87 Wis. 592 | Wis. | 1894
The broad ground is taken by the appellant that the court has no power to enforce, by contempt proceedings, payment of permanent alimony ordered to be paid by a final judgment of divorce. His premises are: First. A judgment for alimony may be enforced by execution. Sec. 2367, R. S. Second. Contempt proceedings for the nonpayment of money are' only authorized where execution cannot be awarded. Subd. 3, sec. 3477, R. S. Hence,
Were tbe judgment here a judgment for a gross sum, payable at once, it might undoubtedly be docketed as a money judgment, and execution might issue to enforce it. Keyes v. Scanlan, 63 Wis. 345. In that case the argument would be strong that contempt proceedings could not be resorted to, and tbe position would not be without authority. Lansing v. Lansing, 4 Lans. 377. This decision, however, has been seriously questioned in New York. Strobridge v. Strobridge, 21 Hun, 288. But conceding the correctness of the doctrine, it cannot apply to the present case. Execution can be issued only on a judgment which has been docketed. R. S. secs. 2968, 2969. It does not appear in the present case that any judgment has been docketed for any of the instalments of alimony. In fact, there seems to be no provision of law for such docketing. A judgment is to be docketed at the time of filing the judgment roll. Sec. 2899, R. S. The remarks of the court in Park v. Park, 18 Hun, 466, upon this point, are quite pertinent. It is there said: “ It is not explained, however, in that case [referring to Lansing v. Lansing, supra], how a judgment for final alimony is to be docketed,— whether or not a new docket is to be made every time the annual or semi-annual alimony becomes payable. And as a judgment is made a lien only for ten years from the filing of the roll and docketing, it is not clear how, after ten years from the judgment, the amounts of the alimony are to be docketed so as to be a lien on land. And docketing is necessary before the issue of execution. Besides, after the lapse of five years from the entry of judgment, execution is to issue only by leave of the court, granted on notice. How this provision is to apply to alimony is not explained in that decision.” This reasoning was concurred in by the court of appeals in the same case. Park v. Park, 80 N. Y. 156.
It is true that the remedy is severe and harsh. Imprisonment certainly should not be ordered when it appears that the default is the result of honest inability to pay, on account of business misfortunes, or lack of health or earning ability, or other circumstances which are not the fault of defendant. But where' the inability is wilfully brought about by defendant himself, with intent to avoid payment, the refusal to pay becomes contumacious, and the inability so resulting will not purge the defendant of contempt. The present case seems clearly one of contumacious refusal to pay. It stands admitted that the defendant, in abusive language, has refused to pay, and declared his intention never to pay, any part of the judgment, notwithstanding he is a strong, able-bodied man and engaged in an occupation which must, in the natural course of things, bring him considerable returns. He has defied the order of the court, and, in effect, declared his intention to continue such defiance, whatever his financial condition may be. We think that in such a case imprisonment for contempt may be inflicted. The question of whether or not the act is contumacious is one which the trial court has far better opportunity to determine than this court. We regard the order of the trial court in this case as practically a decision that the act of the defendant is contumacious, and the record leads our minds to the same conclusion. It was argued that the imprisonment should be limited to six months, under R. S. sec. 3492. It is sufficient to say that the order is plainly made under sec. 3479, R. S., and that it is justified under the terms of that section.
By the Court.— Order affirmed.