Aрpellant, who is a physician, filed a suit against his wife, Elizabeth C. Nichol, for divorcе in the circuit court for Hood River county. While the suit was pending, the defendant thеrein applied to the court for an allowance for support for herself and minor child pendente lite. Upon a hearing, where all the parties were represented, the court made an order requiring plaintiff therеin to pay to the clerk of the court for the support of the defendаnt therein, and her minor child, the sum of $200 per month, the *236 first payment to be made Februаry 1, 1932, and a like sum to be paid tbe first of each and every month during the pendency of the cause. Appellant made the first payment and failed and refusеd to make any further payments.
On the 1st of May, there was due under said order, the рayments for the months of March, April and May with the exception of a pаyment of $25.
On the 4th of May, 1932, the State of Oregon, on the relation of the said Elizabеth C. Nichol as plaintiff, presented to the court the above facts by affidаvit and alleged willful refusal of the appellant to comply with the said ordеr of the court. On her affidavit, the court made an order for appellant to appear and show cause why he should not be adjudged in contemрt of court. Upon service of the order and in due time, the appellаnt filed a counter-motion, supported by affidavit in which he asked the court to reduce the monthly payments to $75.
In his affidavit, he deposes to the effeсt that he is unable to comply with the order of the court; that his net income for the months of January, February, March, April and May, was only $742 and that he had various оther outstanding bills; that the respondent squandered and wasted what money he had paid her. He further deposes, “That on April 29, 1932, a decree of divorce was issued to me by the Mexican court in the state of Chihuahua, city of Juarez of which plaintiff and her attorney had knowledge”. He further deposes to the difficultiеs he met with in making collections. The effect of the affidavit as a whole was that the appellant was unable to comply with the order of the court.
A hearing was duly had and testimony taken on behalf of relator as well as on thе part of appellant, *237 after which the court made an order adjudging appellant in contempt and remanding him to the custody of the sheriff, until he should рurge himself of the contempt by payment of the sum provided in the order, from which order this appeal is taken.
We fully agree with learned counsel for аppellant that inability to pay is a complete defense to cоntempt proceedings for failure to comply with an order of the conrt to pay money, unless such inability is brought on by defendant’s own contumacious cоnduct.
Newhouse v. Newhouse,
The only question presented by the pleadings and the evidence is the ability of appellant to comply with the order of the court.
The appellant showed lack of good faith in complying with the order by his attempted evasion of the court’s order in his effort to get a bootleg divorce in Mexico. In his affidavit for a modification of the order, he asked that the amount оf his payments be reduced to $75 per month; yet, he did not pay even that amоunt during the months in which he was in arrears. He made no effort to comply with the cоurt’s order, or to apply to the court for a modification thereof until hе was forced into court by these proceedings. The evidence and the circumstances do not convince us of his inability to comply with the order of the court.
The decree of the circuit court should be affirmed.
The appellant having put up a stay-bond, it is further ordered that judgment be entered against the sureties for the sum of $575, the amount of the payment fоr which appellant was adjudged in contempt. Neither party is to recover costs in this court.
It is so ordered.