Eddens v. Eddens

• Decision Date: 22 November 1948
• Citation: 50 S.E.2d 397,188 Va. 511
• Parties: EDDENS . v. EDDENS.
• Court: Virginia Supreme Court

50 S.E.2d 397

188 Va. 511

EDDENS .

v.EDDENS.

Supreme Court of Appeals of Virginia.

Nov. 22, 1948.

Appeal from Circuit Court of City of Richmond; Julien Gunn, Judge.

Suit for divorce by Delia Eddens against William Lee Eddens, wherein a final decree was entered granting plaintiff a divorce a vinculo and ordering defendant to pay court costs and attorney's fees. From a decree in contempt proceeding directing defendant to pay within 10 days accrued attorney's fees and balance of court costs or be arrested and imprisoned, defendant appeals.

Decree affirmed.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.

Callon B. Jones, of Richmond, for appellant.

Jesse M. Johnson, of Richmond, for appellee.

EGGLESTON, Justice.

In 1936 Delia Eddens filed a suit for divorce in the court below against William Lee Eddens. During the pendency of the suit orders were entered requiring the defendant husband to pay to the plaintiff's counsel $100 on account of fees for services rendered in the proceeding. On November 19, 1937, a final decree was entered granting the wife a divorce a vinculo on the ground of desertion. By the terms of the decree the defendant was ordered to pay to the plaintiff $131.80, the balance of accrued court costs, and to her attorney the sum of $200 for the balance of his fee for services in the cause. There was no provision for the payment of alimony. The decree closed with the usual direction that the cause "be striken from the docket and the papers hereof placed among the files for ended causes."

On June 12, 1947, on motion of the plaintiff, a decree was entered reinstating the cause on the docket. It recited that representation had been made to the court that the defendant had failed to abide by the previous decrees requiring him to pay counsel fees and court costs, and consequently he was ordered to appear before the court on June 25, 1947, at 9:30 a. m., and show cause why he should not be adjudged in contempt of court and dealt with accordingly.

On November 24, 1947, a decree was entered, reciting that the defendant had appeared in person in answer to the order to show cause, and that after several continuances the matter had been heard and determined. The decree directed that the defendant pay within ten days the accrued attorney's fees of $300, and the balance of court costs of $61.80. It further directed that upon the failure of the defendant to pay the sums of money within the time specified, a capias should be issued for his arrest and imprisonment. To review this decree the present appeal has been allowed.

The record before us does not disclose what defense, if any, the defendant made in response to the order to show cause which was served on him. He filed no formal answer thereto, nor are we furnished with the evidence which was taken at the hearing.

In the assignments of error it is said that the lower court refused to allow the defendant "to file a written answer setting forth the reasons why he was not in contempt of court" for his failure to make the payments, and refused "to hear evidence ore tenus" on the matter before entering the decree complained of. We find nothing in the record to justify either of these allegations. It is apparent that the defendant had ignored the previous orders of the court without legal justification or excuse. The effect of the decree complained of was to give the recalcitrant husband a further period of ten days within which to purge himself of contempt by making the required payments, or else go to jail. f

In substance his defense before us is that the court is now powerless to compel him in this manner to comply with its mandate.

This brings us to the main question presented in the case, May a court of equity, in a divorce proceeding, enforce its decrees for the payment of counsel fees and court costs by the process of contempt?

The argument of the appellant husband is that a decree for the allowance of counsel fees and court costs is a mere judgment "requiring the payment of money, " within the purview of Code, § 6459; that it isenforceable by execution under the provisions of Code, § 6460, and not by the process of contempt, because, he says, attachment for failure to pay such allowances would be imprisonment for debt which is not permitted under our law.

The precise question has not been previously presented to this court. However, the power and authority of a court of equity in a divorce proceeding to enforce its decrees for the payment of alimony by attachment for contempt has been firmly established by our previous decisions. Typical of such cases are West v. West, 126 Va. 696, 101 S.E. 876; Branch v. Branch, 144 Va. 244, 132 S.E. 303; Lindsey v. Lindsey, 158 Va. 647, 164 S.E. 551.

As we said in Nicholas v. Commonwealth, 186 Va. 315, 321, 42 S.E.2d 306, 309, "The power of courts to punish for contempt is inherent and an important and necessary arm in the proper discharge of the functions committed to them by fundamental law." See authorities there cited, and also Branch v. Branch, supra, 144 Va. at pages 251, 252, 132 S.E. 303.

In West v. West, supra, 126 Va. at page 699, 101 S.E. at page 877, we held that imprisonment in a contempt proceeding for refusal to pay alimony was not imprisonment for debt, which has been abolished in this State, because "the imprisonment is not ordered simply to enforce the payment of the money, but to punish for the willful disobedience of a proper order of a court of competent jurisdiction."

Moreover, we also pointed out in that case, 126 Va. at page 699, 101 S.E. at page 877 that a decree for alimony is essentially different from an ordinary debt or judgment for money. See also, Branch v. Branch, supra, 144 Va. at page 251, 132 S.E. 303; McKeel v. McKeel, 185 Va. 108, 114, 37 S.E.2d 746, 749.

The power and authority of a court of equity in a divorce proceeding to enforce its decrees for the payment of counsel fees and suit money by the process of contempt has frequently been before the courts in other jurisdictions. Those courts which have considered the matter are in accord in holding that allowances to the wife for counsel fees and suit money, like allowances for alimony, may be enforced by contempt proceedings. See 17 Am. Jur., Divorce and Separation, § 583, p. 460; 27 C.J.S., Divorce, § 261, p. 1045; Miller v. Baer, Judge, 114 W.Va. 566, 172 S.E. 612; Orr v. Orr, 141 Fla. 112, 192 So. 466; Van Dyke v. Van Dyke, 125 Ga. 491, 54 S.E. 537; Blackburn v. Blackburn, 201 Ga. 793, 41 S.E.2d 519; Davis v. Davis, 15 Wash.2d 297, 130 P.2d 355; Ex parte Davis, 101 Tex. 607, 111 S. W. 394, 17 L.R.A., N.S., 1140; O'Neil v. O'Neil, Tex.Civ.App., 77 S.W.2d 554, 558; Ex parte Risner, 67 Cal.App.2d 806, 155 P. 2d 667; Sessions v. Sessions, 178 Minn. 75, 226 N.W. 211, 701; Jensen v. Jensen, 119 Neb. 469, 229 N.W. 770; Boardman v. Carey, 62 App.D.C. 152, 65 F.2d 600.

These authorities reason that allowances for counsel fees and suit money are of the same nature and are governed by the same general principles as allowances for maintenance and support; that allowances for counsel fees and costs are incidental to and a part of the alimony decreed to be paid to the wife, in that they are a means of enforcing the performance of a legal duty owing by the husband to the wife, in which the public has an interest; and that such allowances, like alimony, are not mere debts or money judgments ¹ within the meaning of the constitutional and statutory provisions prohibiting imprisonment for debt.

The decision of the highest court of West Virginia in Miller v. Baer, Judge, supra, is of particular interest, because the precise question now before us was there involved, and the relevant statutes there discussed are practically the same as those in Virginia.

In that case, after the wife had been granted a divorce a vinculo and permanent alimony, the husband filed a petition for reduction of alimony which was sharply contested both in the lower court and on appeal.

Baer, Judge of the Domestic Relations Court, awarded the wife $150 attorney's fees and $50 suit money for services rendered in the matter of the husband's petition for the reduction of alimony, but refused to enforce collection of such items by a contempt proceeding. Upon the wife's application the Supreme Court of Appeals awarded a writ of mandamus, directing the judge to enforce by process of contempt its decree requiring the husband to pay attorney's fees and suit money.

In discussing the nature of alimony the opinion points out that "it is not considered a debt within the meaning of the statutes and Constitutions which prohibit imprisonment for debt", nor is it a money decree within the meaning of section 38-3-1, similar to Virginia Code, § 6459, providing that a decree for "the payment of money" is a "judgment, " or within the meaning of section 38-3-2, similar to Virginia Code, § 6460, providing for the enforcement by execution of a decree "requiring the payment of money." Under these two latter sections, the opinion says, courts of equity do not have the power to enforce decrees for the payment of money by process of contempt.

The, court then cogently reasons that the same principles apply to an award for counsel fees and suit money: "Without a preliminary award to the wife for the purpose of carrying on or defending suit, she would be unable to develop properly her side of the cause. Such items are therefore essential to a proper award of alimony upon the granting of a divorce. They are bound up in the preliminary award. Why retain the right to enforce a decree for alimony, if the wife, in the first instance, be denied the right to so enforce the advancement of counsel fees and suit costs? Such fees are incidental to and part of the alimony decreed to be paid the wife. At the time of the divorce, the wife was awarded $150 per month for alimony, or maintenance. It did not contemplate further litigation. Now the husband seeks to have the award...