No. 25,411. | Ind. | Dec 13, 1933
This is an appeal from a judgment of the Howard Circuit Court whereby the appellant was sentenced for contempt of court to the Indiana State *665 Farm for a period of 60 days. The alleged contempt is the failure to comply with a court order growing out of a divorce proceeding between appellant and appellee wherein the appellant was ordered to pay to the clerk of the court, a certain sum per week for the support of a child of appellant and appellee whose care and custody was given to appellee.
The appellant has set out ten assignments of error. The only one having any merit and properly assigned is the 4th which is that "the court erred in overruling appellant's motion for a new trial." Fourteen reasons for a new trial are assigned and the only ones with any merit are the 6th, 7th, 8th, and 9th, which state that the finding and decision of the court is contrary to law and that the finding and decision of the court is not sustained by sufficient evidence.
We have carefully reviewed the evidence in this case and we can not say that it does not support the finding of the lower court. There is some conflict in the evidence and the judgment 1. will not be disturbed on the sufficiency of the evidence.
This proceeding is one for civil contempt against appellant for failure to pay support money. Civil contempt has been defined to be a violation of an order, or decree of a court made 2, 3. for the benefit of the opposing party. It is not an offense so much against the dignity of the court as against the party. Denny v. State (1932),
The imposition of a term of imprisonment or fine in a case of civil contempt is for the purpose of coercing the contempt defendant to comply with the order of the court. The 4. distinction between the purposes of coercive measures in civil contempt and punitive measures in criminal contempt is pointed out in the case of Gompers v. Buck's Stove andRange Co. (1910),
"For example: If a defendant should refuse to pay alimony, or to surrender property to be turned over to a receiver, or to make a conveyance required by a decree for a specific performance, he could be committed until he complied with the order. Unless these were special elements of contumacy, the refusal to pay or comply with the order is treated as being rather in resistance to the opposite party than in contempt of the court. The order for imprisonment in this class of cases, therefore, is not to vindicate the authority of the law, but is remedial and is intended to coerce the *667 defendant to do the thing required by the order for the benefit of the complainant. If imprisonment, as aptly said In ReNevitt, 117 Fed. Rep. 451, `he carries the keys of his prison in his own pocket.' He can end the sentence and discharge himself at any moment by doing what he had previously refused to do."
In the case of Perry v. Pernet (1905),
In the instant case the court ordered the appellant to pay a certain sum of money per week to the clerk of the court for the support of his child. This he failed to do. For failure to 5. comply with the order of the court he was held in contempt and *668 sentenced for a definite period of sixty days to the Indiana State Farm. It is clear that the punishment in the instant case, it being a civil contempt, should be remedial and for the benefit of the child and not punitive to vindicate the authority of the court. The purpose of the punishment being to coerce the defendant to do what he had failed or refused to do, the decree or judgment should have been that the defendant stand committed unless and until he complied with the order of the court as made or the further order thereof.
On the payment of the amount ordered to be paid, the defendant is entitled to be discharged. Where one has been imprisoned in a civil contempt proceeding for failure to comply with an 6. order, such as in the instant case, and is able to show that he has not the actual ability to pay either because of poverty, sickness, or any other valid reason, then under such circumstances he is entitled to be discharged as to the present affidavit or citation. One cannot be kept indefinitely in prison for failure to pay support money if it can be shown that he has not the actual ability to pay. It has been held that such imprisonment would be unconstitutional as being "cruel and unusual punishment." Politano v. Politano (1933), 262 N.Y.S. 802" court="N.Y. Sup. Ct." date_filed="1933-03-01" href="https://app.midpage.ai/document/politano-v-politano-5422573?utm_source=webapp" opinion_id="5422573">262 N.Y. Supp. 802.
The lower court is hereby ordered to modify its judgment in accordance with this opinion.
Judgment affirmed. *669