This is an appeal from an order of the trial court finding appellant in contempt of court for failure to pay alimony and child support pursuant to a divorce decree.
1. The first question presented for decision is whether the trial judge erred in holding appellant in wilful contempt of court. Once a debt has been established, the sole issue in a proceeding to enforce an alimony judgment by attachment for contempt is whether the husband wilfully refused to pay, or whether his failure to pay is due to his inability.
Horton v. Horton,
We have reviewed this transcript and find no error in the trial court’s finding of wilful contempt.
2. Appellant assigns as error the sentencing of him to a definite period of imprisonment, such being tantamount to imprisonment for debt, and the ordering of him to pay a fine and attorney fees.
The order in relevant part, reads as follows: "[T]he *123 court finds as a matter of fact that respondent is in wilful contempt of this court’s order for his failure to pay the sum of $1,650 from August, 1975 through October, 1975.
"It is therefore ordered that the respondent ... be incarcerated in the common jail... for a period of (5) five days . . . and further that he pay a fine of $150.00 to the sheriff . . . and $150.00 to movants [sic] attorney for prosecuting this application, then the court shall consider his contempt purged.”
Georgia has had a long standing constitutional prohibition against imprisonment for debt. Therefore, a husband may not be imprisoned for failure to pay alimony unless it is first found that he has the ability to pay but merely refuses to do so. In such circumstances, the contemnor may be imprisoned only under a conditional sentence pending the contemnor purging himself by paying such sums as the evidence shows he is able to pay.
Mathews v. Mathews,
The decree provides for a fine against the appellant of $150. By its very definition, penal fines are not appropriate in the enforcement of civil or remedial contempt. Such are more indicative of the criminal penalties of direct summary contempt under Code Ann. § 24-2615 (5).
See Mathews v. Mathews,
supra. The purpose of the civil proceeding, as to enforce a decree of alimony, is to enforce the compliance with a court order for the protection of some right of the complaining party.
Wagner
*124
v. Commercial Printers,
A judgment for attorney fees in a contempt case is proper where a finding of contempt is authorized. Code Arm. § 30-219 (Ga. L. 1947, p. 292);
Balasco v. Balasco,
For the foregoing reasons, the contempt decree is affirmed with direction that the trial court amend its order to allow the appellant to purge himself of contempt by payment of the attorney fees and the arrearage found to be due or such part thereof as the court determines the appellant is able to pay.
Judgment affirmed with direction.