NORMAN v. NORMAN

NORMAN v. NORMAN
1922 OK 200
207 P. 970
86 Okla. 201
Case Number: 12719
Decided: 06/06/1922
Supreme Court of Oklahoma

NORMAN
v.
NORMAN.

Syllabus

¶0 1. Appeal and Error--Dismissal--Response to Motion--Requisites.
When a motion by defendant in error has been filed in this court to dismiss an appeal because the plaintiff in error has failed to comply with the orders of this court, and this court has granted plaintiff in error time in which to respond to such motion, it is the duty of such respondent to set up in his response a concise statement of any existing facts that would constitute a legal defense to such motion to dismiss.
2. Same--Insufficiency of Response.
Where the plaintiff in error files a response and fails to state facts which show that he has complied with the order of the court complained of, or fails to state facts which constitute a legal defense for his failure to comply with the order complained of, this court may sustain such motion and dismiss the appeal.
3. Same--Judgment on Supersedeas Bond.
When on application of plaintiff in error to this court, he is granted a supersedeas and one of the conditions of such supersedeas bond is that the plaintiff in error will do and perform the things which he may be ordered to do and perform by this court, and such plaintiff in error fails to pay certain money to the defendant in error pending the appeal and, by reason of such failure to pay said sums of money, the appeal is dismissed, it is the duty of this court to render judgment against the sureties on such supersedeas bond.

Error from Superior Court, Creek County; Gaylord R. Wilcox, Judge.

Application by Maude E. Norman for citation in contempt proceeding against Robert S. Norman for failure to comply with the former orders of the trial court in the payment of money for the support of their minor children. Citation issued. Verdict against Robert S. Norman finding him guilty of indirect contempt. Judgment on the verdict committing him to the county jail of Creek County. Robert S. Norman appeals. Appeal dismissed for failure to comply with the orders of this court, and judgment affirmed.

Preston S. Davis, for plaintiff in error.
Albertson & Blakemore, for defendant in error.

MILLER, J.

¶1 The question now before this court is: Should the motion to dismiss the appeal be sustained or denied?

¶2 If the response is sufficient to raise an issue of fact, the motion should not be sustained until the issue of fact is determined. We do not think the response raises any issue, either of law or fact. The motion of the defendant in error to dismiss the appeal is supported by her duly verified affidavit that the order of the court made on January 10, 1922, has not been complied with by the plaintiff in error. The plaintiff in error evades this issue by saying: "He has violated no order of this court that he is aware of."

¶3 If the plaintiff in error had complied with the order of the court made on January 10, 1922, it was his duty to so state in his response and give all necessary detailed information, that this court might be fully advised. He has neither done this nor filed any motion or application to modify the order, or set up any reason why it has not been complied with. This response is evasive, it does not meet the issues, and is nothing less than trifling with the court. The response asks that, if the motion is to be pressed further, it be set down at some reasonable date in the future to give counsel for plaintiff in error sufficient time to appear upon reasonable notice. When plaintiff in error was given opportunity to respond, he is charged with notice that the motion is before this court for its determination. The opportunity given him to respond is that he may set up in concrete form the facts, if any he has, upon which he may rely to defeat the motion. He would not have been called upon to respond if there had been nothing pending before this court. It was his duty, in filing his response, to meet the issue squarely. If he had paid the $ 25 per month provided for in the order of this court made on January 10, 1922, he could have so stated in his response.

¶4 When a divorce is granted and in the same decree the husband is required to pay to his wife certain sums of money, monthly, for the support of his minor children, and he is convicted of contempt of court and sentenced to jail for failure to comply with such order, and he appeals from such conviction and sentence to this court, the Supreme Court, under its appellate jurisdiction and as an incident to such jurisdiction, has authority to make an order requiring such appellant to pay a specified sum monthly for the support of his minor children, pending a determination of such appeal, and also the necessary attorney fees for the attorneys employed by his former wife in defending against such appeal. See Spradling v. Spradling, 74 Okla. 276, 181 P. 148. It is also within the inherent power of this court to enforce its orders, and in doing this it may dismiss the appeal. In Spradling v. Spradling, supra, paragraphs 3 and 4 of the syllabus read as follows:

"3. Where an appeal is taken without supersedeas, from a judgment awarding alimony and a sum for the maintenance and education of minor children, and plaintiff in error refuses to comply with the order of this court to pay to the clerk, for the benefit of an indigent defendant in error, certain counsel fees, etc., and, having disposed of his property, goes and remains without the confines of the state and beyond process of the court, the appeal may be dismissed.
"4. The dismissal of an appeal under such circumstances is not a denial of any constitutional right of the plaintiff in error."

¶5 In 19 Corpus Juris, at page 323, paragraph 746, the rule is stated as follows:

"There is authority to the effect that where, pending an appeal by the husband, the wife is awarded counsel fees for the purpose of resisting the appeal, if the husband fails to pay such fees, the court may dismiss the appeal."

¶6 This rule is supported in: Hall v. Hall, 77 Miss. 741, 27 So. 636; Tuttle v. Tuttle, 21 N.D. 503, 131 N.W. 460; Brown v. Brown, 22 Wyo. 316, 140 P. 829.

¶7 Under the order made by this court, plaintiff in error was to pay $ 25 per month for the support of said minor children, beginning September 1, 1921. Ten monthly payment are now due, also $ 100 as attorney fees for defendant in error's attorneys, and the plaintiff in error has wholly ignored the order. When called upon for a response, he evades the issue. His appeal is not entitled to further consideration, and it should be dismissed.

¶8 A copy of the supersedeas bond, which supersedeas was granted by this court, appears as a part of the case- made and this bond provides, in part, as follows:

"The conditions of this recognizance are such, that if the above bound, Robert S. Norman, will appear and perform the judgment of said superior court of Creek county, state of Oklahoma, and the judgment of the Supreme Court of said state, should judgment be rendered against him, and will pay the judgment against him in the lower court, should such judgment be affirmed by the Supreme Court of said state, and will do and perform all things which he may be ordered to do by the Supreme Court of the state of Oklahoma, or by the said superior court of Creek county, Okla., then this recognizance shall be null and void, otherwise it shall be and remain in full force, effect and virtue.

"Robert S. Norman, Principal,
"Ray Wood,
"Chas. J. Wolfe, Sureties."

¶9 The conditions of this bond have been broken by the plaintiff in error failing to do and perform the things he was ordered to do by this court, and the defendant in error is entitled to judgment against the sureties on said supersedeas bond. As the order made by this court on January 10, 1922, requiring the plaintiff in error to pay $ 25 per month, has not been complied with, that part of said order is hereby vacated and set aside and the order of the trial court requiring him to pay $ 30 per month is reinstated and continued in full force and effect from the date of the order, in all respects as though the order of January 10, 1922, had never been made by this court. That part of the order requiring the payment of $ 100 as attorney fees is not vacated, but remains in full force and effect. As the amount now due from the plaintiff in error under the order of the trial court requiring him to pay $ 30 per month and the order of this court requiring him to pay $ 100 as attorney fees exceeds the amount of the supersedeas bond, the defendant in error is entitled to a judgment against the sureties on said bond in the full amount thereof.

¶10 Therefore, it is by this court considered, ordered, adjudged, and decreed that the defendant in error, Maude E. Norman, do have and recover of and against Ray Wood and Charles J. Wolfe the aforesaid sum of $ 500, together with interest thereon at the rate of six per cent. per annum from this date, and that this judgment be spread of record in the office of the court clerk of Creek county, Okla., and that execution be issued thereon against the judgment debtors herein. That when this judgment is collected the proceeds shall be applied as follows: First, to the payment of the $ 100 as attorney fees, granted by this court, for the use and benefit of the attorneys for the defendant in error in defending this appeal. Second, to liquidating the monthly payments of $ 30 per month now due and in arrears, and to be applied to such months as may be directed by the trial court or judge thereof.

¶11 The appeal is hereby dismissed, and the judgment of the trial court is affirmed.