Ex parte Hall

| Ark. | Oct 2, 1916

Kirby, J.

(after stating the facts). The testimony is in conflict, but we are unable to say that the chancellor’s finding that petitioner had failed to perform the judgment of the court and was due the sum of $160.00 thereunder is clearly against the preponderance of the testimony.

Petitioner insists that so long as he was making a bona fide contention that he had paid the judgment of the court for alimony, supported by substantial testimony, that the chancellor was without authority to commit him for contempt. He knew the court’s order and judgment against him for the payment of alimony and that demand had been made therefor, and answered the citation, alleging that he had complied with the decree and was in no wise in default or contempt.

The court after hearing the matter found that he had failed to comply with the decree foT payment of the alimony and that he owed $160.00 under the terms of it, which he declared he was able to pay, but declined to do so.

(1) It is well recognized that after a decree has been rendered for permanent alimony', payment thereof may be enforced by attachments or orders committing for contempt.

“Even after the expiration of the term at which a decree for permanent alimony was granted, payment thereof may be enforced by an order committing the husband for contempt of court, owing to the fact that alimony does not constitute a debt wit’hin the meaning of that term as used in the usual constitutional inhibition against imprisonment for debt. * * * Although statutes frequently provide for enforcing the payment of alimony by attachment for contempt, nevertheless a court has inherent authority to do so even in the absence of statute.” 1 R. C. L. 960.

Cyc says: “The right to enforce payment of permanent alimony by contempt proceedings belongs inherently to the courts having jurisdiction in divorce suits, or is conferred upon them by statute as a necessary incident to the execution of such jurisdiction; nor does the imprisonment of the husband as a result of contempt proceedings violate a constitutional provision against imprisonment for debt.” 14 Cyc. 799. See, also, Staples v. Staples, 24 L. R. A. 433, and note, and nóte to 137 A. S. R. 875, for a collection of cases upon the subject.

Our statutes recognize proceedings for contempt as an appropriate remedy for enforcement of orders and decrees for payment of alimony pendente lite and our decisions indicate that it may be resorted to for the collection of permanent alimony upon a decree rendered therefor. See. 2682, Kirby’s Digest; Pryor v. Pryor, 88 Ark. 310; Casteel v. Casteel, 38 Ark. 477" date_filed="1882-05-15" court="Ark." case_name="Casteel v. Casteel">38 Ark. 477; Shirey v. Hill, 81 Ark. 137" date_filed="1906-12-17" court="Ark." case_name="Shirey v. Hill">81 Ark. 137.

(2) The petitioner’s failure to pay the alimony in accordance with the decree of the court therefor, appears to have resulted from a bona fide belief that he had more than paid the amount thereof in rents and supplies acceptable to Eliza Hall, and not from a contumacious disregard of the court’s decree or in wilful disobedience of it. The court having heard the matter upon his answer to the citation and found that he had failed to comply with the order and was still due a balance of $160.00 in accordance with its terms, shoiild have fixed a short day for the payment thereof and not have committed petitioner to jail immediately until it was paid, thus giving him an opportunity to take steps for a review of the judgment before being committed tó prison.

Since the judgment has been suspended, however, upon the writ issued from this court, which has affirmed it as to the amount due, and the petitioner, who admits his ability to pay will have 15 days from this time in which to comply with the order of the court below, its judgment is affirmed.