Opinion
Opinion filed May 21, 1954.
DIVORCE.
Where divorced husband's default in payment of alimony resulted in attachment for contempt for failing and refusing to comply with divorce decree, and chancellor adjudged defendant in contempt and committed him to jail there to remain until he convinced court that he wanted to comply with court orders or until he paid clerk and master monthly payments due and payable under the order, divorced husband was in jail for civil contempt and had not been adjudged guilty of any criminal act, and, therefore, Court of Appeals, rather than the Supreme Court, would have jurisdiction of his appeal from chancellor's order.
FROM HENRY.AARON BROWN, of Paris, for appellant.
HUGH K. McLEAN of Paris, for appellee.
Proceeding upon attachment for contempt for divorced husband's failure and refusal to comply with divorce decree provision pertaining to payment of alimony. The Chancery Court, Henry County, WAYNE A. COX, Chancellor, adjudged divorced husband in contempt and committed him to jail there to remain until he convinced court that he wanted to comply with court orders or until he paid, into hands of clerk and master, the monthly payments due and payable under the order, and divorced husband appealed. The Supreme Court, NEIL, Chief Justice, held that divorced husband was in jail for civil contempt and had not been adjudged guilty of any criminal act, and, therefore, Court of Appeals, rather than the Supreme Court, would have the jurisdiction of his appeal from Chancellor's order.
Appeal transferred to the Court of Appeals.
This case originated as a bill for a limited divorce by Mrs. Virginia Mae Hamilton against her husband. It was later amended by leave of the Chancellor in which complainant sought an absolute divorce. There was an award at first of alimony pendente lite in the sum of $75 per month. When the cause was finally heard and an absolute divorce granted, there was allowed a fixed sum as permanent alimony.
The defendant finally was in default in the payment of alimony, resulting in an attachment for contempt for failing and refusing to comply with the court's decree. The answer to this citation contained many reasons for his failure to make the payments required by the decree. The Chancellor, after hearing proof upon the issues, adjudged the defendant in contempt and committed him to jail "there to remain until he convinces the Court that he wants to comply with the Orders of the Court or until he pay into the hands of the Clerk and Master the monthly payments due and payable under said order". A mittimus was issued.
An appeal was prayed and granted to this Court upon the theory that the defendant was guilty of a criminal offense. The defendant, however, is in jail for a civil contempt; he has not been adjudged guilty of any criminal act. In these circumstances the Court of Appeals has jurisdiction of this appeal and it is accordingly transferred to that court for consideration of the assignments of error.