holding that Const, art. 1, § 17 did not preclude a trial court using its contempt powers and imprisonment to enforce compliance with a divorce decree
How later courts described this case
- holding that Const, art. 1, § 17 did not preclude a trial court using its contempt powers and imprisonment to enforce compliance with a divorce decree
Written by the judges who cited it.
The opinion
Mallery, J.
(dissenting) — The trial court has no authority to imprison a divorced spouse for failure to pay a debt ■owed to a third party for two reasons.
*468 (1) The trial court had no authority to order a spouse to pay the debt. In Palmer v. Palmer, 42 Wn. (2d) 715, 258 P. (2d) 475 , this court said:
“A divorce action is a statutory proceeding, and the court has no jurisdiction that cannot be inferred from a broad interpretation of the statutes. [Citing case.]”
The statute, ROW 26.08.110 [c/. Rem. Supp. 1949, § 997-11] confers this power upon the court:
“. . . judgment shall be entered . . . making such disposition of the property of the parties, either community or separate, as shall appear just and equitable, having regard to the respective merits of the parties, to-the condition in which they will be left by such divorce or annulment, to the party through whom the property was. acquired, and to the burdens imposed upon it for the benefit of the children, ...”
The power to order a spouse to pay a debt to a third party cannot be inferred from this language of the statute, and this court cannot confer authority upon itself by its own decisions. The statutory language quoted is not authority to convert a divorce action into a proceeding for the liquidation of third-party debts.
We so held in Arneson v. Arneson, 38 Wn. (2d) 99, 227 P. (2d) 1016 , in which we said:
“Divorce, probate, bankruptcy, receiverships, and assignments for the benefit of creditors are statutory proceedings, and the jurisdiction and authority of the courts are prescribed by the applicable legislative enactment. In them the-court does not have any power that can not be inferred from a broad interpretation of the act in question. The powers of the court in probate and receiverships can not be imported into the divorce act. Whether or not the court exceeded its jurisdiction in the case at bar, must be determined from the language of the divorce act of 1949.
“Nowhere in the act is the court empowered to exercise the prerogatives peculiar to other statutory proceedings. One ready test of a proper limitation on the jurisdiction of the court, in a given case, can be applied by determining-who are the necessary and/or proper parties to the action.
“The spouses are made parties to a divorce action by due process, and the state is made one by statute. The children are not parties, but, as a subject of the action, they have *469 been made the chief concern of both the legislature and the courts. Other persons can not be made parties to the action by any statutory form of notice, nor can they intervene therein. It would appear elementary, then, that there is no due process of law in a divorce action as to the rights of creditors of the spouses. The judgment can neither conclusively determine their rights nor be made available on their behalf as a basis for any of the provisional remedies.
“Since the divorce act nowhere provides for it, the court has no power to compel a liquidation for the benefit of creditors as an incident to a divorce decree. Nor can any of the statutory proceedings, having that as its purpose, be consolidated with a divorce action for trial. Nothing can be found in the divorce act authorizing the court to deprive the spouses of their rights to prefer creditors, claim exemptions and/or homesteads, compromise claims, take bankruptcy, invoke statutes of limitation, make contracts, and enjoy their property rights. Their several interests in the property are, of course, determined, as between themselves, by the decree, and are subject to the burdens imposed upon them therein for purposes within the scope of the divorce act. As to the common-law rules of jurisdiction, we know of none which empowers the court to encroach upon civil rights simply because persons are parties to a divorce action.”
The ex-wife asks the court to imprison the husband if he does not pay an unliquidated claim to a third-party creditor, who has no judgment. He was not and could not be a party to the divorce action and has no property right in the decree. His own action for debt, if he ever brings it, may be barred by the statute of limitations, and, in any event, will be subject to all valid defenses.
The divorce court cannot give the creditor a judgment nor make the provisional remedies available to him. Even between the spouses, there can be no ruling upon their indebtedness for any purpose other than as an incident to the disposition of their property.
The court’s order to pay the debt, an issue that was not and could not be before the court in a divorce action, was void, and, hence, cannot under any circumstances sustain a contempt proceeding.
*470 (2) The constitutional objection to the contempt proceeding is valid. Even if we assume there is a debt, it: is owed to a party not privy to the action, and, hence, it cannot be for alimony. There is no escape from the application of Art. I, § 17, of the state constitution, because'no definition of debt, however artful, can invoke the statutory provision for alimony in this case.
, I dissent.
Hill, C. J., and Ott, J., concur with Mallery, J.;
August 18, 1958. Petition for rehearing denied.