Ellis v. Ellis

• Decision Date: 17 February 1964
• Docket Number: No. 42897,42897
• Citation: 248 Miss. 483,160 So.2d 904
• Parties: David W. ELLIS v. Mrs. Carolyn P. ELLIS.
• Court: Mississippi Supreme Court

Page 904

160 So.2d 904

248 Miss. 483

David W. ELLIS v. Mrs. Carolyn P. ELLIS.

No. 42897.

Supreme Court of Mississippi.

Feb. 17, 1964.

John Gregg, Jackson, for appellant.

Odom, Odom & Pittman, Greenwood, for appellee.

TOM P. BRADY, Justice.

The appellant, David W. Ellis, and appellee, Mrs. Carolyn P. Ellis, were married in 1945, and of this marriage they have four minor children. They lived together until separated on or about June 17, 1959. On February 2, 1962, by decree of the Chancery Court of the First Judicial District of Hinds County, the appellee was authorized to live separate and apart from the appellant and to retain custody of their aforesaid four children. The decree further required the appellant to pay appellee separate maintenance and support money for their said children in the sum of $300 per month, or one-half of his income, whichever should be greater. The total payments to be made by appellant not to exceed $5,000 annually. The appellant was also required to furnish appellee with a monthly bank statement on the first day of each month, and at the close of the calendar year, to furnish her with a profit and loss statement. Appellant was ordered to pay appellee's attorney's fees in the sum of $300, which were payable within a four-month period.

On April 17, 1963, appellee filed her petition in the said court, praying that appellant be cited for contempt because of his failure to comply with the aforesaid decree of February 2, 1962, charging that appellant had refused and failed to furnish the appellee with monthly bank statements and the aforesaid annual profit and loss statement; that appellant had likewise refused and failed to pay any part of appellee's attorney's fees, and for said interim of time from February 2, 1962, to April 17, 1963, he had paid to her only the sum of $1,300 during 1962 and $230 for 1963.

The appellant answered the petition, praying that he be cited for contempt, and denied the material allegations of said petition. By way of affirmative defense, he alleged that he has provided for appellee and his children with all the means of support he was currently able to provide; that he had suffered financial reverses and losses and that his monthly earnings had been seriously reduced; that he has been working and has been doing everything possible to comply with the aforesaid decree. He further charges that a reasonable amount of money in support of his children, under the existing circumstances, should be in the amount of $200, which he asks the court to find to be reasonable under the aforesaid conditions. Like the appellee, he also prayed for general relief.

The cause was heard by the chancellor on April 30, 1963, and, among other things, he held as follows:

'The Court finds Mr. Ellis is in arrears in the sum of $2,906.00 in his payments to his wife, which includes the child support, and $300.00 in attorneys fees. * * *

'The Court further finds that from the evidence and the general attitude of Mr. Ellis that he is definitely in contempt of Court. * * * He may purge himself of contempt by paying to Mrs. Ellis the sum of $2,906.00 and all costs of this proceeding on or before two o'clock P.M. on Monday, May 6, 1963. In the event that he has not purged himself of contempt on or before two o'clock P.M. on May 6, 1963, the Decree may authorize and direct the issuance of a warrant, or whatever is necessary from the Sheriff of Hinds County, to place Mr. Ellis in the Hinds County Jail, and there to remain until he does purge himself of contempt by paying the sums that are past due and any sums that may accrue while he is in jail.'

A careful review of the evidence in this case indicates that appellant has completely failed to comply with the court's decree in that he has refused and neglected to provide appellee was a monthly bank statement on the first of each month; failed and refused to provide her with a profit and loss statement at the close of the calendar year; has refused to pay her attorney's fees in the sum of $300; and has also failed to pay the $300 per month, or a substantial sum of money each month, for the maintenance and support of his children. The last failure or neglect, the appellant contests, but the other three failures or refusals are not denied by him.

The appellant testified that his gross income for the period involved was only $3,360.00, and in spite of the fact that he has diligently worked and endeavored to earn the amount necessary to comply with the court's decree, nevertheless, it has been impossible for him to do so, and pay the aforesaid $300 a month.

Appellee contests the reasons offered by appellant for not paying the $300 per month support and maintenance money for their children, and urges that appellant's proof fails to meet the burden placed upon him by appellee's prima facie charge of contempt. Appellee further disputes the contention of the appellant that the record does not show a present ability on the part of the appellant to comply with the $300 per month payment required.

Appellee urges that the record does disclose that appellant has other money or property which he could sell or encumber in order to get the money to make the required payments. It is fundamental that before the lower court's decree can be enforced, which cites the appellant for contempt and orders him to be committed to jail, it must reasonably appear that appellant is presently able to comply with the decree. This rule is clearly stated in Lewis v. Lewis, 213 Miss. 434, 57 So.2d 163. In the aforesaid case, this Court remanded it because the record failed to disclose whether the husband owned an automobile or other personal property or real estate on which...