Eddens v. Eddens, Record No. 3398.

• Citation: 188 Va. 511
• Decision Date: 22 November 1948
• Docket Number: Record No. 3398.
• Court: Supreme Court of Virginia
• Parties: WILLIAM LEE EDDENS v. DELLA EDDENS.

Page 511

188 Va. 511

WILLIAM LEE EDDENS v. DELLA EDDENS.

Record No. 3398.

Supreme Court of Virginia, Richmond.

November 22, 1948.

Present, All the Justices.

1. DIVORCE — Counsel Fees and Costs — Not a Money Decree within Purview of Statutes — Enforceable by Imprisonment — Case at Bar. — In the instant case, an action by a wife for divorce, the defendant was ordered by the final decree to pay court costs and a fee to plaintiff's counsel. Nearly ten years later the cause was reinstated on the docket because defendant had failed to abide by the previous decree and a decree was entered the effect of which was to give defendant a further period of ten days within which to purge himself of contempt by making the required payments or go to jail. Defendant contended that a decree for the allowance of counsel fees and court costs was a mere judgment "requiring the payment of money" within the purview of section 6459 of the Code of 1942 (Michie), enforceable by execution under the provisions of section 6460 of the Code of 1942 (Michie), and attachment for failure to pay such allowance would be imprisonment for debt.

Held: There was no merit in the contention. Alimony 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 sections 6459 and 6460 of the Code of 1942 (Michie). The same principles apply to an award for counsel fees and suit money.

2. DIVORCE — Counsel Fees and Costs — Means Essential to Obtaining Alimony. — Without a preliminary award for counsel fees and suit money to the wife for the purpose of carrying on or defending a suit for divorce, 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. Such fees are incidental to and part of the alimony decreed to be paid the wife. The wife, to protect her interests, must have funds with which to employ counsel and pay court costs. Not to provide her with such funds might possibly defeat her right to alimony. If essential to the obtaining of alimony, it is just as necessary to protect such right, once it is acquired. It is in fact a part of the maintenance, and therefore enforceable by process of contempt.

3. DIVORCE — Counsel Fees — Powers of Court. — Award of counsel fees in suits for divorce are but means of enforcing the performance of a legal duty owing by the husband to the wife, in which the public has an interest. The power both to enter and to enforce such orders is inherent in the court.

4. DIVORCE — Counsel Fees — For Benefit of Wife. — Whether a decree in a suit for divorce directs the payment of counsel fees to the wife or to her attorney, the allowance is primarily for the benefit of the wife.

5. DIVORCE — Counsel Fees and Costs — Legislative Recognition of Court's Power to Compel Payment. — Section 5107 of the Code of 1942 (Michie) is a legislative recognition of the principle that in a suit for divorce "sums necessary for the maintenance of the woman" and those needed "to enable her to carry on the suit" are in the same category, and that pending the cause the court may by the process of contempt "compel the man to pay" such allowances.

6. DIVORCE — Counsel Fees and Costs — Inherent Power of Court to Punish for Contempt — Case at Bar. — In the instant case, an action by a wife for divorce, the defendant was ordered by the final decree to pay court costs and a fee to plaintiff's counsel. Nearly ten years later the cause was reinstated on the docket because defendant had failed to abide by the previous decree and a decree was entered the effect of which was to give defendant a further period of ten days within which to purge himself of contempt by making the required payments or go to jail. Defendant contended that the trial court was powerless to compel him to comply with its mandate by the process of contempt.

Held: There was no merit in the contention. The trial court had the inherent power to punish the defendant in a contempt proceeding for his wilful refusal to obey its lawful decrees directing him to pay counsel fees and court costs incurred by his wife in the divorce suit, and legislative recognition of this inherent power lay in section 6309 of the Code of 1942 (Michie).

7. DIVORCE — Counsel Fees and Costs — Power of Court to Reinstate Cause for Contempt Proceedings — Case at Bar. — In the instant case, an action by a wife for divorce, the defendant was ordered by the final decree to pay court costs and a fee to plaintiff's counsel. Nearly ten years later the cause was reinstated on the docket because defendant had failed to abide by the previous decree and a decree was entered the effect of which was to give defendant a further period of ten days within which to purge himself of contempt by making the required payments or go to jail. Defendant contended that inasmuch as the divorce decree had become final the trial court had no authority to reinstate the cause on the docket for the purpose of instituting and hearing the contempt proceeding.

Held: There was no merit in the contention. Technically the reinstatement statement of the cause on the docket for the purpose stated was not proper nor was it necessary. But the fact that the decree had become final did not deprive the court of the power and authority thereafter to enforce its mandate by a contempt proceeding. Final decrees were frequently enforced in this manner.

8. CONTEMPT — Procedure — Proceedings Ancillary to Principal Suit. — Usually a contempt proceeding to enforce the terms of a final decree is instituted by the filing of a written petition or motion, alleging that the alleged contemnor has failed to comply with the mandate of the court, and praying for the issuance of a rule against him to show cause why he should not be adjudged in contempt. On such application the court enters an order, or citation, directing the alleged contemnor to appear before it at a stated time and place to show cause, if any, why he should not be attached or otherwise proceeded against according to law for the contempt. Upon service of the order on the alleged contemnor, or upon his appearance in court, he is permitted to file an answer setting forth his defense to the charge. On the issue thus joined the evidence is heard and the matter determined by the court. Frequently, however, the order to show cause is issued on the verbal motion of counsel for the complaining party, but with the like requirement that a copy of the order be served on the alleged contemnor and that he be given an opportunity of being heard thereon. But whichever course is pursued, and although the contempt proceeding may be captioned under the style of the principal suit in which the decree sought to be enforced was entered, it is ancillary to or beyond the principal suit.

9. DIVORCE — Counsel Fees and Costs — Reinstatement of Principal Suit Not Reversible Error — Case at Bar. — In the instant case, an action by a wife for divorce, the defendant was ordered by the final decree to pay court costs and a fee to plaintiff's counsel. Nearly ten years later the cause was reinstated on the docket because defendant had failed to abide by the previous decree. A proper order to show cause why defendant should not be adjudged in contempt was entered, a copy thereof was served on him and he appeared in open court in response thereto. He made no objection apparent on the record to the reinstatement of the cause on the docket nor did he insist that the contempt proceeding be instituted and conducted as an independent or ancillary matter, but on appeal contended that the trial court had no authority to reinstate the cause on the docket for the purpose of instituting and hearing the contempt proceeding.

Held: It was not necessary that the main suit be reinstated on the docket but the reinstatement of the cause did not vitiate the ancillary proceeding and defendant clearly waived the technical error.

10. LIMITATION OF ACTIONS — Action for Counsel Fees and Costs — Not a Criminal Contempt Proceeding — Case at Bar. — In the instant case, an action by a wife for divorce, the defendant was ordered by the final decree to pay court costs and a fee to plaintiff's counsel. Nearly ten years later the cause was reinstated on the docket because defendant had failed to abide by the previous decree and a decree was entered the effect of which was to give defendant a further period of ten days within which to purge himself of contempt by making the required payments or go to jail. Defendant contended that the right to prosecute the proceeding had been barred by the statute of limitations, invoking the provisions of section 4768 of the Code of 1942 (Michie), which provides in part that "a prosecution for a misdemeanor, or any pecuniary fine, forfeiture, penalty or amercement, shall be commenced within one year next after there was cause therefor".

Held: There was no merit in the contention. The statute invoked had no application to the contempt proceeding for this was not a criminal prosecution. The purpose of the proceeding was to enforce the rights of a private party, the wife, and was, therefore, a civil and not a criminal contempt proceeding. In the absence of a statutory limitation, the lapse of time did not deprive the trial court of the power and authority to enforce its decrees by the contempt proceeding.

Appeal from a decree of the Circuit Court of the city of Richmond. Hon. Julien Gunn, judge presiding.

The opinion states the case.

Callom B. Jones, for the appellant.

Jesse M. Johnson, for the appellee.

EGGLESTON, J., delivered the opinion of the court.

In 1936 Della 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...