings supplementary to a judgment founded upon a contract, did not make it any the less a contempt, nor prevent its being punished as such."

And in In re Meggett (1900), 105 Wis. 291, 298,81 N.W. 419, it was said:

"But whether a debt exists or not is quite immaterial. The imprisonment is not for the debt, but for disobedience of an order to pay money, made, not because he owed it, but because, after the court had sequestered it after it was property incustodia legis, he had wrongfully diverted it from the court's control. . . . This is not an imprisonment for debt. It is the exercise of the contempt power inherent in courts of equity to re-establish a status quo wrongfully disturbed. The punishment inflicted, even in civil contempts, where indemnity to another party is the dominant purpose, nevertheless rests upon the power of the court to vindicate its own authority, and to punish for defiance thereof, but to adjust that punishment so as to protect or enforce private rights."

The failure or refusal of the defendant to comply with the order of the court constitutes the grounds on which he is brought before the court, and the only way he can purge this contempt is by complying with the order. Until he has complied with the order or has been released by the court from the duty to comply with it, he is flaunting the authority of the court to enforce its orders and judgments. The fact that further payments are not required when the minor becomes age does not change the refusal on the part of the defendant to comply with a lawful order still in existence.

I am authorized to state that Mr. Justice FRITZ concurs in the foregoing.