Ramsay v. Ramsay

87 So. 491 | Miss. | 1921

Smith, C. J.,

delivered the opinion of the court.

The appellant and the appellee became husband and wife in December, 1918, and have one child. In September, 1919, the court below granted the appellee a divorce, awarded the custody of their child to her, and directed the appellant to pay the appellee permanent alimony in monthly installments of seventy dollars each for the support of herself and their child, and required the appellant to execute a bond to secure the payment thereof in the sum of one thousand dollars. The appellant, in default of the execution of this bond, was committed to prison, and his fruitless, effort to obtain a release therefrom in a habeas corpus proceeding will appear from the case of Edmondson v. Ramsey, 84 So. 455. The bond seems never to have been given, but the appellant was released from prison, and paid two and a part of the third of the ap-pellee’s monthly allowances.

In May,, 1920, the appellee filed a petition in the court below, praying that the appellant be cited to appear and show why he should not be adjudged in contempt for failing to comply with the decree directing him to make the monthly payments to her. Though no order so to do appears in the record, the sheriff who served the citation on the appellant seems to have taken him into custody, for he required of him a bond to appear before the court and answer the appellee’s complaint. On the return day of the citation the cause was continued at the request of the appellant to a later day before the chancellor in vacation, and the appellant was admitted' to bail upon the execution of a bond therefor in the sum of one thousand dollars.

Complaint is made because of the requirement of these bail bonds, but we are not called on to determine whether or not they should have been required, for the reason that any question relative thereto has become of no value to the appellant, as he complied with the conditions thereof by appearing at the court when required thereby, and was afterwards taken into custody by the sheriff in obedience to the court’s final decree, as will hereinafter appear -

When the case came on for trial the appellant filed an answer to the appellee’s petition, setting forth that his failure to comply with the decree of the court was caused by reason of the fact that he was wholly without the means so to do, and also prayed the court to modify its former decree “to the extent that he may be relieved from sentence of imprisonment on account of giving security for tbe payment of said alimony, and that said dcree may be further modified by relieving him from the payment of alimony, at least until he is able to support himself.”

It appears from the evidence that the appellant has no property, and must support himself and pay the appellee’s alimony from his earnings. He is an automobile mechanic and salesman, and earned during a portion of the time since the rendition of the decree in the divorce proceedings the sum of one hundred and fifty dollars a month, but had earned nothing whatever for the last three months preceding his citation for contempt. He claims to have spent the money earned by him in necessary living and running expenses, but the only specific evidence relative thereto, other than that of the money paid to the appellee hereinbefore referred to, is that he lived most of the time in expensive hotels, for the reason, according to his own testimony, that he could not obtain more modest quarters. The appellant and the appellee are both able-bodied, and the appellee not only can work, but was earning at the time of the trial sixty-five dollars a month as a saleswoman in a department store. The appellant has made several bail bonds in this matter since the rendition of the divorce decree, one of which was made by a former army comrade, and another by his ‘ employer, and others procured by his attorney.

On this evidence the court below entered a decree adjudging the appellant guilty of contempt for failing to comply with the requirements of the decree rendered in the divorce proceeding, and entered a fine against him in the sum of fifty dollars, the payment of which was “suspended pending good behavior and the faithful performance by the said N. K. Ramsay of the terms and conditions of this decree hereinafter imposed upon him.” The appellee’s alimony was reduced from seventy dollars to fifty dollars a month, the bond required of the appellant was reduced. from one thousand dollars to five hundred dollars, and he was directed to pay the appellee two hun-tired and fifty dollars of the amount be was in arrears under the original decree, and was committed to jail until he should pay the two hundred and fifty dollars and execute the five hundred dollar bond. From this decree he appealed to this court.

The power of the court to award alimony to va wife in a divorce proceeding is measured by section 1673, Code of 1906 (Hemingway’s Code, section 1415), and is to make such allowance therefor as may seem equitable and just, having regard to the circumstances of the parties and the nature of the case.

The circumstances surrounding the parties to this proceeding are that neither of them have any property and each is able to work, but that the appellant has no' property and the appellee is able to earn, something by her own labor will not release the appellant from the obligation, assumed by him when he entered the marital relation, to contribute to her support if her necessities-so require, particularly in view of the fact that she is caring, for his child. 19 C. J. 255; 2 Bishop on Marriage and Divorce (5th Ed.), section 446.

When the husband is without property and must support himself out of his own earnings, and the wife is able to and does earn something by her own labor, that fact should be taken into ‘ consideration in determining what amount the husband should contribute to her support, unless the prospective earnings of the husband are sufficient in amount to make it. equitable and just for him to bear the whole burden of the wife’s support. This, we presume, the court below did, and we cannot say that the allowance to the appellee of fifty dollars a month is excessive. The purpose sought to be accomplished by this proceeding is to coerce the appellant into complying with the decree awarding alimony to the appellee; the power so to do, if statutory authority therefor is necessary, being probably conferred upon the court below by section 560, Code of 1906 (Hemingway’s Code, section 320), and cer-lainly by section 999, Code of 1906 (Hemingway’s Code, section 719).

The appellant’s failure to comply with the decree directing him to pay alimony to the appellee placed him prima facie in contempt of court, and devolved on him the burden of proving his inability to make the payments directed, and had he failed to meet that burden the court beloAV’would have committed no error in committing him to jail until he complies with its decree. But that burden was fully met by him, for it appears from the evidence, AA'ithout conflict, that he has no money at all and no means of obtaining any except by his own labor. This being true, lie cannot pay the alimony or any part thereof until he earns the money necessary for that purpose, and, if he should be confined in prison, he will not while there be able, of course, to earn any money at all, so that to commit him to prison would defeat the purpose sought to be 'accomplished.

Under section 1673, Code of 1906 (Hemingway’s Code, section 1415), the court may, “if need be, require sureties for the payment of the sum so alloAved” to the Avife as alimony, but when the giving of such sureties is ordered the husband is not in contempt until he fails to obey the order, and not then if his failure to obey the order resulted solely from his inability to do so. It is clear from the evidence that the appellant has been unable to give the bond required of him in the original decree and will be unable to give that required in the decree appealed from unless some friend should come to his relief and assume the obligation for him without security therefor, and such a friend he does not seem to possess. He should not have been committed to prison, either until he shall pay the arrears of alimony or give the bond required.

The appellant has a right to pay his necessary living expenses out of his earnings before paying anything on the decree aAvarding alimony to the appellee; but he must live economically, and whenever he has any money not then required for his living expenses, it is his duty to pay it on the decree, and any failure so to do will be a contempt of court, punishable as such. In order to purge himself of contempt in not complying with the decree of the court, the appellant should not only have disclosed the full amount of money earned by him, but also have shown that it was consumed in paying his bare living expenses. In order to do this he must fully disclose for what the money earned by him was spent, and not, only did he fail to do this, but it is apparent from the evidence that he made little, if any, attempt to save anything from his earnings, but, on the contrary, he seems to liave lived in a style wholly unwarranted by his financial condition. Unless he has made an honest effort to pay the alimony awarded to the appellee he is in contempt, and, since it does not appear from the evidence that he made any such effort, the court below committed no error in imposing-on him a fine of fifty dollars, for the court is not limited to imprisoning a person who disobeys its decree until he complies therewith, but may also fine him for having disobeyed the decree.

Since the appellant’s financial condition is such that he cannot be imprisoned until he pays the arrears of the installments of alimony, or until he executes a bond so to do, the only way in which he can be coerced into paying the alimony is to hold over him the power to punish him for contempt when it shall be made to appear that he has not paid any of an installment of the alimony, but could have done so, had he so desired. Whether the court below was authorized to suspend the collection of the fine seems not to be objected to, and will not be determined.

For the error in committing the appellant to prison until he. shall have paid the arrears of alimony and executed the bond required of him, the decree of the court below will be set aside, and a decree entered here in accordance with that rendered below, with the omission of' the clause referred to.

Reversed and' remanded.