Brown v. Brown

• Decision Date: 01 December 1903
• Citation: 97 N.W. 396,135 Mich. 141
• Court: Michigan Supreme Court
• Parties: BROWN v. BROWN.

97 N.W. 396

135 Mich. 141

BROWN v. BROWN.

Supreme Court of Michigan

December 1, 1903

Certiorari to Circuit Court, Macomb County; James G. Tucker, Judge.

Suit for divorce by Lucy M. Brown against Calvin S. Brown, in which a decree was rendered for complainant providing for payment by defendant of an allowance for the maintenance of the infant child of the parties. On certiorari to review an order of the circuit judge in habeas corpus proceedings releasing defendant from imprisonment for contempt for refusal to pay allowances under the decree. Reversed.

Jno. E. Nolan (Wm. G. Gage, of counsel), for appellant.

Silas B. Spier and Robert F. Eldredge, for appellee.

HOOKER C.J.

A decree of divorce was granted to the complainant, Lucy M Brown, containing the provision that the defendant, Calvin S Brown, pay to her, for the support and maintenance of their infant child, whose custody was by said decree given to her the sum of $6 per month from the time of the enrollment of the decree to April 18, 1901, and $8 per month thereafter to April 18, 1905. The defendant has not paid any portion of the sum so allowed to the complainant. On November 4, 1902, she caused to be served upon the defendant a certified copy of the decree, together with a written demand upon him to pay to her the money due under said decree for the support and maintenance of said child, Earl W. Brown. Said demand not having been complied with, she filed a petition for an attachment to enforce compliance with the decree. Upon return of an order to show cause a hearing was had, and the defendant was adjudged guilty of contempt in failing to pay in accordance with the decree, and it was ordered that he be committed to the county jail, and there confined until he should pay the money due, and on January 26, 1903, a precept was issued, and he was taken into custody. On January 31st, a writ of habeas corpus was allowed by the circuit judge of St Clair county, and a hearing was had on February 7th, at which time a motion to quash the writ was made. This was before Judge Law, sitting at Mt. Clemens, and it was understood that Judge Tucker, who sat with him, should act with him in the determination of the case. Subsequently Judge Law notified counsel that he considered that the matter was one to be determined by Judge Tucker, the resident judge of the circuit, and on March 31, 1903, Judge Tucker made an order releasing the defendant from custody. The cause was brought to this court by writ of certiorari. The important question in the case is whether the decree for payment of money for the support and maintenance of the infant may be lawfully enforced through imprisonment for contempt, and this must depend upon Act No. 230, p. 360, of the Public Acts of 1899, which is amendatory to Comp. Laws, � 10,891. Subdivision 3 of section 10,891 is as follows: 'Parties to suits, attorneys, counsellors, solicitors, and all other persons, for the non-payment of any sum of money ordered by such court to be paid, in cases where by law execution cannot be awarded for the collection of such sum; and for any other disobedience to any lawful order, decree or process of such court.' Under this statute it was held that contempt proceedings were not permissible as a means of enforcing a final decree for alimony, inasmuch as execution could be lawfully obtained to enforce it. See Comp. Laws, � 8641; Haines v. Haines, 35 Mich. 138; North v. North, 39 Mich. 67; Swarthout v. Lucas, 102 Mich. 494, 60 N.W. 973. In 1899 subdivision 3 of section 10,891 was amended to read as follows: 'Parties to suits, attorneys, counsellors, solicitors, and all other persons, for the non-payment of any sum of money, ordered by such court to be paid, in cases where by law execution cannot be awarded for the collection of such sum; the disobedience of (or) refusal to comply with any order of such court for the payment of alimony, either permanent or temporary, made in any suit for divorce; and any other diobedience to any lawful order, decree or process of such court.' If this provision in the decree can be called a provision for alimony, or if the case falls within the last clause--i. e., 'any other disobedience to any lawful order, decree or process of such court'--the procedure in the case was lawful, and the defendant should not have been discharged. The gist of petitioner's contention is that an order providing for the maintenance of children does not fall within the term 'alimony.' The common-law definition given by law writers of the term 'alimony,' is perhaps not broad enough to include suit money or provision for infant children of the parties to a divorce. See 1 Bish. on Mar. and Div. �� 1385, 1386; 2 Bish. on Mar. and Div. � 829 et seq.; 1 A. & E. Ency. of Law (2d Ed.) 92 et seq.; Taylor v. Taylor, 93 N.C. 418, 53 Am. Rep. 460. These authors state, however, that some of the statutes and decisions give a broader meaning to the terms. 2 Bish. Mar. and Div. and Sep. �� 829, 835, 907, 1020, 1213; 1 A. & E. Ency. of Law, p. 92; 9 A. & E. Ency. of Law, pp. 862, 863; Whieldon v. Whieldon, 2 Swab. & T. 388; Richmond v. Richmond, 2 N. J. Eq. 90. Our statutes bearing upon this subject are as follows:

'(8638) Sec. 23. Upon every divorce from the bonds of matrimony for any cause except that of adultery committed by the wife, and also upon every divorce from bed and board for any cause, if the estate and effects awarded to the wife shall be insufficient for the suitable support and maintenance of herself and such children of the

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