Davis v. Davis
| Citation | 74 S.E. 830,138 Ga. 8 |
| Parties | DAVIS v. DAVIS. |
| Decision Date | 09 April 1912 |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
Attachments for contempt are either civil or criminal, or both.
(a) In the former, the attachment, being remedial, is merely to compel obedience to an order requiring the payment of money or to do some act for the benefit of a party litigant, and where the party ordered fails to comply, not out of disrespect to the court, but for other causes within or without his control.
(b) In the latter, the attachment is for disrespectful or contumacious conduct towards the court, and is punitive.
(c) Where a party litigant to an application filed by his wife against him for alimony is ordered by the court to pay a certain amount to his wife as temporary alimony, and he fails to pay the amount so ordered to be paid, and on a rule nisi to show cause before the judge why he should not be attached for contempt, and the failure to pay as set out by the respondent's answer tended to show that it was not caused by disrespect to the court, but solely because he could neither borrow the money, mortgage or sell enough of his property to raise the amount, although he had endeavored to do so, and had requested libelant's attorney to have the sheriff to levy on a sufficiency of his property to make the amount ordered to be paid, which was done, and the sum so paid was more than sufficient to pay the present demands, and also for several future payments, and this was done before the rule was made absolute, held, that the court erred in ordering the respondent to jail for an indefinite period for contempt.
(d) It is error for the court to order a certain sum to be paid by a respondent for temporary alimony and other sums to be paid at future intervals, and provide that, if the future payments were not made at the time specified, then the sheriff might remand the respondent to jail until the same were paid; no provision being made in the order for a hearing by the respondent before being adjudged in contempt and committed to jail.
Where a rule nisi is served upon one ordered, but who failed, to pay temporary alimony, and who alleges that he intended no contempt of the court, and that he has not paid the alimony for reasons beyond his control, and requests, among other things, in his answer that the amount of temporary alimony ordered paid in future be reduced, and where it appears from the judge's order that he said nothing about the application for reduction of alimony, held, that the judge erred in holding the respondent in contempt, and ordering him sent to jail for an indefinite imprisonment subject to enforcement by the sheriff, if the respondent did not make prompt payments in the future. Held further, that the judge will not be directed to reduce the amount of alimony, where it appears that the application for its reduction was merely incidental to and embodied as a part of the contempt proceedings, and no evidence was introduced showing that such reduction should be granted.
(a) In such a case, the defendant can, if he so desires, file an application to have the order granting temporary alimony modified.
From a judgment in a case of attachment for contempt, a writ of error may be brought to the Supreme Court in the same manner as in injunction cases; and where the judge upon the hearing adjudged the defendant in contempt, and directed that he be imprisoned therefor, an assignment of error is sufficiently definite when set out as follows: "To which order in adjudging plaintiff in error to be in contempt of court, and in refusing to modify and reduce the amount of alimony, the plaintiff in error then and there excepted, and now excepts and assigns the same as error, and says that the court erred in adjudging the plaintiff for being in contempt, and erred in refusing to reduce said judgment for alimony."
Error from Superior Court, Screven County; B. T. Rawlings, Judge.
Suit by Mrs. Lecie Davis against J. A. Davis. From a judgment adjudging respondent in contempt, and ordering that he be committed to the common jail without bail or mainprize, he brings error. Reversed.
Mrs. Lecie Davis filed her petition for divorce against her husband J. A. Davis, on the ground of cruel treatment, and also petitioned the court for temporary alimony for herself and minor daughter, who lacked only a few weeks of being 21 years of age. The hearing was before the judge on the sworn petition and answer and the testimony of the plaintiff and defendant. A schedule of the defendant's property was set forth by the plaintiff, who alleged it was worth something like $25,000 or $30,000. The defendant did not attempt to avoid the payment of a reasonable sum for alimony to the wife, but insisted that the property he owned was not worth more than $13,000, upon which there was a mortgage of $8,000, and that he also owed other debts. In addition to this, he alleged that he could earn little or nothing by his present efforts, having recently lost an arm in a cotton gin. On the other hand, he alleged that he had educated his daughter at the Girls' Normal and Industrial College at Milledgeville; that she was strong and capable of earning a living, and was at that time within a few weeks of arriving at age, when he would no longer be legally responsible for her maintenance and support; that the mother was likewise strong and well, and could earn a livelihood.
After hearing the oral testimony of the husband and wife, which was conflicting, the trial judge ordered the respondent to pay the applicant $60 per month, as temporary alimony, and $150 as attorney's fees. Failing to pay the amount ordered, a rule was issued against the respondent, at the instance of his wife, requiring him to show cause why he should not be attached as in contempt of court for failing to pay alimony as required by the order. To this rule, the respondent made a sworn answer, which was not traversed or contradicted by oral testimony, and alleged the respondent's inability to raise the money by loan, sale of his property, or otherwise, though he had attempted to do so, and that he had pointed out to the sheriff sufficient of the property belonging to him to make the sum required, and caused the same to be sold for the purpose of paying the alimony, which was done. He further alleged in his answer that his failure to pay the alimony was not intended as any disrespect to the court, but was the result solely of inability to raise the money, which was subsequently done, as above set forth. He prayed the court to modify the order and reduce the amount of alimony. Upon consideration of the case, the judge made the rule absolute, and adjudged the respondent in contempt, and ordered that he be committed to the common jail of Jefferson county (his then residence), without bail or mainprize. It was further ordered that the sheriff suspend the execution of the order until the 7th day of October, 1911, pending prompt payment at that time of the award of alimony that would be due on the 1st day of October, 1911, of $60, but that, should the said award not be promptly paid by the said date, or that any awards in future not be paid within five days from the date on which they became due, namely, on the 1st day of each month, then "the said sheriff shall, and he is hereby ordered, to proceed with the execution of this order." The judge did not modify his order fixing the amount of alimony to be paid. To the judgment of the court, the respondent excepted.
J. W. Overstreet, of Sylvania, for plaintiff in error.
White & Lovett, of Sylvania, for defendant in error.
HILL, J. (after stating the facts as above).
1. Attachment for contempt for failure to pay an amount of alimony ordered by the court is a remedial proceeding to enforce its payment for the benefit of one of the parties to the suit. This proceeding is not a penal process to punish as for contumacious conduct toward the court, but to enforce the payment of the sum ordered and failed to be paid. There is no suggestion in the record that the plaintiff in error was disrespectful or contumacious in his conduct toward the court. In...
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