Summary
In Redding v. Redding, 167 Miss. 780, 150 So. 776, the Court said: "In a case of this character, if he became unable in fact to comply with an alimony decree, the party should with reasonable promptitude make that fact known to the court by a proper petition, and have the alimony decree modified or suspended, and not wait until he has been cited for contempt.
Summary of this case from Sappington v. SappingtonOpinion
No. 30811.
November 13, 1933.
DIVORCE.
One waiting until cited for contempt for failure to pay alimony to plead physical inability in defense of charge had burden to prove clear case of disability, raising mere doubt being insufficient.
APPEAL from Chancery Court of Newton County.
J.D. Carr and J.M. Carr, both of Newton, for appellant.
The evidence shows that appellant was receiving from the government the sum of twelve dollars per month because of injuries received in the service of the United States, and it is conclusively shown that this compensation is all that he had or could get with which to support himself. The evidence in this case shows that appellant's condition grew worse all the time, and it shows without dispute that during the time in question he was unable to get employment and unable to perform labor, such as he knew how to perform.
The appellant has a right to pay his necessary living expenses out of his earnings before paying anything on the decree awarding alimony to appellee.
Ramsay v. Ramsay, 87 So. 491.
W.M. Everett, of Hickory, for appellee.
The appellant has a right to pay his necessary living expenses out of his earnings before paying anything on the decree awarding alimony to appellee, but he must live economically, and whenever he has any money not required for his living expenses, it is his duty to pay it on the decree. And any failure so to do will be a contempt of court punishable as such.
Ramsay v. Ramsay, 87 So. 491.
We submit that under the authority laid down in 94 Miss. 598, 48 So. 186, general debtors of the husband could not be held in contempt, for failure to pay debts owing the judgment debtor, but this being a civil judgment against the appellant, he is properly held in contempt by the ruling of the court.
When in a proceeding against a husband for contempt in failure to comply with an order requiring payment of alimony pendente lite, he defended on the ground that he was unable to comply with the order, and the judgment against him recited that the chancellor was fully advised as to the matters and things pertaining to the proceeding and being so advised determined that defendant was in contempt. It necessarily found that he was able to comply with the decree.
Hamblin v. Hamblin, 107 Miss. 113, 65 So. 113; Miles v. State, 106 Miss. 131, 63 So. 344.
The issue was whether appellant should be adjudged in contempt for the failure to pay five dollars per month alimony previously adjudged against him; and his principal contention was that he was physically unable to work, and, being without property, could not comply with the decree. In this case, as in most of such cases, the chancellor occupied an advantageous position because he had the appellant before him, and could, to an extent, judge of his physical condition by sight.
In a case of this character, if he became unable in fact to comply with an alimony decree, the party should with reasonable promptitude make that fact known to the court by a proper petition, and have the alimony decree modified or suspended, and not wait until he has been cited for contempt. This comports with good order, and is less expensive than to await the citation for contempt and then defend the charge thereby made. And, if he do not take the seasonable course first mentioned, he will, in response to the citation for contempt, be required to make out a clear case of inability — merely to raise doubts about it is not sufficient — this for the reason, among others, that chancellors who have been long on the bench learn that decrees for alimony are notably productive of pretenses of poor health and inability to work, and on citations for contempt they are authorized to scrutinize such excuses in the light of that judicial experience.
We are not able to say on this record that the chancellor was manifestly wrong in holding that appellant had not met the required burden in this case.
Affirmed.