— This is an original proceeding in certiorari, to review the action of the respondent, in rendering judgment against petitioner as punishment for contempt because of his failure to pay monthly installments for alimony for petitioner’s divorced wife, and for the support of the children. The decree of divorce was granted on January 24, 1931. By the terms of the decree, the plaintiff-wife was granted the care and custody of their minor sons, James Roberl Roach and Paul Frederick Roach. The decree further provides that the children shall continue to reside in Lyon County until otherwise ordered or permitted by the court, and that the defendant therein (the petitioner herein) and the grandparents of said children shall *802 be permitted to see and visit said children at reasonable times and places, and permission was given to the plaintiff-wife to permit said children to visit their grandparents at reasonable times at the grandparents’ home.
Relative to alimony and support for the children, the decree' provides:
“It is further ordered and adjudged that the plaintiff be, and she is hereby awarded judgment for alimony and for alimony and support money for herself and said minor children, in the sum of Seventy-five ($75.00) Dollars per month payable in the sums of $75.00 on or before the 10th day of each and every month hereafter until said minors become of legal age, or until otherwise ordered by the Court.”
On appeal to this court, the decree was, on June 20th, 1931, affirmed. See Roach v. Roach,
Section 10482, Code 1931, provides:
“If any party against whom such decree. [decree for divorce, alimony and support] has been entered, shall wilfully disobey the same, or secrete his property, he may be cited and punished by the court for contempt.”
Section 12544, Code 1931, provides:'
“If the contempt consists in an omission to perform an act *803 which is yet in the power of the person to perform, he may be imprisoned until he performs it.”
The questions for our determination are: Has the petitioner performed the requirements of the decree, and if not, has he wilfully disobeyed the same?
The case is not triable here
de novo,
yet, the judgment of the lower court in contempt cases does not possess, in full measure, all the attributes of the verdict of a jury. In other words, the findings made by the respondent court are not conclusive on review, but it is for this court to say, having due regard for the findings of the lower court, whether the facts satisfactorily establish and constitute contempt. See Mason v. District Court,
It appears from the record, that the older boy, nine years of age, has been with the petitioner in the home of petitioner’s father and mother during the major portion of the time since the granting of the decree. The evidence of petitioner shows that, during this period of time, the petitioner has paid for clothing, washing, ironing, mending, school supplies and medical attention for said boy, the sum of $131.75, and it is the claim of the petitioner that he is indebted to his- father for room and board for himself and for the boy during this period of time at the rate of $45.00 per month, and that $97.50 has been paid thereon. The petitioner’s contention is, that, by reason of these matters, he is not now in default as to the monthly payments amounting to $375.00 now claimed to be due — that what he has already paid for the boy, and obligated himself to pay, as claimed by him, exceeds the amount of the monthly installments claimed by the plaintiff-wife. It will be noted that the judgment of $75.00 per month was in favor of the plaintiff-wife, and that she was granted the custody of both children. This judgment could not be paid or satisfied without the money being received by the plaintiff-wife, or paid to others by her authority. There is no claim by the petitioner that the payments made by him for the son, or that the aforesaid arrangements claimed to have been made by him in behalf of said son, were with her authority or consent. Therefore, it cannot be asserted that the doings of the petitioner in the aforesaid respects amount to a payment upon
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the judgment. This is not a proceeding under the latter sentence of Section 10481, Code 1931, for modification of the decree by reason of changed conditions and circumstances since the granting of the decree, which might warrant the court in the exercise of equitable principles to grant a change therein. Even in such a proceeding, the accrued and unpaid payments for alimony and for support of the children are beyond the power of the court to modify. See Kell v. Kell, 179 Iowa
647;
Delbridge v. Sears,
There is no claim that the petitioner has secreted any of his property. Therefore, the remaining question for our consideration is as to whether the petitioner has wilfully disobeyed the decree in failing to make payment of the monthly installments. It is the petitioner’s contention that he is unable to pay the same. It must be conceded that actual inability to pay is a complete defense to a charge of contempt of court. In other words, no one should be punished for failure to perform an impossibility. See Pewick v. Meyer,
The income of the petitioner, while not large, is sufficient to pay what the decree provides for the support of the wife and children. The record shows that the petitioner paid out of his income the monthly installments up to and including the one due on October 10th, 1931. He still has the same income and the monthly payments are the same. To make the payment out of his income is no more difficult now than, it was then. He was able -to pay then. He is equally able to pay now. Without further discussion, we must hold that the record is not such as to show the petitioner’s inability to pay. He has not sustained the burden resting upon him to purge himself of contempt.
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The petitioner, in his argument, asserts: “The judgment of the respondent amounts to the imprisonment of a defendant for debt.” The holding of this court is, that the award of an allowance for the support and maintenance of the wife and children is not a debt in the constitutional sense of imprisonment for debt. See Mason v. District Court,
Upon a careful consideration of the entire case, we reach the conclusion that the petitioner has wilfully disobeyed the decree of divorce in failing to make the monthly payments, and that the writ of certiorari should be dismissed and the order of the respondent should be affirmed. It is so ordered. — Writ dismissed and order affirmed.