Webb v. Webb

Nov 15, 1903

Versions:140 Ala. 262

HARALSON, J.

Thе only question presented for review is, whether the court erred in refusing to commit the complainant for contempt for his failure to pay alimony to his wife, pending his suit against her for a divorce which, by the proper decree of the court, he had been ordered to pay.

It is not questioned, that the court, pending the suit for divorce, had the right, and it was its duty to exerсise it, to “make an allowance for the support of the wife out of the estate of the husband.”—Code, § 1495; Brindley v. Brindley, 121 Ala. 429.

*266A common method of enforcing orders ox4 decrees for alimony is by attachment for contempt; and when the husband has the means or estate out of which alimony ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍may be paid, and he willfully and contemptuously re-fusés to do so, no good reason exists why he mаy not be compelled to do so by attachment.

The attachment is designed to enforce' compliance with thе order, and not to punish for being unable to perform it.—Ormsby v. Ormsby, 1 Phila. Repts. 335. It was said in this case: “From this, (the duty in a proper case tо provide alimony to the wife pendente life), the husband cannot escape, unless he be destitute of all ability, in which case, if he bе the libellant, the court will not require him to pay, but will suspend the suit until provision is made for the wife.—6 ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Eng. Eq. Repts. 391; 3 Edwards, C. R. 194.” It was further said, the attaсhment “will not be issued, when the court is satisfied that the party is destitute of the means of making the required payments.”

In Pain v. Pain, 80 N. C., it Avas said: “But inability to comply with an order, unlike the commitment for costs, is an anSAver to a rule to enforce it, and Avlien made to appеar, discharges from its obligation.”

In Steller v. Steller, 25 Mich. 159, Cooley, J., for the court, said: “There must be in the case something wrong beyond the mere failurе to pay money; and the party, before he cau be convicted and punished for it, must have an opportunity to bе heard in his own explanation. * * * His inability to pay may be so- absolute, as to constitute an effectual excuse.” Again it was said by McCay, J., in Carlton v. Carlton, 44 Ga. 216: “It must be remembered, also, that the imprisonment by a judge for contempt, is always conditional, and is at his discretiоn, and may, at any time, by the same discretion, be ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍discharged. And very clearly, it ought never to be resorted to, except as a penal process, founded on the un-Ávillingness of the party to obey. The moment it appears there is inability, it would clearly be the duty of the judge, to discharge the party, since it is only the contempt, the disobedience upon which the pоwer rests.”

*267The principle seems to be' well formulated in note ÍX, with, citation of many authorities, in the case of Staples v. Staples, reported in 24 L. R. A. 433, in thé'following language: “Where the neglect or refusal is not from mere contumacy, but from the want of means, the result of misfortune not induced by any fraudulent conduct on the defendant’s part, the party1 will be compelled to adopt some other mode than imprisonment, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to enforce the decree consistent with the practice of the courts, either by execution or other final process; or by sequestration of the real or personal estate, or by the exerсise of such other powers as pertain to courts of’ chancery, and which may be necessary to the attainmеnt of justice.”

In the case in hand, the court found that at the time of said decree for alimony, afid at the time of the héarifig of the motion for commitment for contempt, the 'complainant was without means to pay the alimony except by earnings which he was capable of making should he make the proper effort to do so, and that he willfully refused to do it; but it hеld, that the court was without power to compel him to labor and earn an income .with which to satisfy said decree, аnd, therefore, could not adjudge him.guilty of contempt. We find no evidence in the transcript touching his ability to pay the deсree out of money, property or income, except that contained in his sworn return to the rule nisi. In that, he declаres he has no money or property with which to pay; that he has no employment, nor has he had since the rendition оf the said decree, out of which to earn the money to make the payment, and avers his readiness and willingness to pay said decree as soon as he may be able to procure the money. There seems to be no.dispute abоut complainant being unable to pay the decree out of money or property, and the-court so held. The only remaining insistence is, that he is able to work and will not work, ■to earn the money to make the payment, and the court ought to commit him for- default in this respect. It is difficult to understand how the desired result was thus to be accomplished, and how the court would go about it. If complainant would not labor, tbe court was with*268out power to inflict corporeal punishment to cоmpel him. If it imprisoned him until, he was willing to- work, that would not have produced money, meantime, but would have entailed expense for the imprisonment; and if imprisoned and he should relent and come in and signify his willingness to labor, employment would have to be obtained for him, by the court, by himself or some one else; and how the court would have proceeded legally ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to hire him оut, or supervise him, if he hired himself, and collect the money for application to its decree,- has not been madе to appear. In any effort in this direction it might undertake, the court would be careful not to violate the law against рeonage for the sake of earning money. Such an effort, if undertaken, might involve the court and its agents in trouble, into which wе would not knowingly induce or compel them.

Here, the alimony sought is temporary, the complainant had no money or рroperty which the court could reach and appropriate by any of its processes to that end, and the only other means at hand were to compel him to obtain employment, and labor and save money with which to satisfy the dеcree.

We are satisfied that the court did not err in the decree it rendered. Under it, the complainant cannot proceed with his suit for divorce, without complying with said decree.

Affirmed.