Summary
affirming contempt finding where party failed to show “ conclusively or affirmatively that he was unable to comply” with the trial court's order
Summary of this case from Lion Antique Cars & Invs., Inc. v. TafelOpinion
22580.
SUBMITTED SEPTEMBER 14, 1964.
DECIDED SEPTEMBER 28, 1964.
Alimony; contempt. Johnson Superior Court. Before Judge Ward.
Joe W. Rowland, for plaintiff in error.
B. B. Hayes, contra.
The evidence of the father was insufficient to show that he could not comply with the former judgment for alimony. The judgment holding him in contempt for failure to pay the alimony award is not erroneous as contended.
SUBMITTED SEPTEMBER 14, 1964 — DECIDED SEPTEMBER 28, 1964.
Mrs. Jo Vickers sought an attachment for contempt against Edwin Vickers for failure to pay alimony for the support of herself and their four minor children. She alleged that on May 28, 1960, the amount of alimony was reduced by order of the court from $25 per week to $22.50; that the father is in arrears with his payments; and that he refuses to pay the alimony due. On the hearing the mother testified that since a previous hearing on May 13, 1961, the father should have paid $3,465, that he has paid $1,715, leaving a balance due of $1,750.
The father testified that: In addition to the payments testified to by the mother he has put three new tires on her car, and while she was confined in the hospital early in 1964 he made payments of $45 and $150 to the daughters of the parties. His oldest daughter is working and self-supporting. He operates a service station, which is his sole source of income. He owns no property, and since May 13, 1961, he has been wholly unable to pay the amount of $22.50 per week. He has paid all that he could "and still live and operate his business himself." A copy of his 1963 Federal income tax return (introduced in evidence) represents an accurate and complete record of his income for the year 1963. His income for 1961 and 1962 were approximately the same, and his income for 1964 is running less than for 1963.
The trial judge found the father delinquent in the sum of $1,521, and allowed a fee of $100 to counsel for the mother. He ordered the father to pay $821 instanter, the balance to be paid in 60 days, and in default of payment the father to be confined in the common jail. The exception is to this judgment.
The father in his response prayed that "the aforesaid payment be reduced to an amount commensurate with defendant's ability to pay." Until proceedings are instituted to modify the alimony award pursuant to the provisions of Ga. L. 1955, pp. 630-632, as amended by Ga. L. 1957. pp. 94-96 ( Code Ann. Supp. §§ 30-220-30-225), and a judgment decreasing the amount is duly entered, the original alimony decree is res judicata of the amount the father must pay for the support of his children. Roberts v. Mandeville, 217 Ga. 90, 92 ( 121 S.E.2d 150). The trial judge on a contempt proceeding has no discretion to modify the terms of a decree for divorce and alimony. Booker v. Booker, 219 Ga. 358, 360 ( 133 S.E.2d 353).
The father now relies primarily upon a copy of his 1963 Federal income tax return to show that he is unable to comply with the payments as fixed by an order of the court on May 28, 1960. The copy of the father's Federal income tax return shows that his net income for the year 1963 was $1,224. The return shows an inventory of $1,208.50 at the end of the year 1963. The father's testimony does not show the amount of his inventory at the time of the hearing on May 7, 1964. Neither the return, nor the father's testimony, shows the amount of his cash on hand or in the bank at the time of the hearing, nor what amount, if any, had been collected on the "bad debts" of $388.70 claimed as a credit on his return for 1963.
The father's testimony was wholly insufficient to show conclusively or affirmatively that he was unable to comply with the former judgment of the court. Shahan v. Shahan, 204 Ga. 342 ( 49 S.E.2d 822); Simmons v. Simmons, 208 Ga. 51 ( 64 S.E.2d 896); Dickens v. Dickens, 211 Ga. 796 ( 89 S.E.2d 161); Weiner v. Weiner, 219 Ga. 44 ( 131 S.E.2d 561). The judgment of the court holding him in contempt, therefore, will not be reversed by this court.
Judgment affirmed. All the Justices concur.