194 Ind. 140 | Ind. | 1923
In April, 1916, in an action brought by appellant, the trial court found for appellee on her cross-complaint and granted her a divorce, with $10,000 alimony, $950 attorney fees, and $288.79 expense money, and awarded her the custody of the three “minor children of the parties”, Frances, Dorothy and Katherine; and it was ordered “that the plaintiff pay to the defendant * * * for the maintenance of said minor children $20 per month for each of said children * * * on the first day of each month”, etc.
The alimony, attorney fees and expense money were paid. But four times in the next three years, the record recites that appellee filed petitions asking that appellant be cited for contempt, though the petitions are not set out in the transcript. In November, 1919, upon a petition by appellee and a cross petition by appellant, there was a hearing before a special judge chosen “by agreement of all parties”, and he modified the order so as to direct that appellee (the mother) should continue to have the custody of Frances, Dorothy and Katherine, “minor children of the parties”, and that appellant should “pay to the clerk of the court $100 on the first day of each month for the care, support and education of said children by the defendant, Jennie Pearl Kerr”, but that such order should not be a lien on appellant’s real estate; that appellant should be per
Thereafter appellee filed a verified petition asking that appellant be ordered to show cause on September 11, 1920, why he should not be punished for contempt of court, in which petition she stated under oath that he had never paid more than $72 in any month, that he had paid nothing in the last two months, and was delinquent $475 in his payments, and that appellee had maintained, clothed and fed the children. On November 8, appellee filed a further verified petition stating that the modified order of court above referred to had been entered, and that nov payment had been made thereunder to the clerk, but that she had received “indirectly” from appellant less than half the sum ordered paid, and asserting that there was due from appellant $663, which he refused to pay. This statement concluded with a request that judgment be entered in her favor against appellant for $663, and that she have execution for that amount. Judgment was rendered accordingly, but, on motion of appellant, it was- set aside and vacated, and nothing more is shown to have been done in the way of entering a money judgment. Thereafter, in December, appellee filed a “supplemental petition”, in substantially the same words as the petition filed in September, except that the amount in which appellant was alleged to be delinquent was $873, and asking a rule against appellant to show cause why he should not be attached for contempt in failing to pay that amount. A change of venue from the regular judge being taken, and a special judge having qualified,
The demurrer was overruled and appellant excepted.Appellant then filed what he called a “verified answer to the defendant’s petition and supplemental petition.” This answer stated that appellant had paid $60 per month for the support of the children until the first of August, 1920, except during four months when they were visiting in. Ohio, but did not deny the charge that he had never obeyed the order to pay $100 per month at any time since it was entered; it alleged that, since the divorce suit was commenced in 1915, appellant had paid out for alimony, attorney fees and the support of the children “approximately $20,000”, and stated the conclusion “that as a result of such payments more than one half of plaintiff’s estate and earnings had been expended in” making such payments and “for attorneys and incidental expenses caused by said divorce proceedings”, without indicating the amount of such expenses and attorney fees; but it did not state anything as to the amount of his property or of his income at the time of filing such answer; it alleged that, since the time fixed by the amended order ■for payment of the first sum of $100 (of which he only claimed to have paid $60), appellee has refused to permit him to see the children or to take them to his home. It also contained allegations of other facts which it might be proper for the court to consider in passing on a motion to modify the order for the custody and maintenance of the children, most of which were contained in his cross-petition to modify such order on which the order that he pay $100 per month was made as stated above. The remainder was made up of
The contempt proceeding was tried on March 3, 1921. Evidence was offered to the effect that the modified order for the payment of $100 by appellant on the first of each month to the clerk of the court “for the care, support and education of said children by the defendant, Jennie Pearl Kerr”, was made on November 14, 1919; that he never paid anything to the clerk and did not pay anything to anybody for their support after the month of July, 1920, and that he had paid only $65 each month up to that time, except in March, when he paid- $72, and that appellee had supported, maintained, clothed, educated and cared for each of the children. Appellant then offered and was permitted to read in evidence said affidavit which had been filed as an answer and struck out by the court, in which he expressly admitted that he had not made any payments since the first of August, 1920, and only
But appellant insists that the court had no power to send him to prison for refusing to obey an order that he pay money for the support of his children in the custody of his divorced wife. The Supreme Court of Indiana has decided that question against his contention, and we are content with its construction of the law. Stonehill v. Stonehill (1896), 146 Ind. 445, 45 N. E. 600; Leibold v. Leibold (1902), 158 Ind. 60, 62 N. E. 627; Perry v. Pernet (1905), 165 Ind. 67, 74 N. E. 609, 6 Ann. Cas. 533. The decisions cited by appellant to the effect that the statute for including in a decree of divorce a judgment for alimony (§1088 Burns 1914, §1047 R. S. 1881), and the statute authorizing the application of a man’s property to the support of his family when he shall have deserted them (§7869 Burns 1914, §5132 R. S. 1881), give the court no power to enforce its judgment by imprisoning the husband for nonpayment of the' alimony or of the
Appellant complains of the ruling on his demurrer to the petition filed November 8, 1920. But the record shows clearly that the judgment recovered on that petition was set aside and vacated, and that the one appealed from was based on the petition and supplemental petition which charged contempt of court in failing to obey an order against him, and that neither of them was demurred to. The ruling on the demurrer was not carried into the final judgment, and would not be cause for reversal even if that ruling were erroneous. Therefore, we shall not consider the question whether or not it was correct.
The judgment is affirmed.