Opinion
March 7, 1955 —
April 5, 1955.
APPEAL from an order of the county court of Sauk county: HENRY J. BOHN, Judge. Reversed.
For the appellant there were briefs and oral argument by Vaughn S. Conway of Baraboo.
For the respondent there was a brief and oral argument by John U. Dithmar, divorce counsel of Sauk county.
A decree granting plaintiff a divorce and custody of the five minor children of the parties was entered on March 25, 1953. Among other things, defendant was required to pay $35 per week for the support of the minor children. From an affidavit of the plaintiff it appears that on July 20, 1953, defendant was "in arrears two weeks." Her affidavit accompanies an order dated July 22, 1953, requiring defendant to show cause on July 29, 1953, why he should not be punished for contempt.
Proceedings were had on the return day at which time plaintiff and defendant appeared personally, and plaintiff also appeared by attorney.
Plaintiff testified at that hearing that defendant was then about two weeks delinquent in his support-money payments; that she had made application to the Sauk county welfare department for mother's pension. She asked the court that defendant be required to pay the support money to the welfare department; that in turn they turn it over to her as mother's pension. The director of the welfare department testified that he and the plaintiff's attorney had discussed the matter, and that it had been agreed that payment should be made to the welfare department in accordance with the request of plaintiff. It does not appear that anything further was done, or that the hearing was continued or adjourned. On July 31, 1953, an order was entered modifying the divorce judgment so as to require payment by the defendant to the welfare department in accordance with the foregoing.
On March 24, 1954, an order was entered requiring defendant to show cause on March 29, 1954, why he should not be punished for contempt for his failure to comply with the judgment. The order is accompanied by the affidavit of the clerk of the court which recites that upon the date of the affidavit the sum of $1,832 had become payable under the terms of the judgment; that defendant had paid only $516, the last payment having been made on August 1, 1953. The record does not disclose that any proceedings were had on March 29, 1954.
There appears an order dated May 11, 1954, signed by the county judge, reciting that the defendant "is in contempt of court under an order issued out of this court" and requiring the sheriff to take defendant into custody and bring him into court forthwith. On the same day, May 11, 1954, there appeared in court the divorce counsel, Vaughn S. Conway for the defendant, and the defendant in person. The following proceedings were had:
"Mr. Dithmar made an opening statement to the court.
"Mr. Conway asked for an adjournment on the grounds that he had not had a chance to consult with his client.
"The Court: The court has observed that you come into this court with a bad breath. You drink too much. Am I right about that?
"Defendant: I take a drink, yes.
"The Court: The court also observes you going into the tavern over here pretty often, am I right about that?
"Defendant: I go in there, yes, sir.
"The Court: The court also observes that you, have been in there with another woman than your wife.
"Defendant: Sir, I am not married. I am divorced.
"The Court: You haven't paid according to the orders of the court. This thing has lingered along until the court is entirely out of patience. It is the judgment of the court that you are in contempt. You are committed to the county jail for the period of six months for contempt of this court. That's all."
On May 12, 1954, the county judge signed a paper reciting as follows:
"In open court May 11, 1954.
"present and presiding, Hon. HENRY J. BOHN, county judge.
"Appearances: John U. Dithmar, divorce counsel for Sauk county. Vaughn S. Conway appeared on behalf of the defendant. Defendant in court in person. "The Court: It is the judgment of the court that you are in contempt. You are committed to the county jail for the period of six months for contempt of this court. That's all. Dated May 12, 1954."Apparently the order was intended as a formal declaration of the verbal order made by the judge on May 11th.
We have set forth above a complete and somewhat detailed statement of everything which the record discloses has happened in the trial court since the entry of the divorce decree and prior to the date of the last-referred-to order, May 12, 1954. The defendant appeals from this order. Attached to the notice of appeal is an affidavit of the defendant which recites certain facts which do not appear of record.
On May 20, 1954, there was filed with the clerk of court an affidavit of the divorce counsel which also sets forth certain facts which do not appear of record. On May 28, 1954, the county judge made an order which purports to make the latter affidavit a part of the record.
The affidavits of defendant's counsel and the divorce counsel, made and filed after the entry of the order appealed from and not made a part of the bill of exceptions, did not become a part of the record in the case. Consequently, we may not consider them. Finney v. Guy, 111 Wis. 296, 87 N.W. 255; Shortle v. Sheill, 172 Wis. 53, 178 N.W. 304; 3 Am.Jur., Appeal and Error, p. 224, sec. 592.
It is necessary for us to consider only one of defendant's contentions: That he was denied the opportunity to show that his failure to pay was not attributable to his fault. We have quoted in full the record and the proceedings had on May 11, 1954, to demonstrate that defendant was given no such opportunity. A refusal to pay in accordance with the provisions of a divorce decree is contumacious only when it is brought about wilfully and with intent to avoid payment. Imprisonment should not be ordered when it is made to appear that the default is the result of inability to pay. Staples v. Staples, 87 Wis. 592, 58 N.W. 1036; Razall v. Razall, 242 Wis. 121, 7 N.W.2d 417. The record is in such state that this essential finding could not have been made. It was not made.
If there were any doubt that it was not intended that defendant be given an opportunity to show that his default resulted from his inability to pay it is removed by the fact that in the bench warrant prepared even before he was taken into custody it is recited that defendant "is in contempt of court." The order was erroneously made.
It may very well be that defendant has been guilty of wilfully refusing to comply with the court's order. In fact, there is enough in the record to suggest that he may have been. The suggestion does not suffice, however, to permit the court to find him guilty and order his imprisonment without first granting to him the right to explain, if he can, that his failure to pay has been caused by his inability to do so.
By the Court. — Order reversed.