Brown v. Brown
Decision Date | 31 March 1928 |
Citation | 4 S.W.2d 345 |
Parties | BROWN v. BROWN. |
Court | Tennessee 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.
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:
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:
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:
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:
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