172 Ga. 889 | Ga. | 1931
On January 31, 1924, Clelia Heflinger obtained against her husband, Charles Heflinger, in Fulton superior court a verdict and judgment for the sum of $37,500 as permanent alimony. The husband failed to pay said sum or any part thereof. His wife by proper proceedings sought to have him attached for contempt
In the latter part of May, 1930, the husband was arrested in Toledo, Ohio, under extradition papers issued by the Governor of this State; and was brought back to Georgia. On the way back he spoke to those in charge of him of this alimony judgment. He said: "It won’t do them any good. I haven’t any money. I did make some money, $53,000 last year, but I lost $40,000. I couldn’t raise $500 at this time. If they had come to me- a year ago I could have paid something, but now I can’t pay anything.”
On the hearing when he was adjudged in contempt the husband testified as follows:
I have not been in Georgia since the alimony judgment was obtained. Was never in this State from 1922 until brought back under the extradition papers. Have not got any money now with which to pay the alimony judgment. It is all gone. I have paid my attorneys $300, and that is all the money I had in the world. 'I do not own any property, stocks, or bonds. Have not had any money since last October. The daughter of my first wife is
The wife testified that after she had obtained her alimony judg
On the hearing of the application for modification of, and discharge from, the contempt judgment, Heflinger testified as follows: Since the trial of the contempt proceeding I have not been able to raise the $15,000 assessed against me by the court. I have not been able to raise any money at all since that time. At the time of the hearing I did not have any money. I gave my attorneys the last I had. I have no property, no stocks, no bonds, nor any realty or choses in action. I have no position whereby I can pay alimony. I have been associated in jail with Mr. Eden. He was a cellmate of mine for awhile. I did not tell him that I never did intend to pay this woman one dime of the alimony for which she had judgment against me. Never told him that my lawyers had advised me that if I stayed in jail three months that they would get me out without the payment of any money. My lawyer had at first said that after three months he might be able to get me out.
W. 0. Eden testified for plaintiff, as follows: I was a cellmate of Heflinger part of the time. He discussed with me the matter of his paying this alimony. He said he was not going to pay it. He said, “My lawyers told me that I will have to stay in jail about 90 days, and will be released at that time.” He said, “I will not pay these damn people a dime.” He said that several times. I have been in penitentiary several times. I have been in the Federal Prison. I was found guilty of burglarizing a store and was sent to the penitentiary for that, but I was innocent.
The trial judge passed an order denying the application of the husband for a modification of, and a discharge from, the judgment finding him in contempt of the court for failure to pay the alimony judgment obtained by the wife, and fixing the terms upon which he could purge himself of the contempt. To this judgment the husband excepts, and says that the court erred upon the grounds (a) that it was contrary to law and was without evidence to support it, (b) that it amounts to a perpetual imprisonment for debt, and (c) that it was an abuse of the court’s sound discretion, for the reason that the evidence disclosed conclusively that the husband was financially unable to comply with the judgment of the court order
Where the uncontroverted evidence shows the inability of the husband to pay the judgment awarded his wife for permanent alimony, it is error to adjudge him in contempt or to keep him confined in jail under an order adjudging him in contempt. Potter v. Potter, 145 Ga. 60 (88 S. E. 546); Lightfoot v. Lightfoot, 149 Ga. 213 (99 S. E. 611); Newsome v. Newsome, 155 Ga. 412 (117 S. E. 90); Blair v. Blair, 166 Ga. 211 (142 S. E. 743) ; Wooward v. Wooward, 172 Ga. 713 (158 S. E. 569)., Under the evidence in this case we can not say that the judgment of the trial judge is without evidence to support it. The alimony judgment was rendered on January 31, 1924. The husband has never paid the wife any amount of this judgment. It is true that, taking his evidence as entirely true, he is now unable to pay this judgment. There is evidence authorizing the judge to find that the husband was a salesman of high earning capacity, that his manner of living shows that he is a man of means, and that since the rendition of this judgment he was certainly able to make the wife payments upon the same. There is evidence to show that he had earned a large amount of money the year before he was adjudged in contempt of the court. It is true that he claims that he lost $40,000 of the $53,000 which he earned in stock speculation during the year 1929. He does not account for the difference of $13,000. The evidence discloses that he received from the sale of real estate considerable sums of money. The evidence discloses that he received large income from salaries and commissions as a salesman up to 1923. There is further evidence that the husband had been advised that, if he was committed for contempt for failing to pay alimony to his wife, he would probably be discharged in about three months; and the inference from this fact may be drawn that he preferred temporary confinement in the jail to the payment of large alimony to his wife. The evidence further discloses that he had declared that the wife never should get a dime on her alimony judgment. From these and other facts appearing in the record we can not say that the trial judge erred in refusing to discharge the husband from custody. In a case of this kind the punishment of the husband for contempt is a remedial process necessary to the administration of justice and to secure to the wife the alimony which has been awarded her. The punishment, by confinement in
It is next urged that the denial by the court to discharge the husband amounts to a perpetual imprisonment for debt, for the reason that in denying his application for discharge the court makes the judgment committing him for contempt absolute, and for this reason he can never be discharged from imprisonment. The enforcement of a final decree awarding alimony to a wife by attachment for contempt is not equivalent to imprisonment for debt. Carlton v. Carlton, 44 Ga. 216; Lewis v. Lewis, 80 Ga. 706 (6 S. E. 918, 12 Am. St. R. 281) ; Lamar v. Lamar, 123 Ga. 827 (51 S. E. 763, 107 Am. St. R. 169, 3 Ann. Cas. 294). The judgment complained of is not conclusive as to the duration of the imprisonment. The refusal to modify the judgment finding the husband in contempt is no more conclusive than the judgment adjudging him in contempt. We have seen that attachment for contempt in this case was remedial. To guide the discretion of the court in administering remedial punishment, the term of which is not fixed by law, all pertinent facts may be adduced and considered, no matter whether they be consistent or inconsistent to the previous judgment in the same or in any other case. If so, the imprisonment might be perpetual. Kingsbery v. Ryan, 92 Ga. 108 (2) (17 S. E. 689). So the judgment complained of is not an adjudication that the husband must be perpetually imprisoned for his failure to pay alimony to his wife.
It is next urged that the court erred in denying the husband’s application for discharge on the ground that the judgment of denial is an abuse of the court’s discretion, for the reason that the evidence disclosed conclusively that the defendant was financially unable to
Judgment affirmed.