63 Minn. 443 | Minn. | 1896
Action for divorce. Prior to April 10, 1895, the district court made its orders directing certain sums of money to be paid by the plaintiff to the defendant for attorney’s fees and temporary alimony. The plaintiff paid a portion of the amount so ordered to be paid, but neglected and refused to pay the balance, so that, on the day named, there was due and unpaid by the terms
G. S. 1891, § 1810, provides that, if the husband in an action for a divorce disobeys the order of the' court directing him to pay alimony, he may be punished by the court as for contempt, pursuant to Gr. S. 1891, c. 87, § 6168, which reads as follows: “When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he performs it; and in that case the act shall be specified in the warrant of commitment.” The plaintiff claims that the statute authorizing the imprisonment for contempt in refusing to pay alimony is a violation of the constitution forbidding imprisonment
It follows, then, that the plaintiff is not guilty of contempt of ■court in not paying the alimony as ordered, if he was unable to do so, and did not voluntarily create the disability for the purpose •of avoiding such payment; but if, at the time the order appealed from was made, he had-yet (that is, still) the power to- do the act he was ordered to do, and pay the alimony, his refusal was a contempt, and the order of the court imprisoning him until he purged himself of the contempt by making such payment was legally and properly made.
It is claimed on behalf of the plaintiff that his refusal to pay the alimony was not willful, but that it was beyond his power to do so, and that it was not shown on the hearing of the motion that he could pay the alimony if he would. The burden, however, was on him to show that he could not comply with the order, for the ■orders fixing the amount of the temporary alimony, and directing its payment, were not appealed from, and it must be presumed, prima facie, at least, that, in fixing the amount to be paid, the ■court fully investigated the plaintiff’s pecuniary condition and resources, and directed him to pay only such reasonable sum as he was able to pay. Therefore, when it was shown that he had not obeyed the orders of the court, a prima facie case of contempt was made against him, and the burden was upon him to show that It was not in his power to obey the order. His financial condition .and resources were matters peculiarly within his own knowledge,
The claim of the plaintiff that he was convicted without notice or trial is not sustained by the record so far as that part of the order appealed from is concerned. The motion was for a peremptory-order directing the plaintiff to pay the alimony, and, if he failed to obey, that he be punished for contempt. He appeared, and opposed the motion, not on the ground that no demand had been made upon him for payment, or because he was not given an opportunity to be heard, but because he was unable to comply with the orders of the court.
Order affirmed.