(DOWNLOAD) "State Ex Rel. Floch v. District Court Et Al." by Supreme Court of Montana # Book PDF Kindle ePub Free
eBook details
- Title: State Ex Rel. Floch v. District Court Et Al.
- Author : Supreme Court of Montana
- Release Date : January 23, 1938
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 68 KB
Description
Writ of Supervisory Control ? Divorce ? Failure to Pay Alimony ? Contempt ? Power of Trial Court to Modify Decree ? Interest of Minor Children Paramount Consideration ? What Constitutes Good Defense to Charge of Contempt ? Refusal of Court to Hear Petition of Contemnor for Modification ? When Error ? Failure of Respondents to Present Evidence in Record ? Presumption. Divorce ? Modification of Decree ? Power of Court ? Interest of Minor Children Paramount Consideration. 1. Under section 5770, Revised Codes, authorizing the district court in divorce proceedings, either before or after judgment, to give such direction for the custody, care and education of the children of the marriage as may be necessary or proper, and may at any time vacate or modify the same, the interest of the children is the paramount consideration of the court. Same ? Agreement Between Parents as to Custody of Children ? Court may Disregard Agreement. 2. Neither the fact that a divorce decree makes no mention of the children of the marriage, nor the fact that their care and custody had previously been provided for by the parties in a private agreement is binding upon the court or the minors, though binding upon the parties; hence where the parties had entered into an agreement under which the father should have custody of the minor son and the mother of the minor daughter, each being released from any payments relative to the care and education of the minor in charge of the other, the court upon a proper showing could thereafter award the custody of both children to the mother, the father to pay a certain sum per month to the mother for the support of both children. - Page 186 Same ? Failure to Pay Alimony ? What Constitutes Good Defense. 3. Involuntary and non-contumacious inability to obey an order of court in a divorce proceeding that the husband pay the wife a given amount per month for the support of their minor children is a good defense to a charge of contempt for failure to pay. Same ? Husband Petitioning for Modification of Decree Before Charge of Contempt Made ? Refusal to Hear Petition Held Error. 4. Where the husband, before being charged with contempt for failure to make certain monthly payments for the support of minor children in a divorce proceeding, petitioned for a modification of the order on the ground that he was unable to comply with it, but the court declined to hear the petition before he had purged himself of the alleged contempt, held, on application for writ of supervisory control, that the court committed error; that the petition should have been heard before the contempt proceedings or prior to final disposition thereof, since, if the contemnor could successfully maintain his petition for modification he might have been able to make a good defense against the contempt charge as to past due payments, and show that he was entitled to the benefit of a modification as to those to be made in the future. Same ? Contempt ? Writ of Supervisory Control ? Absence of Evidence from Record ? Presumption. 5. In the absence of the evidence heard in a contempt proceeding from the record presented in the supreme court on petition for writ of supervisory control to review the judgment finding him guilty, the presumption obtains that the trial court acted properly. Same ? Supervisory Control ? Effect of Motion to Quash. 6. Where in a proceeding of the above nature in which the supreme court orders the lower court to certify all the records, including the evidence, to it, and the relator makes the assertion that there was no evidence showing that he was guilty of contempt, the motion to quash ? in effect a demurrer ? admits such assertion, and failure to produce the evidence warrants the presumption that there was no evidence to support the finding of guilt.
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