Hamblin v. Hamblin

65 So. 113 | Miss. | 1914

Cook, J.,

delivered the opinion of the court.

Lottie Hamblin filed a bill of complaint asking for a dissolution of the bonds of matrimony binding her and her husband, John Hamblin. The bill also asked that the court require her husband to pay her alimony pendente lite. John Hamblin answered the bill and denied all of the allegations charging him with a violation of his marital obligations, and also advised the court that he was old and decrepit and was financially unable to pay alimony pendente lite. A motion for alimony was made by the-complainant, and the court recites in its decree that, “after hearing the evidence, doth find -that the motion. should be sustained.” -Subsequently complainant filed a petition charging- that ‘1 defendant has sufficient property -out of which to pay said alimony pendente lite, but that he willfully and eontentiously refuses to do so.”

Defendant was cited to appear and show cause why he should not be held in contempt. He did appear and filed his answer, protesting that he had not eontentiously refused to to obey the order of the court, but he had not paid the alimony for the compelling reason that he did not possess the ability to do so. Upon this state of the pleadings the court entered the following decree, viz.: “Be it remembered this came on to be heard on the petition of the complainant charging the said defendant with contempt of this court, for his failing to comply with the order of the court at the last term, to pay alimony pen-dente lite, when the court after being fully advised as to all matters and things pertaining thereto, and the defendant being heard in court and represented by counsel, the court doth find that the said defendant is in contempt •of this court for his failure to comply with the said order of this court in paying said alimony pendente lite, which up to this time is one hundred dollars, and, the said defendant having refused to comply with the order of the court, he is ordered confined in the Union county jail until he does pay the amount due on said former decree •or purges himself of said contempt; when he shall pay what is now due, he shall be discharged. He is hereby relieved from further payment of amounts hereafter becoming due under said former decree. Ordered, adjudged, -and decreed the 1st day of November, 1912.” This appeal is upon the record, and we have nothing before us save the pleadings and the orders and decrees of the court.

It is earnestly insisted that the chancery court should be reversed. It is contended that the record must affirmatively show the court judicially determined that the defendant was able to pay the amount the court ordered bim to pay before he could be punished for contempt. We believe this to be a correct statement of the law. Looking* to the decrees it appear therefrom that the chancellor was “fully advised as to all matters and things pertaining' thereto,” and, being so advised, judicially determined that the defendant was in contempt. To find that defendant was in contempt, it was necessary to find that he was able to obey the decree of the court. The defense-was that he could not pay, and the chancellor must have-found that his defense was not supported by tbp facts.

Affirmed„