Blankenship v. Blankenship
| Decision Date | 15 September 1982 |
| Parties | Julius Dale BLANKENSHIP v. Peggy Ann BLANKENSHIP. Civ. 3326. |
| Court | Alabama Court of Civil Appeals |
George K. Elbrecht, Monroeville, for appellant.
Windell C. Owens, Monroeville, for appellee.
The Circuit Court of Monroe County found appellant-husband to be in contempt for failure to comply with the provisions of the divorce decree. The husband by writ of certiorari appeals to this court and we affirm.
The husband and wife were divorced on September 3, 1980. At that time an agreement was incorporated into the decree which stipulated that the husband would convey the home to the wife and make payments on the second mortgage on the home; that he would pay $600 per month in support and alimony plus $200 a month for each of the two then minor children.
The husband has made the alimony and support payments, but ceased making the mortgage payments. As a result, foreclosure proceedings were held on March 3, 1981, and the wife was informed it will require $40,100 to redeem the house from foreclosure.
The wife via contempt proceedings sought an order requiring the husband to pay the obligation or otherwise make arrangements to "save" the house.
After an ore tenus hearing, the trial court held the divorce decree's provision that the husband pay the second mortgage was "related to and was part of a provision for the sustenance, maintenance and support of the wife," and that the husband was in contempt for his failure to make adequate mortgage payments in accordance with the divorce decree. The order further provided that the husband could purge himself of contempt by paying $300 a month to the wife to be applied toward redeeming the home from foreclosure.
The husband appeals, contending the trial court's finding of contempt for his nonpayment on the mortgage according to the terms of the decree was error. Specifically, the husband contends he does not have the means to pay the required $300.
The dispositive issue on appeal is whether there was any evidence to support the trial court's determination that the husband had the means to make the required payment. We find there was such evidence and affirm.
We note at the onset that the court's contempt power is a common method of enforcing decrees for alimony and support. E.g., Thomas v. Thomas, 406 So.2d 939 (Ala.Civ.App.), cert. denied, 406 So.2d 943 (Ala.1981). And the scope of review in contempt cases does not extend to the weight and sufficiency of the evidence but only to the question of whether any evidence supports the trial court's decree. Thomas v. Thomas, supra.
As a threshold matter, the husband through able counsel argues that payment of the mortgage was payment on a debt, not payment for the maintenance and support of his ex-wife and children. He relies on Thompson v. Thompson, 282 Ala. 248, 210 So.2d 808 (1968), to support his contention that he cannot be held in contempt for failure to pay a "debt" as opposed to "alimony" since section 20 of the Alabama Constitution provides "no person shall be imprisoned for debt." In Thompson v. Thompson, supra, at 814, the supreme court held that the husband could not be held in contempt for his failure to comply with the divorce decree when payments were "solely to the payment of a debt as distinguished from payment for sustenance or support of his former wife." But the "debt" in the Thompson case was the wife's personal obligation incurred from a joint business venture and the payments were not made for necessities. Thompson v. Thompson, supra. The debt at issue in Thompson was clearly a business debt, and not domestic in nature.
In the instant case, the payment at issue is not a business debt, but more in the order of "sustenance and support." See Thompson v. Thompson, supra.
More on point is this court's holding in Thomas v. Thomas, supra. In Thomas, the husband was held in contempt when his failure to make the mortgage payments in accordance with the divorce decree...
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