373 So. 2d 846 | Ala. Civ. App. | 1979
This is a review by writ of certiorari of a judgment holding petitioner in civil contempt of court for failure to pay child support as ordered and confining him in jail for three months unless he purged himself by payment to the register of the sum of $500.
Upon original consideration this court
Petitioner was divorced from his wife in 1968. By the decree of divorce, petitioner was required to pay the sum of $15 per week as support for a child of the marriage. In 1977, the mother petitioned the court for a finding of contempt against the father for failure to pay such support. The father pleaded physical disability and financial inability to pay. A hearing was held and the father was ordered to begin paying the $15 per week or be held in contempt. He did not pay. A hearing was held on May 1, 1978. The court found him in contempt of court, committed him to jail for three months at hard labor or until he purged himself of contempt by depositing the sum of $500 cash in the office of the register.
The undisputed testimony was that the father had been determined totally and permanently disabled by the Social Security Agency and was drawing some $180 monthly as security income under United States Code, Title 42, §§ 1381-1383. His disability had occurred three years before when he had discs removed from his back and a fusion of the vertebrae performed. He had not been employed for ten years. He had remarried. His wife was unemployed and a child of that wife drew state aid for dependent children.
It is the law of this state, and our courts have stated, that lack of ability to pay alimony or support by the husband is a complete defense to a contempt proceeding for failure to pay.Gwin v. Gwin,
The judgment of contempt and the order confining petitioner to jail is reversed and is set aside. The $500 deposited with the register, having been determined to be merely a bond, is ordered returned to the one who deposited it.
Though it was not raised on appeal and we have reversed the judgment on other grounds, we think it pertinent to point out an erroneous aspect of the judgment apparent on its face. That is the fact that a specific term and form of punishment was meted out. The petitioner was not incarcerated until he purged himself of contempt by paying $500, but was sentenced to three months in the county jail at hard labor unless he paid $500. If he chose not to pay $500, petitioner could have served his sentence and been released. The Supreme Court in the case of Exparte Hill,
REVERSED AND RENDERED.
BRADLEY and HOLMES, JJ., concur.