87 So. 491 (Miss. 1921), 21673, Ramsay v. Ramsay

Docket Nº:21673
Citation:87 So. 491, 125 Miss. 185
Opinion Judge:SMITH, C. J.
Party Name:RAMSAY v. RAMSAY
Attorney:Robert L. Bullard, for appellant. Currie & Currie, for appellee.
Case Date:March 28, 1921
Court:Supreme Court of Mississippi
 
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Page 491

87 So. 491 (Miss. 1921)

125 Miss. 185

RAMSAY

v.

RAMSAY

No. 21673

Supreme Court of Mississippi

March 28, 1921

         1. APPEAL AND ERROR. Matters not affecting appellant's rights not considered.

         An assignment of error will not be considered, when the decision of the question it presents will have no effect upon the rights of the appellant.

         2. DIVORCE. Chancery court may allow such alimony as is equitable and just with regard to circumstances.

         The power of a chancery court to award alimony to a wife in a divorce proceeding is measured by section 1673, Code of 1906 section 1415, Hemingway's Code), and is to make such allowance therefor as may seem equitable and just, having regard to the circumstances of the parties and the nature of the case.

         3. DIVORCE. Alimony may be awarded wife, although husband without property.

         Alimony may be awarded the wife in a divorce proceeding, although the husband is without property and must support himself and pay the alimony out of his future earnings.

         DIVORCE. Financial situation of parties should be considered.

         When the husband is without property and must support himself out of his own earnings, and the wife is able to and does earn something by her own labor, that fact should be taken into consideration in determining what amount the husband should contribute to her support, unless the prospective earnings of the husband are sufficient in amount to make it equitable and just for him to bear the whole burden of the wife's support.

         5. DIVORCE. Husband's failure to pay alimony under decree primafacie evidence of contempt.

         The failure of the husband to comply with the decree providing for the payment of alimony is prima-facie evidence of contempt, to purge which the burden is upon him to prove his inability to pay.

         6. DIVORCE. Husband should not be committed, when he can pay alimony only of future earnings.

         A husband should not be committed to prison until he pays the [125 Miss. 186] arrears of alimony allowed to the wife, when he has no property and can pay the alimony only out of his future earnings.

         7. DIVORCE. Husband not in contempt for failure to obtain sureties, when he is unable to do so.

         Under section 1673., Code of 1906 (section 1415, Hemingway's Code), the court may, "if need be, require sureties for the payment of the sum so allowed" to the wife as alimony; but, when the giving of such sureties is ordered, the husband is not in contempt until he fails to obey the order, and not then if his failure to obey the order resulted solely from his inability to do so.

         8. DIVORCE. Court awarding alimony may fine husband for willful failure to pay.

         The court which rendered a decree awarding alimony to the wife may enter a fine against the husband for failure to pay the alimony, when the failure to pay was wilful.

         HON. D. M. WATKINS, Chancellor.

          APPEAL from chancery court of Forrest county, HON. D. M. WATKINS, Chancellor.

         Bill by Cannie H. Ramsay against N. K. Ramsay for divorce. Decree for plaintiff. From an order committing defendant to jail for failure to pay alimony, he appeals. Reversed and rendered.

          Reversed and remanded.

          Robert L. Bullard, for appellant.

         The court below erred in overruling appellant's motion to quash the information and citation; (2) It was error to fine the appellant fifty dollars; (3) It was error to commit appellant to jail for his failure to pay past due alimony, and for his failure to give security for it, and (4) It was error to decree against the appellant the payment of fifty dollars per month hereafter as permanent alimony.

         As the same legal principle underlies all three of the first assignments above stated, for brevity they will be discussed together, that legal principle is stated as follows: Before one may be imprisoned for his failure to comply with a degree for payment of, or security for, alimony, it [125 Miss. 187] must first appear that he was able to comply with the decree, and contemptuously refused to do so, when he had the means of complying.

         Authority in support of this is abundant and without conflict. I think, directly pertinent are the following: Hamblin v. Hamblin, 107 Miss. 113; Mills v. The State, 106 Miss. 131; Edminson v. Ramsay, 34 So. 455; Webb v. Webb, 37 So. 96; 13 Corpus Juris, 75, 76, 77.

         The defendant should be discharged if the evidence leaves it doubtful as to his present ability to comply with the order. Such being the law it is submitted that each act of the lower court was glaringly erroneous. In the first place it was error to refuse to quash the information and citation. 3 Am. & Eng. Ency. Law 79; 13 Corpus Juris, pages 64, 65, 66, 67, 68.

         But the evidence does not begin to show that it was ever humanly possible for him to have complied with the decree. Search the record and if one bit of evidence can be found tending to show that Ramsay had the means of complying with the decree, then let the case be affirmed and let him go back to jail. Appellee cannot point out any such evidence. It is like the history of aphidians in Erin, "There aint none."

         The fine of fifty dollars is something new under the sun. I cannot find law or precedent for it; no, nor any against it, for that matter, as it seems never to have been resorted to before. I therefore pass it on to this court as something new.

         (4) It is now submitted that it was error to decree the payment of fifty dollars or any sum, against appellant as permanent alimony. The whole question of alimony was before the court in this proceeding to be dealt with fully, and is therefore now before this court for review and correction, if the act of the lower court in decreeing alimony was erroneous.

         In some jurisdictions nothing but property owned by the husband is considered in the allowance of alimony. In others it is held that income from earnings may be considered[125 Miss. 188] . It seems to be an open question with this court, but our statute, section 1673, Code 1906, makes it the duty of the court to have regard to the circumstances of the parties. If this court adopts the reasoning of those which restrict consideration of the circumstances of the husband to his property nothing more is to be said. But can it be said that Ramsay has, or ever had, any income upon which any allowance could be based? For more than four years he was in the army. When he came out he had but ninety dollars and his personal effects. Since that time...

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