Opinion
No. 32,316.
April 19, 1940.
Husband and wife — separate maintenance — enforcement of payments — contempt proceedings.
Under 2 Mason Minn. St. 1927, § 8604, the district court has power to punish as for contempt the wrongful refusal of a husband to pay an allowance ordered for the benefit of his wife in an action for separate maintenance.
Appeal by defendant from a judgment of the district court for Faribault county, Albert H. Enersen, Judge, adjudging defendant guilty of contempt for failure to make payments ordered for the separate maintenance of his wife. Affirmed.
Meighen, Knudson Sturtz, for appellant.
Frundt Morse, for respondent.
Appeal by defendant from a judgment that he was in contempt for failure to make the payments ordered in a suit for separate maintenance. The opinion on appeal in the latter suit (No. 32,315) is filed herewith. Sybilrud v. Sybilrud, 207 Minn. 371, 291 N.W. 606.
Unsound is the argument for defendant that under our statutes the district court has no authority to punish as for contempt the violation of an order directing the husband to make payments for the separate maintenance of his wife. We exclude from consideration 2 Mason Minn. St. 1927, § 9793(3), providing for the punishment as contempt of the "disobedience of any lawful judgment, order, or process of the court." It is declared by 2 Mason Minn. St. 1927, § 8604, that wrongful nonpayment of "alimony or other allowance" ordered for the benefit of wife or children may be punished as a contempt. That section came into our law as part of L. 1881, c. 78. We assume that its application was then limited, as indicated by the title of the act, to "Actions for Divorce." But thereafter and by the revision of 1905 (R. L. 1905, § 3593), it was reënacted as, and remains, part of our general statutory law concerning divorce. By L. 1931, c. 226, § 1 (3 Mason Minn. St. 1940 Supp. § 8588), our divorce law was amended to authorize an action for separate maintenance by the wife. Barich v. Barich. 201 Minn. 34, 275 N.W. 421. That amendment now being part of the general statute covering the whole field of divorce and separation, we see no reason why the declaration of § 8604, making wrongful refusal to pay "alimony or other allowance" ordered for the benefit of wife or children subject to punishment as for contempt, should not apply. We so hold.
There is additional argument for defendant that inability to pay, which would be a good defense if established, is shown by the record. For reasons indicated in the opinion in the main case (No. 32,315) filed herewith, Sybilrud v. Sybilrud, 207 Minn. 371, 291 N.W. 606, we cannot allow that argument.
Judgment affirmed.