Staples v. Staples
58 N.W. 1036
Wis.
1894
Check Treatment
Winslow, J.

Thе broad ground is taken by the appellant that the court has no power tо enforce, by contempt proceedings, payment of permanеnt 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. Contеmpt proceedings for the nonpayment of money are' only authorized where execution cannot be awarded. Subd. 3, sec. 3477, R. S. Hence, *595in the present case, tbe judgment for alimony being capable of ‍‌‌‌​‌​​‌​​​​‌‌‌‌‌​‌​‌‌‌‌​​‌​​​‌‌‌​‌‌​‌‌​​‌​‌​‌​‌‍enforcemеnt by execution, contempt proceedings will not lie.

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 beеn ‍‌‌‌​‌​​‌​​​​‌‌‌‌‌​‌​‌‌‌‌​​‌​​​‌‌‌​‌‌​‌‌​​‌​‌​‌​‌‍seriously questioned in New York. Strobridge v. Strobridge, 21 Hun, 288. But conceding the correctness of the doсtrine, it cannot apply to the present case. Execution can bе issued only on a judgment which has been docketed. R. S. secs. 2968, 2969. It does not apрear in the present case that any judgment has been docketed for аny 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. Seс. 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-аnnual alimony becomes payable. And as a judgment is made a lien only for tеn years from the filing of the roll and docketing, it is not clear how, after ten yeаrs from the judgment, the amounts of the alimony are to be docketed so as tо 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 provisiоn 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.

*596Our conclusion is that contempt proceedings will lie to compel payment of instalments of alimony ordered to be paid in the future by a final judgment of divorcе.

It is true that the remedy is severe and harsh. Imprisonment certainly should not be ordеred when it appears that the default is the result of honest inability to pay, оn 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 аbout by defendant himself, with intent to avoid payment, the refusal to pay becоmes contumacious, and the inability so resulting will not purge the defendant of contempt. The present case seems clearly one of contumaсious refusal to pay. It stands admitted that the defendant, in abusive language, has rеfused 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 оrder 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 casе 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 opрortunity 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 сontumacious, 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.

Newman, J., took no part.