WOLFE, Justice.
The appellant, Clive K. Calder, was adjudged to be the father of a bastard child in two different cases by the court below. The two cases were combined for the purpose of trial and they are combined on this appeal since they involve identical questions. The cases were tried before the court sitting without a jury. After having found the appellant to be the father of the two children, the court, on June 18, 1949, examined the appellant for the purpose of determining what yearly amount should be paid by him for the support, maintenance, and education of the [360]*360children. Section 14-2-7, Utah Code Annotated 1943, establishes the maximum yearly amount of $200 for the first year after the birth of the child and $150 for the next succeeding seventeen years. At the conclusion of the hearing on June 18th the court entered an order
“that the defendant pay $30.00 per month to the office of the County Clerk, $25.00 of which is to apply on the said support of the two minors, and $5.00 of which is to apply on the back support until the back support has been caught up in the amount of $467.00, after which time payments drop to $12.50 per month in each case as provided by law; payments to begin on July 5, 1949, in the amount of $15.00 and like payments to be made on the 20th and 5th of each month thereafter. Defendant to be placed on bond for faithful performance and committed to the County Jail until such time as bond is furnished.”
The appellant was thereupon committed to the county jail, but later that same day the then presiding judge of the Third Judicial District Court granted a stay of commitment until June 20, 1949, at which time the case in its entirely was transferred to the presiding judge. The court signed findings of fact, conclusions of law and the judgment on July 6th. One finding of fact recited that the defendant had wilfully failed and refused to obtain a bond. Exceptions to the findings were filed and argued the same day. On June 27th and July 9th motions were filed to set aside the order of commitment and allow the appellant an opportunity to present evidence regarding his inability to obtain a bond, but the court refused to entertain the motions.
The appellant contends that the lower court erred in making findings of fact and conclusions of law that he was able to obtain a bond to secure payment of the amounts adjudged against him; that he had wilfully failed and refused to obtain a bond; and that consequently he was in contempt of court and should be incarcerated until said bond was furnished. The appellant also assigns as error the refusal of the trial court to hear evidence as to the appellant’s inability to obtain a bond.
[361]*361At the hearing held June 18th to determine what amount should be paid by the appellant for the support, maintenance, and education of the children, the appellant and his brother, Harold Calder, testified as to the appellant’s income and expenses. The State offered no evidence on this question as perhaps it could not; the appellant’s evidence is uncontradicted. The appellant testified that he was employed by his brother, Harold, in the latter’s automobile business, receiving therefrom $300 per month; that he had no other income; that there was a franchise for a Willys automobile agency in his name, but that his brother, Harold, owned the franchise and that he (the appellant) had no ownership in the franchise whatever; that he owned an equity in a house he was residing in and that he owed a mortgage debt on this house in the sum of $3,300 on which he was making monthly payments of $50; that within the last sixty days he had endeavored unsuccessfuly to borrow money on the security of his equity in the house; that he was married and had three children; and that his wife had no income of her own. He offered in evidence a statement of his fixed monthly expenses, the total of which exceeded $300.
Harold Calder corroborated the appellant’s testimony that he had no income other than the salary he received from him; that the appellant owned no property other than an equity in the house where he and his family were living; and that the appellant did not own any interest in the Willys franchise which was in his name.
Section 14-2-8, U. C. A. 1943, provides:
“In case the defendant shall refuse or neglect to give such security as shall he ordered by the court, if able so to do, he shall be committed to the jail of the county; there to remain until he shall comply with such order, or until otherwise discharged * * * for insolvency or inability to give bond.” (Italics added.)
In State v. Bartholomew, 85 Utah 94, 38 P. 2d 753, we held that under the above statute a person cannot be found [362]*362in contempt if he is not able to comply with the order of the court requiring the posting of a bond.
From a reading of the record, it is evident that at the hearing held June 18th, the appellant was of the opinion that he could not furnish a bond, but that the court thought the appellant was capable of securing a bond and that if he were incarcerated he would furnish it within a very short time. The appellant had had two illegitimate children by the same woman. Under the circumstances the determination of the trial judge to bring to the appellant a realization of his responsibilities for the children he helped bring into the world is commendable. But under the wording of Section 14-2-8, U. C. A. 1943, and the Bartholomew case, supra, a defendant may not be committed to jail unless he is able to furnish the security ordered by the court and refuses or neglects to do so. Nor does the statute contemplate incarceration for the purpose of coercing relatives or friends to come forth with security, if indeed such practice absent the statute were to be condoned. The bond which the court ordered the appellant to give is a bond for the due and faithful payment of the amounts ordered to be paid by him for the support of the children until they reach the age of eighteen years, a period of prolonged contingent liability for any surety. It is a matter of common knowledge that a bond of this nature is difficult to obtain. Practically, it would seem that unless the court is satisfied that the defendant owns sufficient property which could be given to and would be accepted by a surety as indemnity, the court would ordinarily have to conclude that the defendant was unable to furnish a bond. We do not mean however to exclude the possibility that a close relative such as a father or a brother might be so actuated by reason of a desire to see the offending defendant secure the payment of the basic obligation to support his offspring that he would be willing, absent any coercing by the court, to go on the bond of the son or brother as the case might be. In the instant case the appellant offered [363]*363to prove that he had contacted three professional bondsmen, three corporate bonding company representatives, and his brother, but in all instances they refused to become sureties on a bond to guarantee payments for the support of the children. Such would be the expected result of even honest and bona fide attempts to obtain a bond when a defendant cannot furnish indemnity. Thus in determining whether a defendant is able to obtain a bond the inquiry would perhaps best be directed toward determining what property the defendant possesses which could be utilized for indemnity purposes rather than toward the efforts he had made in a quest almost doomed to failure unless indemnity could be furnished.
Free access — add to your briefcase to read the full text and ask questions with AI
WOLFE, Justice.
The appellant, Clive K. Calder, was adjudged to be the father of a bastard child in two different cases by the court below. The two cases were combined for the purpose of trial and they are combined on this appeal since they involve identical questions. The cases were tried before the court sitting without a jury. After having found the appellant to be the father of the two children, the court, on June 18, 1949, examined the appellant for the purpose of determining what yearly amount should be paid by him for the support, maintenance, and education of the [360]*360children. Section 14-2-7, Utah Code Annotated 1943, establishes the maximum yearly amount of $200 for the first year after the birth of the child and $150 for the next succeeding seventeen years. At the conclusion of the hearing on June 18th the court entered an order
“that the defendant pay $30.00 per month to the office of the County Clerk, $25.00 of which is to apply on the said support of the two minors, and $5.00 of which is to apply on the back support until the back support has been caught up in the amount of $467.00, after which time payments drop to $12.50 per month in each case as provided by law; payments to begin on July 5, 1949, in the amount of $15.00 and like payments to be made on the 20th and 5th of each month thereafter. Defendant to be placed on bond for faithful performance and committed to the County Jail until such time as bond is furnished.”
The appellant was thereupon committed to the county jail, but later that same day the then presiding judge of the Third Judicial District Court granted a stay of commitment until June 20, 1949, at which time the case in its entirely was transferred to the presiding judge. The court signed findings of fact, conclusions of law and the judgment on July 6th. One finding of fact recited that the defendant had wilfully failed and refused to obtain a bond. Exceptions to the findings were filed and argued the same day. On June 27th and July 9th motions were filed to set aside the order of commitment and allow the appellant an opportunity to present evidence regarding his inability to obtain a bond, but the court refused to entertain the motions.
The appellant contends that the lower court erred in making findings of fact and conclusions of law that he was able to obtain a bond to secure payment of the amounts adjudged against him; that he had wilfully failed and refused to obtain a bond; and that consequently he was in contempt of court and should be incarcerated until said bond was furnished. The appellant also assigns as error the refusal of the trial court to hear evidence as to the appellant’s inability to obtain a bond.
[361]*361At the hearing held June 18th to determine what amount should be paid by the appellant for the support, maintenance, and education of the children, the appellant and his brother, Harold Calder, testified as to the appellant’s income and expenses. The State offered no evidence on this question as perhaps it could not; the appellant’s evidence is uncontradicted. The appellant testified that he was employed by his brother, Harold, in the latter’s automobile business, receiving therefrom $300 per month; that he had no other income; that there was a franchise for a Willys automobile agency in his name, but that his brother, Harold, owned the franchise and that he (the appellant) had no ownership in the franchise whatever; that he owned an equity in a house he was residing in and that he owed a mortgage debt on this house in the sum of $3,300 on which he was making monthly payments of $50; that within the last sixty days he had endeavored unsuccessfuly to borrow money on the security of his equity in the house; that he was married and had three children; and that his wife had no income of her own. He offered in evidence a statement of his fixed monthly expenses, the total of which exceeded $300.
Harold Calder corroborated the appellant’s testimony that he had no income other than the salary he received from him; that the appellant owned no property other than an equity in the house where he and his family were living; and that the appellant did not own any interest in the Willys franchise which was in his name.
Section 14-2-8, U. C. A. 1943, provides:
“In case the defendant shall refuse or neglect to give such security as shall he ordered by the court, if able so to do, he shall be committed to the jail of the county; there to remain until he shall comply with such order, or until otherwise discharged * * * for insolvency or inability to give bond.” (Italics added.)
In State v. Bartholomew, 85 Utah 94, 38 P. 2d 753, we held that under the above statute a person cannot be found [362]*362in contempt if he is not able to comply with the order of the court requiring the posting of a bond.
From a reading of the record, it is evident that at the hearing held June 18th, the appellant was of the opinion that he could not furnish a bond, but that the court thought the appellant was capable of securing a bond and that if he were incarcerated he would furnish it within a very short time. The appellant had had two illegitimate children by the same woman. Under the circumstances the determination of the trial judge to bring to the appellant a realization of his responsibilities for the children he helped bring into the world is commendable. But under the wording of Section 14-2-8, U. C. A. 1943, and the Bartholomew case, supra, a defendant may not be committed to jail unless he is able to furnish the security ordered by the court and refuses or neglects to do so. Nor does the statute contemplate incarceration for the purpose of coercing relatives or friends to come forth with security, if indeed such practice absent the statute were to be condoned. The bond which the court ordered the appellant to give is a bond for the due and faithful payment of the amounts ordered to be paid by him for the support of the children until they reach the age of eighteen years, a period of prolonged contingent liability for any surety. It is a matter of common knowledge that a bond of this nature is difficult to obtain. Practically, it would seem that unless the court is satisfied that the defendant owns sufficient property which could be given to and would be accepted by a surety as indemnity, the court would ordinarily have to conclude that the defendant was unable to furnish a bond. We do not mean however to exclude the possibility that a close relative such as a father or a brother might be so actuated by reason of a desire to see the offending defendant secure the payment of the basic obligation to support his offspring that he would be willing, absent any coercing by the court, to go on the bond of the son or brother as the case might be. In the instant case the appellant offered [363]*363to prove that he had contacted three professional bondsmen, three corporate bonding company representatives, and his brother, but in all instances they refused to become sureties on a bond to guarantee payments for the support of the children. Such would be the expected result of even honest and bona fide attempts to obtain a bond when a defendant cannot furnish indemnity. Thus in determining whether a defendant is able to obtain a bond the inquiry would perhaps best be directed toward determining what property the defendant possesses which could be utilized for indemnity purposes rather than toward the efforts he had made in a quest almost doomed to failure unless indemnity could be furnished. It is to be remembered that because a defendant is unable to furnish a bond, he is not thereby relieved from the obligation of supporting his children. If he is able to support them but fails to do so, he may be adjudged in contempt of court and incarcerated. The restraints on the use of contempt to compel payment of money for the support of the children are not so drastic as those on the use of contempt to compel the giving of security for the assurance of the payments. While a father may not be adjudged in contempt for failure to pay decreed support money if he has been unable to do so, the trial court has wide latitude in determining whether the father possessed that ability.
. The court made a finding of fact that the appellant was able but wilfully refused to furnish a bond, and consequently was in contempt of court. We are not apprised whether this finding was based upon a conclusion of the court that the appellant had sufficient property to indemnify a surety because the extent of the property which the trial court concluded that the appellant owned is not made clear in its findings of fact. Both the appellant and his brother testified that the appellant had no ownership in the former’s automobile business, but was an employee of his brother. However, the court found in its finding of fact number four:
[364]*364“That the defendant has in his name a franchise for a Willys Automobile Agency, and said automobile agency is being operated at Bountiful, Utah; that the defendant and his brother, Harold Calder, are closely associated together in the operation of said Willys Automobile Agency, as well as the operation of the Buick, Pontiac and G. M. C. Truck franchise held in the name of Harold Calder; * * *”
Given their normal meaning, the words “associated together” employed by the court indicate that the court concluded that the appellant had some ownership in the automobile business and was not merely an employee since an employer-employee relationship cannot properly be termed an association. Because the basis for the finding that the defendant was able to furnish a bond does not clearly appear, the judgment of contempt must be reversed and the case remanded to the lower court with instructions to clarify its finding in this regard. But as heretofore stated, unless the court is satisfied that the appellant owns sufficient property with which to indemnify a surety the court would have to conclude that the defendant was unable to furnish a bond unless, of course, some one should independently of coercion volunteer to furnish one. We express no opinion whether the court would be justified in concluding that the appellant was able to furnish a bond if it found that he owned an interest in his brother’s automobile business.
It is not necessary as contended by the appellant that the lower court make a finding of fact showing the appellant’s obligations and indebtedness. The court made findings that the appellant was capable of earning $300 per month and that a reasonable sum for him to pay for the support of the children was $200 per child for the first year following birth and $150 yearly thereafter for 17 years. In determining that the amounts adjudged were reasonable, the trial judge took into consideration the appellant’s income and his expenses inasmuch as the record reveals that the court after examining the appellant’s list of monthly expenses was of the opinion that by proper budget[365]*365ing the appellant could pay $30 per month for the support of the two children.
The order of the court committing the appellant to jail is reversed and the case is remanded to the lower court with instructions to grant the appellant’s motion to present evidence as to his inability to obtain a bond.
PRATT, C. J., and LATIMER and McDONOUGH, JJ., concur.