Opinion
05-04-1901
FLOWER v. FLOWER.
A. H. Swackhamer, for complainant. J. Boyd Avis, for defendant.
On petition of Hannah Flower against George Flower, and order to show cause why defendant should not be attached for a contempt. Attachment denied.
A. H. Swackhamer, for complainant.
J. Boyd Avis, for defendant.
GREY, V. C. The petitioner, having an Order, modified on the 10th day of July, 1899, against her husband, the defendant directing that he pay her $3.50 per week for alimony, files her petition showing that the defendant has not obeyed that order. She alleges that she has had a fieri facias issued to make the money, and that the sheriff returned it nulla bona, but with a levy on real estate. She further states that the defendant has confessed a judgment to one Mary Turner, which has become a lien on the real estate, and that this judgment was fraudulently entered to defeat the petitioner of her alimony; that the defendant is profitably employed, and able to perform the court's decree out of his earnings. She therefore prays that he may be held for a contempt for disobedience of the court's order. An order to show cause was allowed. The defendant responds by affidavits denying that he is receiving any earnings, and stating that he is in bad physical condition, and has been refused employment. He admits that he owns the real estate referred to, but insists that the judgment of Mary Turner is in good faith, and to secure an honest debt, and that he is unable to obey the court's order. The affidavit of Mary Turner supports that of the defendant as to the bona fides of the judgment which she entered. In Aspinwall v. Aspinwall, 53 N. J. Eq. 686, 33 Atl. 470, there was an application similar to this for an attachment for contempt because of nonpayment of moneys decreed to be due on a marriage contract. The chancellor refused the order. The court of appeals unanimously affirmed his decree, declaring that in cases where no special equities exist the fifty-sixth and sixty-fourth sections of the chancery act had done away with the process of contempt as a method for enforcing decrees for the payment of moneys due upon contracts between the parties.
The petitioner contends that there are in this case special equities, arising from the defendant's contumacy in voluntarily confessing a fraudulent judgment to defeat the operation of this court's order. It is not necessary to determine whether the conduct alleged should give a right to hold for a contempt, for the petitioner has not exhausted the other remedies open to her to collect her money before seeking that mode of relief. The proofs show that the defendant is the owner of lands; that the petitioner has a levy upon them by fieri facias issued out of this court, but is embarrassed by what she alleges is a fraudulent judgment entered to defeat her claim. Nothing has been done to declare this judgment to be fraudulent, nor has any sale been made of the defendant's lands under the petitioner's levy, notwithstanding the fraudulent judgment. An attachment for contempt will not be allowed solely as a means to collect money when the petitioner has an unexhausted levy on lands, impeded only by a judgment which she alleges is fraudulent, when she has taken no steps either to set the alleged fraudulent judgment aside or to realize from the lands by a sale under her own levy despite the fraudulent lien, and recovery under an ejectment if possession is refused. The fraudulent character of a judgment cannot be tested on an order to show cause why an attachment should not be allowed for a contempt. The petitioner must exhaust her remedies by procedure in the proper forum in the orderly method required by the circumstances of her case. The order for an attachment is refused, but without costs.