124 Neb. 274 | Neb. | 1933
Plaintiff in error, hereinafter called defendant, brings to this court for review the record of his conviction for contempt of court.
The record discloses that in a divorce action, instituted by defendant’s wife, a decree was entered awarding her a divorce, the custody of their three minor children, all the household furniture, fixtures and furnishings, then in their home, occupied by her, and ordering defendant to pay her for the support of herself and children the sum of $65 a month. This decree was entered the 8th day of January, 1931, and required the first monthly payment of alimony to be made the 19th of January, 1931.
Defendant alleges that the court erred in requiring him to be prosecuted in a proceeding in the divorce action, and contends that the prosecution should have been instituted by an information in the name of the state, and cites numerous cases of this court in which it has held that proceedings for contempt are, in their nature, criminal, to be governed by the strict rules applicable to prosecutions by indictment. See Hydock v. State, 59 Neb. 296; Bee Publishing Co. v. State, 107 Neb. 74; Beckett v. State, 49 Neb. 210; Hawes v. State, 46 Neb. 149; Herdman v. State, 54 Neb. 626.
From a careful reading of these and many other’ cases, involving the question of contempt, it is apparent that much confusion and lack of harmony exist, not only in
Where a party to an action fails to obey an order of the court, made for the benefit of the opposing party, the rule is well recognized that such act is, ordinarily, a mere civil contempt, and the rules applicable to a criminal contempt are not applicable. Where a civil contempt is charged, it may be by an affidavit by the party to the action who is injuriously affected. Procedure may be in the original action and need not be by information in the name of the state. It may be observed that the line of demarcation between the acts constituting civil and criminal contempts is very indistinct. Some courts hold that they are to be regarded as criminal when the purpose is primarily for punishment, and civil when the purpose is primarily compensatory. Much of the confusion in the cases is due to the fact that there are contempts in which both elements, criminal and civil, appear, so that a contempt proceeding may be of a dual' nature.
In Cain v. Miller, 109 Neb. 441, it was held that an order for the payment of temporary alimony for the support of a wife was designed to secure the performance of a legal duty, in which the public has an interest, and it was there held: “It is the duty of a husband to support his wife. When, in an action for divorce, a husband has been ordered by the court to pay temporary alimony for the support of his wife during the pendency of the suit, and the husband, being of sufficient ability to pay the same, wilfully and contumaciously refuses to pay, having no just or reasonable ground for his failure or refusal, such refusal constitutes contempt of court, and such order may be enforced by imprisonment until the amount ordered is paid.” The rule is applicable to the payment of permanent, as well as temporary, alimony.
The court did not err in the manner in which the proceeding was instituted and conducted. Defendant was apprised of the charge against him by an order to show cause, came into court, and defended.
It is further contended that the evidence is insufficient to support the finding and the order entered. The evidence shóws that defendant is wholly without any property except a Ford automobile. . The model, age, condition or value of the automobile is not disclosed. The record does not disclose how the automobile was obtained, but on oral argument it was stated by counsel that it was given to defendant to assist him in carrying on his occu
In Cain v. Miller, supra, this court held: “Imprisonment is a serious and drastic remedy. No one should be committed to jail for refusal to pay temporary alimony unless it is clear that the refusal is wilful and contumacious. If the defaulting husband has in good faith no means or ability to procure means wherewith to pay the alimony, does not- wilfully refuse to obey the order of the court, and has just or reasonable cause for his failure to do so, he may purge himself of the contempt by so showing, and in such case would be entitled to his discharge.”
Some authorities hold, and perhaps it is the general rule, that a prima facie case for civil contempt has been made when the proof shows that defendant has failed and neglected to pay the alimony for support of his wife and children, due upon an order made by the court. However, when the evidence is adduced and shows that he is financially unable to comply with the order of the court and is doing what he reasonably can to earn money for the support of himself, his wife and children, but is unable to earn enough to comply with the order of
The judgment of the district court is reversed, and the defendant discharged from the judgment for contempt. However, this is without prejudice to the right to institute other proceedings, or another proceeding for contempt, if the defendant becomes of sufficient ability to pay, and wilfully and contumaciously refuses to comply with the order made with respect to alimony.
Reversed.