Brown v. Brown

Decision Date31 March 1928
Citation4 S.W.2d 345
PartiesBROWN v. BROWN.
CourtTennessee Supreme Court

Appeal from Circuit Court, Davidson County; A. B. Neil, Judge.

Petition by Martha Rowland Brown against John C. Brown for an injunction and attachment of the person of defendant for contempt in failing to pay alimony. From a judgment sustaining demurrer and dismissing petition, petitioner appeals. Reversed and remanded.

See, also, 296 S. W. 356.

J. M. Peebles, of Nashville, for appellant.

M. S. Ross and O. W. Hughes, both of Nashville, for appellee.

SWIGGART, J.

The petitioner, Martha Rowland Brown, filed her petition on August 20, 1927, in the circuit court of Davidson county, averring a final judgment upon her previous application for divorce, and a judgment of April 4, 1927, awarding alimony in the sum of $32,800.

The petition averred that the defendant, John C. Brown, had in his hands at least $8,000, the proceeds of a tract of land which he had sold after representing to the petitioner that he would apply the proceeds on said judgment for alimony; that the defendant had fraudulently disposed of a personal estate of at least $40,000, in order to prevent the petitioner from enforcing the payment of said judgment; that he has hampered, hindered, and harassed petitioner in the collection of said judgment and is attempting, through chicanery, deceit, and other devices, to defeat its collection.

The petition further avers that, unless restrained, the defendant will dispose of the proceeds of the sale of said tract of land, and prays for a writ of injunction and an attachment of the person of the defendant.

It was further disclosed by averments of the petition that the amount of said judgment for alimony was the result of a settlement agreed upon between petitioner and defendant.

The petition contains certain other averments with reference to a preliminary injunction issued during the pendency of the action for divorce, which it is not necessary to further consider on this appeal.

The case was heard in the circuit court upon the demurrer of the defendant, which was sustained. The petition was treated by counsel and by the circuit court as seeking the punishment of the defendant as in contempt of court for willful failure to comply with the judgment or decree awarding alimony. The demurrer having been sustained, the petition was dismissed, and the petitioner has appealed.

The petition sufficiently avers the ability of the defendant to satisfy the judgment for alimony, at least in part, and his willful failure and refusal to do so. The petition was dismissed upon the holding of the circuit court that the judgment for alimony was a money judgment, for a failure to comply with which the defendant could not be put in contempt of court, under the authority of Going v. Going, 148 Tenn. 559, 256 S. W. 890, 31 A. L. R. 633.

The power of a court, granting a divorce, to award alimony to the wife, and to enforce such award, is regulated by statute (Code of 1858, §§ 2468-2470; Shannon's Code [all editions] §§ 4221-4223) as follows:

"Whether the marriage be dissolved absolutely, or a perpetual or temporary separation be decreed, the court may make an order and decree for the suitable support and maintenance of the complainant and her children, or any of them, by the husband, or out of his property, according to the nature of the case and the circumstances of the parties."

"And, in such case, the court may decree to the wife such part of the husband's real and personal estate as it may think proper. In doing which, the court may have reference to the property which the husband received by his wife at the time of the marriage, or afterwards, as well as to the separate property secured to her by marriage contract or otherwise."

"The court may enforce its orders and decrees by sequestering the rents and profits of the real estate of the husband, if he has any, and his personal estate and choses in action, and by appointing a receiver thereof, and from time to time causing the same to be applied to the use of the complainant and her children, or by such other lawful ways and means as are usual and according to the course and practice of the court, as to the court shall seem meet and agreeable to equity and good conscience."

In Clark v. Clark, 152 Tenn. 431, 278 S. W. 65, this court definitely held that a divorced wife may properly seek the aid of the court in the enforcement of a judgment for alimony, through contempt proceedings, when it is made to appear that the refusal of the divorced husband to comply with the judgment or decree amounts to willful disobedience or obstinacy. In that case the court said:

"It has been announced that the process for contempt, although not frequently resorted to, is a proper and salutary mode of proceeding where the exigency of the case requires it, being one of the established modes of enforcing decrees of courts of equity, and a practice to which the superior court should conform in cases where the defendant's disobedience of the decree is palpable, willful and inexcusable, and constitutes, beyond doubt, contempt. Lyon v. Lyon , supra.

"The rule is based upon the ground that the refusal is willful disobedience, and where a party is guilty of willful disobedience, or obstinacy to an order of the court or judge, the court or judge is empowered to punish for contempt and sentence him to imprisonment until the specified sum and costs are paid."

The judgment sought to be enforced in Clark v. Clark, supra, provided for the payment of $10 per month, following the granting of an absolute divorce. No time limit was placed upon the required payments, but the judgment had provided that the case should be retained in court for the making of such further orders as the court might deem proper.

The case of Clark v. Clark was differentiated by the court from the previous case of Going v. Going, supra, by the fact that in the latter case the trial court had not retained jurisdiction of the case after making the award of alimony, and had lost its power and jurisdiction to modify the order so as to meet the changed conditions existing at the time of the defendant's refusal to continue the periodical payments.

The two cases commit the court to the rule, clearly supported by the majority of authorities elsewhere, "that alimony is not a debt within the meaning of statutes or constitutional provisions which prohibit imprisonment for debt."

This rule is founded upon the same principle which supports the power of the state to imprison a delinquent husband, upon default in the payment of stated amounts exacted by order of court in proceedings brought for failure to support his wife; defined by this court in State v. Latham, 136 Tenn. 30, 34, 188 S. W. 534, 535, as follows:

"The obligation of the husband in that regard [the support of his wife] does not arise out of contract, expressed or implied, so as to have the status of a debt within the meaning of the Constitution. The overwhelming weight of authority is to the effect that the word `debt' used in the constitutional provision covers only such obligations as arise between debtor and creditor, by express contract or by the law's implication. Adams v. Adams, 80 N. J. Eq. 175, 83 A. 190, Ann. Cas. 1913E, 1083; Ex parte Davis, 101 Tex. 607, 111 S. W. 394, 17 L. R. A. (N. S.) 1140, and note, and authorities cited in annotations of the cases of Carr v. State, 106 Ala. 35, 17 So. 350, 34 L. R. A. 634, 636, 54 Am. St. Rep. 17, and State v. Prudential Coal Co., 130 Tenn. 275, 170 S. W. 56, L. R. A. 1915B, 646.

"It has been specifically ruled that an imprisonment imposed on a husband for his failure to support his wife is not imprisonment for debt. The Supreme Court of South Carolina, in State v. English, 101 S. C. 304, 85 S. E. 721, L. R. A. 1915F, 977, said:

"`The penalty for the breach of the command is imprisonment. But that is not for any `debt' due by the husband to the wife; it is for the husband's failure to obey society's law, made for society's subsistence.'"

We have not been able to find any authority which makes any distinction in this regard between alimony payable at stated periods for a fixed or indefinite period and a judgment for alimony payable in gross at the time judgment is rendered, and for which execution may issue.

Upon the granting of an absolute divorce, the general rule in this state is to award alimony in gross; and the authority of the court to award the wife a monthly or yearly allowance, payable by the husband after divorce, has been recognized only in recent years. Winslow v. Winslow, 133 Tenn. 663, 182 S. W. 241, Ann. Cas. 1917A, 245; Williams v. Williams, 146 Tenn. 38, 236 S. W. 938. Such monthly or yearly allowance is awarded, under our practice, only when the husband has no estate, but has an earning capacity.

The substantive right of the wife to alimony, upon obtaining a divorce from her husband, is regulated by statute, and in Williams v. Williams, supra, is stated as follows:

"Stated generally, the rule is: Upon an absolute divorce obtained by the wife she is entitled to a fair portion of the husband's estate for her suitable support, the amount to be determined according to the circumstances of the parties and the facts of the particular case. The most important element, therefore, is the extent or value of the husband's estate. Where the husband has no estate, but an earning capacity, the wife's support may be provided...

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14 cases
  • Rose v. Rose
    • United States
    • U.S. Supreme Court
    • May 18, 1987
    ...from the State's constitutional bar on imprisonment for debt in civil cases, see Tenn. Const., Art. I, § 18; Brown v. Brown, 156 Tenn. 619, 625-626, 4 S.W.2d 345, 346-347 (1928), permitting imprisonment to be imposed for default. See Tenn.Code. Ann. § 36-5-104 * * * In sum, with respect to ......
  • Doty v. Doty
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    ...as no more than the evidence upon which the court will fix the amount. Perry v. Perry, 183 Tenn. 362, 192 S.W.2d 830; Brown v. Brown, 156 Tenn. 619, 4 S.W.2d 345; Osborne v. Osborne, 29 Tenn.App. 463, 197 S.W.2d 234. The agreement becomes merged in the decree and loses its contractual But i......
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    • February 25, 1959
    ...answer the purpose, but has an earning capacity, a monthly allowance to be paid by him by way of alimony, is authorized. Brown v. Brown, 156 Tenn. 619, 4 S.W.2d 345; Buchholtz v. Buchholtz, 175 Tenn. 87, 132 S.W.2d [46 TENNAPP 44] 'Those cases in which an award in solido of from one-third t......
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