Appeal from Superior Court, Pima County; J. Mercer Johnson, Judge.
H. S. McCluskey, of Phoenix (Robert E. Yount, of Phoenix and Donald J. Morgan, of Prescott, of counsel), for appellant.
Stanley W. Kimble, of Tucson, for appellee Merle Oden.
Phelps, Justice. Udall, Stanford and Deconcini, JJ., concurring.
Note: Due to illness, the CHIEF JUSTICE did not participate in determining this appeal.
[68 Ariz. 235] The facts in this case are that appellees, Merle Oden and Louis D. Oden, were husband and wife and were the parents of Charles and William Oden; that in November, 1946, Merle Oden obtained a divorce from her husband and was awarded the custody of the above named minor children. The decree of divorce required that the said Louis D. Oden pay to Merle Oden the sum of $ 30 each per month for the support of said minor children until they reached the age of majority. That at the time the instant proceedings were instituted on September 23, 1948, Charles and William Oden were 16 and 13 years of age respectively and that up to September 1, 1948, Louis D. Oden had paid the sum of $ 440 only to Merle Oden for the support of said minor children and the sum of $ 1320 had accrued to that date thus making a balance then in arrears of $ 880.
Louis D. Oden was injured on March 25, 1944, while employed by Wm. Fitchett (Arizona Glass & Mirror Company) whose business was located in Arizona. He made application to The Industrial Commission of Arizona for compensation for said injury under the provisions of the Workmen's Compensation Act and thereafter on May 27, 1948, the Commission made its findings and entered a final award providing for the payment of the sum of $ 4117.60, compensation for temporary disability from March 26, 1944, through October 2, 1945, and from November 2, 1945, through September 28, 1947, plus the sum of $ 120.25 monthly for permanent partial disability for a period of 30 months dating from June 21, 1948, and for accident benefits.
[68 Ariz. 236] On September 23, 1948, Merle Oden instituted these proceedings in the original divorce action by filing an affidavit and motion for an order to show cause, why the said Louis D. Oden should not be required to make payment of said support money for the minor children of appellees in accordance with the provisions of said divorce decree, and asked that the Commission be brought in as a party defendant and that it be required to show cause why it should not be ordered to pay to appellee Merle Oden the amount then in arrears under the provisions of said divorce decree and the further sum of $ 60 per month for the future support of said minors out of the $ 120.25 monthly award made by the Commission to the said Louis D. Oden, until the expiration of 30 months from June 21, 1948. The trial court granted said motion and ordered the Commission to appear and show cause why it should not be required to make said payments direct to petitioner for support of said minor children.
Appellee Louis D. Oden filed no response to said order to show cause but appellant Commission filed its response setting up the following defenses:
1. That under the provisions of section 56-962, A.C.A.1939, the award is exempt from attachment, garnishment and execution.
2. That under the provisions of section 56-916, A.C.A.1939, the trial court was without jurisdiction in the premises.
3. That no motion for a rehearing was filed and no appeal was taken from its award of September 23, 1948.
The trial court found the issues in favor of Merle Oden and made findings of facts and conclusions of law which are a part of the record. The court found as a conclusion of law that it had equity powers to direct and order the payment of all or portions of the Commission's award as they became due, to the said Merle Oden and to authorize and allow the Commission the same credit as if said payments had been made to Louis D. Oden, and that Merle Oden was equitably entitled to an order of the court directing the Commission to make payments in accordance with such order. It thereupon ordered that the Commission be joined as an additional party defendant in the action and further ordered it to make payments in accordance with the prayer of the petition, directing that due credit be allowed the Commission and Louis D. Oden for payments made in accordance with said order.
The Industrial Commission has appealed from the order and judgment of said court and has ...