9 S.E.2d 654 | Ga. | 1940
The record does not show conclusively and as a matter of law that the husband was unable to comply with the verdict and judgment requiring him to pay the sum of $6.50 per month as alimony for the support of his minor child; and consequently the order adjudging the defendant to be in contempt can not be disturbed by this court.
Paragraphs 2, 3, 4, and 5 of the application for the attachment alleged recovery of the judgment for alimony as stated, payments made and balance due, custody and support of the child by the applicant, request of the defendant for payment, and his ability to pay "if he would make the proper effort." Paragraph 5 alleged that "He has not been released from liability [for the payments] but is still liable for them." In paragraph 6 it was alleged that petitioner has been put to the expense of an attorney's fee of $10 "to have this petition brought for the collection of the amount now due her by defendant." Regarding all of these averments, the defendant alleged in his response: "That for want of sufficient information defendant can neither admit or deny the allegations contained in paragraphs two, three, four, five, and six of plaintiff's petition for order nisi." The response further alleged, among other things, that the defendant is unable to make the payments, owing to his poverty; that he is unable to do manual labor, as he is suffering with a hernia; and that he is uneducated and is not suited for any kind of work except manual labor. The response, although *383 introduced in evidence by the defendant, was not positively verified, the oath subscribed and attached thereto being simply that the facts stated therein were true and correct to the best of the respondent's knowledge, information, and belief.
At the hearing the defendant testified: "I am physically unable to do manual labor, on account of suffering from a hernia or rupture. I am very frail and delicate and only weigh 115 pounds. I am living in the house with my sister, Mrs. Mollie Ulm, and she is supporting me. I have not worked in several years, and I am not able to work at all. I am not earning anything at all, and have not for several years. I don't have a cent, and can't get it. I have tried to borrow money to pay this alimony, but I have no security to offer, and I can't borrow any. I don't own any property whatever, either real or personal, and have not owned any property for several years. I didn't intend any disrespect for the court in failing to pay the alimony, but my failure to pay is due wholly to my poyerty and inability to work." Cross-examination: "I didn't buy a horse at a public sale in Sandersville recently, but the man I was with did. I used to be a telegraph operator, but the railroad is `junked' now, and I can't get a job as telegraph operator. I have tried, but there are so many operators out of jobs that I can't get a job. If you think they are so easy to get, why don't you get me a job with the telegraph company so that I can pay this alimony? I am not able to work. I not only have a rupture, but I am suffering with low blood pressure. I did have some land about five years ago, but I owned so much that I deeded it to the person that I owed. I don't have any personal property at all — all of it was taken from me about four or five years ago under a mortgage foreclosure and sold before the court-house front door. I have a son that owns a little property, but he is twenty-three years of age and his own man. My sister has been paying alimony for me, but she has quit. She says she is having to support me, and that she is not paying any more alimony; that she has put all the money that she is going to in alimony. I stay around the house with her, but I can't work on account of my physical condition. I mean to say that I sit around the house all the time, and I don't work any on the farm; if I do anything at all it is running errands around the house. My son bought the Reese place in the last year or so, but I had nothing to do with his buying it. He paid very *384 little on it, if anything — he just took over a farm after Mr. Reese died, and agreed to pay the Federal Land Bank what Mr. Reese owned them. After my mother's death, I got a tract of land, not the tract next to Mrs. Sue Davis. When we separated I owned a house and lot in Matthews, Ga., and had already bought a tract of land near there, but owned some on the farm — never finished paying for it, so it went back. I bought a little land during the twenty years that we lived together, but I didn't suddenly lose it. I was broke when we separated, and just gave it up, as all of my personal property was taken from me and sold under a foreclosure; so I just deeded the land for what I owned."
The defendant introduced an affidavit of a physician, to the effect that on August 15, 1939, he examined the defendant and found his condition to be as follows: "Left inguinal hernia. Hypotension (mild degree). That the said Snider is wholly unable to do manual labor." The clerk of the superior court, as a witness for the defendant, testified that several years ago Mrs. Snider filed a suit against her husband and a sister, "in an effort to cancel some deeds that she alleged Mr. Snider had made in an effort to keep from paying alimony. Mrs. Snider was not able to cancel the deeds, and the deeds still stand." Mrs. Snider testified as follows: "It is strange that he can't pay any alimony. When we separated about five years ago he owned a house in Matthews, Ga., and a farm in Glascock Country — now he claims he has not got anything. I lived with him for twenty years and worked like a slave and didn't get anything when we quit, and now he won't pay the small amount that the jury ordered him to pay every month for the support of Katherine. Katherine is still with me, and I am supporting her. I have not released him from the payment of alimony — he is due the amounts that you have alleged to be due in the petition. The house in Matthews was a small house, but we lived in it. I hear that they have torn the house down now and moved it." Cross-examination: "What I am testifying about now, that is Mr. Snider's financial and physical condition, was his financial and physical condition at the time we separated about five years ago. I don't know anything about his physical and financial condition now. I don't know if he has low blood pressure or not, and I don't know whether he is able to work. I don't know what property he has now. I know that he had some property when we separated five *385 years ago, and I know that he could make us and did make us a living then. He made his sister a deed to the land, but I didn't file a suit and try to set the deeds aside and collect alimony." Redirect examination: "About a year after we were married, soon after our first baby was born, Mr. Snider bought a tract of land adjoining the home place, in Glascock County; later he bought a house and lot in Matthews; later, when Katherine was born, he bought a farm near Matthews in Jefferson County. Later, after his mother's death, in the division he got a tract of land adjoining his mother's home place. At the time we separated he owned two tracts of land in Glascock County and a house and lot and farm in Jefferson County. He did not owe anything on any of this property, except the farm in Jefferson County. Since our separation he sold the farm in Jefferson County; it was sold about four or five years ago to Mr. Pennington, and Mr. Snider swore in a former trial that he got $800. The deeds he made to his sister he claimed were made in March before we separated, but they were not put on record until the following November, just before the trial here for alimony, which Mr. Snider won, except support for the child. Mr. Snider was able to work before we separated five years ago, but was not so fond of it. He looks to be as able to work now as he was then. He looks now just like he did five years ago, except a little thinner in the face."
The judgment making the rule absolute recited that the evidence was substantially the same as that introduced on the previous trial for contempt (
Proof by a husband of his inability to comply with a judgment for alimony is of course a good defense to a rule for contempt.Newsome v. Newsome,
In reaching this conclusion, we do not deem it necessary to consider whether the evidence of the wife as to the financial
condition of the husband as it existed several years previously tended in any manner to rebut his contention as to present poverty; nor do we determine the effect of the judge's statement that "there is no material difference between the evidence adduced in the case above cited [
Judgment affirmed. All the Justices concur, except Duckworth,Justice, who dissents.