Ensley v. Ensley

• Decision Date: 20 October 1977
• Docket Number: No. 32668,32668
• Citation: 239 Ga. 860,238 S.E.2d 920
• Court: Georgia Supreme Court
• Parties: Robert F. ENSLEY v. Barbara T. ENSLEY.

Page 920

238 S.E.2d 920

239 Ga. 860

Robert F. ENSLEY v. Barbara T. ENSLEY.

No. 32668.

Supreme Court of Georgia.

Oct. 20, 1977.

Paul R. Koehler, Atlanta, for appellant.

Grubbs & Platt, J. Milton Grubbs, David S. Marotte, Marietta, for appellee.

HILL, Justice.

This appeal raises the issue of whether a father who wilfully refuses to pay child support required by a divorce decree may be found guilty of criminal contempt of court and unconditionally imprisoned for 20 days pursuant to Code § 24-2615(5).

The trial court found that the defendant father was able to pay the alimony and child support awarded in the decree but had refused to do so. The court found him in contempt and sentenced him as follows: "It is hereby ordered and adjudged that the Defendant is in Contempt of this Court's Order for child support and he is ordered incarcerated in the common jail of Cobb County for a period of twenty (20) days from the 10th day of March, 1977. * * * It is hereby ordered and adjudged that the Defendant is in Contempt of this Court's Order for failure to make the mortgage payments on the Stilesboro Road property in the amount of $1,057.12. It is further ordered and adjudged that upon the completion of the 20 day incarceration, the Defendant may purge himself of this Contempt by payment in full of the arrearage of child support of $700.00 and the mortgage payments on the Stilesboro Road property, in the amount of $1,057.12, for a total of.$1,757.12."

The defendant-appellant enumerates that order as error and urges only that the sanction of criminal contempt (unconditional imprisonment) is not a sanction available to the trial court for his refusal to make payments required by a court order, as such imprisonment would constitute imprisonment for debt in violation of our Constitution (Code § 2-120).

The difference between civil and criminal contempt has been frequently stated, Cobb v. Black, 34 Ga. 162(2) (1865); Davis v. Davis, 138 Ga. 8(1), 74 S.E. 830 (1912); Easley v. Easley, 238 Ga. 180(3), 231 S.E.2d 763 (1977), and almost as frequently overlooked, e. g., McCullough v. McCullough, 208 Ga. 776, 778-779, 69 S.E.2d 764 (1952). Suffice it to say here that purpose is the key consideration. "A major factor in determining whether a contempt is civil or criminal is the purpose for which the power is exercised. Where the primary purpose is to preserve the court's authority and to punish for disobedience of its orders, the contempt is criminal. Where the primary purpose is to provide a remedy for an injured suitor and to coerce compliance with an order, the contempt is civil." 17 Am.Jur.2d Contempt § 4. The conditional or unconditional imposition of a fine or imprisonment indicates the purpose of an order. If the contemnor is imprisoned for a specified unconditional period (not to exceed 20 days under Code § 24-2615), the purpose is punishment and thus the contempt is criminal. If the contemnor is imprisoned only until he performs a specified act, the purpose is remedial and hence the contempt is civil. Davis v. Davis, supra. ¹

We note that there is nothing inherent in a divorce decree or alimony award which prevents wilful disobedience of its commands from being punished by criminal contempt proceedings. For example, an unconditional fine for refusal of a mother to allow a father's visitation was approved in Bowen v. Bowen, 230 Ga. 670(3), 198 S.E.2d 862 (1973). In Bowen, the order provided that if the fine were not paid, the contemnor would be imprisoned for 10 days. Moreover, a small but unconditional fine for nonpayment of alimony was impliedly approved in Fint v. Johnson, 229 Ga. 188, 190 S.E.2d 32 (1972).

There is at least one decision, however, holding that the sanction of criminal contempt is not available to punish disobedience to an alimony award. Mathews v. Mathews, 222 Ga. 311(3), 149 S.E.2d 666 (1966). In Mathews, the court reasoned that unconditional imprisonment for nonpayment of alimony would constitute imprisonment for debt.

On the other hand, there are numerous cases holding that imprisonment conditioned upon payment of alimony is not imprisonment for debt where the contemnor is found to be able but unwilling to pay. Carlton v. Carlton, 44 Ga. 216(3) (1871); Lewis v. Lewis, 80 Ga. 706, 6 S.E. 918 (1888); Heflinger v. Heflinger, 172 Ga. 889, 159 S.E. 242 (1931); Brannon v. Brannon, 225 Ga. 677, 171 S.E.2d 123 (1969). Compare Horton v. Horton, 222 Ga. 430, 150 S.E.2d 630 (1966). Although Carlton v. Carlton, supra, and the subsequently cited cases involved civil contempt (i. e., conditional imprisonment), the logic of those cases nevertheless is applicable. A man who refuses to pay alimony or child support when he is able to do so is imprisoned for his refusal to abide by the court's order, not for debt. As was said in Carlton v. Carlton, supra at 220: "The imprisonment must be clearly for the contempt of the process of the Court, and be of one who is able and unwilling to obey the order of the Court. * * * And very clearly, it ought never to be resorted to, except as a penal process, founded on the unwillingness of the party to obey. The moment it appears that there is inability, it would clearly be the duty of the Judge to discharge the party, since it is only the contempt, the disobedience upon which the power rests."

The lack of precision in our divorce-contempt decisions (including most recently this author's opinion in Easley v. Easley, 238 Ga. 180(3), 231 S.E.2d 763 (1977)) arises from the correctly decided case of Davis v. Davis, 138 Ga. 8, supra. In Davis, the contemnor was ordered imprisoned, but not if he paid the alimony specified by the court. Although imprisonment was ordered, it was conditional. That was a civil contempt proceeding. This court found it to be a civil proceeding, saying (138 Ga. at 10): "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 but not paid." The foregoing language has been quoted and cited as authority for the proposition that an attachment for contempt for failure to pay alimony is civil in nature. Mendel v. Mendel, 202 Ga. 675, 676-677, 44 S.E.2d 257 (1947...