Bradshaw v. Bradshaw
Decision Date | 11 March 1939 |
Citation | 133 S.W.2d 617,23 Tenn.App. 359 |
Parties | BRADSHAW v. BRADSHAW. |
Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court December 8, 1939.
Appeal in Error from Circuit Court, Wilson County; O. K. Holladay Judge.
Contempt proceeding by Frances Hardy Bradshaw against Cloyd Bradshaw to enforce the payment of alimony. To review an adverse judgment defendant appeals in error.
Affirmed and remanded.
E. R Woolard, of Lebanon, for plaintiff in error Cloyd Bradshaw.
L. P McFarland, of Lebanon, for defendant in error Frances Hardy Bradshaw.
This is a contempt proceeding to enforce the payment of alimony.
Cloyd Bradshaw has appealed to this Court from a judgment of the Circuit Court of Wilson County adjudging him in contempt of court and imposing a fine of $25 and committing him to jail for ten days for refusing to pay alimony decreed by the court in granting Frances Hardy Bradshaw a divorce a mensa et thoro.
It appears from the record that Frances Hardy Bradshaw filed a petition in said court, in 1937, seeking divorce from Cloyd Bradshaw and alimony on the grounds of abandonment and failure and refusal to provide for her; that the defendant answered the petition and alleged that he was drunk when they were married and did not know what he was doing, and that he lived with the petitioner ten days, and then abandoned her; that the case was tried by the judge without a jury and he granted the plaintiff a divorce from bed and board, on September 30, 1937, and directed the defendant to pay $11 a week alimony, beginning on October 9, 1937; and the cause was "retained in the court for further orders, with leave to either party to apply to the court for such modifications of this decree as justice may require"; that the defendant prayed for and was granted an appeal to the Court of Appeals but did not file assignments of errors and brief, and the Court of Appeals affirmed the judgment of the Circuit Court on February 23, 1938.
On March 9, 1938, Frances Hardy Bradshaw filed a petition in the Circuit Court of Wilson County charging that the defendant, Cloyd Bradshaw, had wilfully disobeyed the decree of the court and had failed and refused to pay the alimony ordered by the court, and was thereby guilty of contempt. Petitioner prayed for an attachment for the body of defendant, which was ordered and issued and served.
The defendant filed a sworn answer disavowing any intention to insult the court, and alleging that he was totally unable to pay any part of said alimony.
He filed a petition asking the court to reduce the amount of the weekly payments.
On the hearing the trial judge found that he showed no sufficient cause or excuse for not performing the said decree, or making some effort to perform the same or any part thereof, and he adjudged that said defendant was in contempt of court and ordered that he pay a fine of $25 and be committed to jail for ten days. It was further ordered that he comply with the decree of the court of September 30, 1937, by paying into the hands of the Clerk the sum of $11 per week, as alimony, from and after October 9, 1937.
On motion of the plaintiff to strike the defendant's petition for reduction of the amount of alimony, the court held that the defendant being in contempt could not be heard upon said petition, and the same was stricken.
The defendant filed a motion for a new trial, which was overruled by the court, to which action he excepted, and appealed to this court.
The attorney for the defendant, Cloyd Bradshaw, presented to the trial judge what purported to be a copy of the transcript in the original divorce case, and asked to have the same read in evidence and made a part of the record in this case. The judge refused, as the copy was not properly authenticated, the Clerk having refused to certify the same. The defendant excepted.
The appellant has assigned errors in this court, which are, in substance, as follows:
(1) There is no evidence to support the decree of the court.
(2) The court erred in sustaining the motion to strike the defendant's petition for reduction of alimony.
(3) The court erred in refusing to permit the defendant to read in evidence and to file as a part of the transcript what purported to be a copy of the bill of exceptions in the original divorce suit.
His whole defense is that he is unable to pay the alimony decreed. But his own evidence shows that he could have paid alimony in some amount during the whole period since the divorce decree. At the time the court fixed the alimony, in September, 1937, effective October 9, 1937, he was earning $32.80 per week. His earnings were reduced on November 3rd to $24.40, and on November 10th to $19.52. He was laid off from work in January, 1938, but from that time until the contempt hearing he had collected unemployment insurance in the sum of $15 per week.
He contends that he had to support his two sisters, who are grown and able-bodied, and his father, who is employed, and that he had to keep an automobile in order to ride to his job.
It may be conceded that he was not at all times able to pay the whole of the weekly allowance. In that case he should have applied to the court for a reduction in the amount. The order was subject to be modified at any time, and doubtless would have been. Instead of doing so, he absolutely disregarded the order of the court, and made no attempt to pay anything. He is therefore guilty of contempt.
While it is the general rule that where a man is actually unable to pay the alimony decreed he cannot be held to be guilty of contempt of court (1 R.C.L. 962, sec. 105; 2 Schouler on Marriage, Divorce, etc., sec. 1845; Going v. Going, 148 Tenn. 522, 554, 256 S.W. 890, 31 A.L.R. 633), and that the court cannot compel a man to work (1 R.C.L. 962, sec. 105; Messervy v. Messervy, 85 S.C. 189, 67 S.E. 130, 30 L. R.A., N.S., 1001, 137 Am.St. Rep. 873, 884), yet a man cannot refuse to pay alimony at the time that he is employed and receiving wages, and then when he has spent the money and lost his job plead that he is unable to pay it. Deen v. Bloomer, 191 Ill. 416, 61 N.E. 131; Clark v. Clark, 152 Tenn. 431, 278 S.W. 65; Brown v. Brown, 156 Tenn. 619, 4 S.W.2d 345.
"Where an alleged contemner, however, has voluntarily and contumaciously brought on himself disability to obey an order or decree, he cannot avail himself of a plea of inability to obey as a defense to a charge of contempt." 12 Am.Jur. 439, sec. 73; Clark v. Clark, 152 Tenn. 431, 278 S.W. 65; Brown v. Brown, 156 Tenn. 619, 4 S.W.2d 345.
1 R.C.L. 961, sec. 104; 17 Am.Jur. 509, sec. 670: Going v. Going, 148 Tenn. 522, 256 S.W. 890, 31 A.L.R. 633.
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