When this case was first heard in Department, it was assigned to the late Judge Fullerton for opinion, and he prepared that which is hereinafter quoted, which failed of majority support. In my judgment, the views expressed by Judge Fullerton are sound, just and equitable, and should prevail for the reasons stated by him.
And in addition thereto, I may say that the allowance to the respondent was specifically made for the support of herself and the minor daughter, and was strictly limited to the period which would expire one year after the daughter reached the age of twenty-one years. Respondent and her daughter have had support, perhaps not wholly or sufficiently, from the appellant; but still they have had the means of livelihood. Now that the period to which they were entitled to support by the decree has fully expired, the remaining unpaid portion of the support money, if paid to respondent, will be capital in her hands, or if not that, at the most, it will be a capital fund from which to repay what she may have borrowed for her support in the period referred to. In other words, the money can only be used now as accumulated capital or as a fund from which to pay indebtedness, and therefore it is on a par with ordinary contracts involving the payment of money; and the extraordinary power of a court of *Page 622 equity ought not under these circumstances to be exercised to force its payment by contempt proceedings.
I adopt as my views the opinion prepared by Judge Fullerton, which is as follows:
"This appeal is from an order adjudging the appellant to be in contempt of court. The record discloses that, in January, 1924, in an action for a divorce pending between the appellant and the respondent, a decree of divorce was entered in favor of the respondent. By the terms of the decree, the appellant was ordered to pay to the respondent, for the support of herself and their sixteen year old daughter, one hundred dollars per month until the daughter should attain the age of twenty-one years, and to pay to the respondent for one year thereafter fifty dollars per month. At the time of the decree, the appellant was employed at a salary of two hundred fifty dollars a month. Soon thereafter he lost his employment and was practically without income for about six months, during which time he paid no alimony. In June, 1924, he was cited for contempt. On the hearing he was purged of the contempt for past defaults and ordered to pay seventy-five dollars per month for the future, which the court found was all he was able to pay. From that time on until the termination of the decree the appellant substantially complied with this order, paying seventy-five dollars per month until the daughter became of age and fifty dollars per month until one year thereafter, except for such times as he was excused by the court.
"On January 5, 1931, the appellant was cited for contempt for failing to pay the difference between the sums accrued under the original decree of January, 1924, and the amount of the actual payments, the deficiency amounting to $1,839. Upon a hearing, he was adjudged to be in contempt, but it was ordered that he might purge the contempt by paying the respondent fifty dollars per month until $1,839 should be paid, in default of which he should be committed to jail.
"The appellant has no property except personal effects. He is in debt for doctor's bills, grocery bills and other family expenses, and has no means of paying *Page 623 them and maintaining his family save from his salary of two hundred fifty dollars per month. The respondent has employment that furnishes her bed and board and forty dollars per month. The daughter of the parties was self-supporting after 1927, and married in 1929.
"The appellant concedes that, inasmuch as the divorce decree was never modified, he is indebted to the respondent for the difference between the total of the sums required to be paid by him under the decree and the total of the sums he has actually paid; but he contends that, under the circumstances shown, the court had no power to punish him for contempt for failure to pay the deficiency, or if such power exists, it is within the discretion of the court whether or not it should be exercised to coerce payment, and that it was an abuse of discretion so to exercise it. With this latter contention we are constrained to agree.
"An application to punish for contempt is addressed to the discretion of the court. Surry v. Surry, 78 Wn. 370,139 P. 44; 13 C.J., Tit. Contempt, Sec. 74, p. 54, and cases cited in note 42. In the case before us, the appellant has been repeatedly cited to show cause why he should not be punished for contempt for delinquencies in making payments as required by the decree, and each time his past contempts, if they were contempts, were purged because of his limited financial ability, and each time the court specified what sums he should pay thereafter in order not to be in contempt. The appellant, almost without exception, complied with the directions of the court. Presumably, the court each time ascertained the necessities of the respondent and the daughter and the appellant's ability to pay, and so gauged the size of the ensuing monthly payments that ought to be exacted. The period during which the decree and the subsequent orders of the court required the appellant to provide for the respondent's maintenance has expired, and she is now able to support herself and is doing so. The appellant is in straitened financial circumstances, with another family of three besides himself to provide for, and his ability to pay seems more likely to diminish than to improve. The appellant has not been guilty of actual contumacy or *Page 624 contemptuous disobedience of the decree or orders of the court. In view of all the circumstances, we consider that payment of the unpaid accumulations under the divorce decree ought not to be coerced by contempt proceedings, but that the respondent should be relegated to such other processes as may be available to her, as in the case of judgments generally.
"The order appealed from is reversed, with a direction to dismiss the application without costs. No costs will be allowed the appellant in this court."
For all of the reasons thus expressed, I dissent.