Ex Parte Beavers.

Citation80 W.Va. 34
PartiesEx Parte Beavers.
Decision Date20 March 1917
CourtSupreme Court of West Virginia
1. Divorce Alimony Contempt Commitment.

To obtain his liberty on the ground of his inability to satisfy a decree for alimony, made in a suit for divorce, in which the court entering it had full and complete jurisdiction, a party com-' mitted on an attachment for his contumacious refusal to pay the amount so decreed against him, must purge himself of the contempt, as far as possible, and make his application for such relief in the court in which he was committed. (p. 36).

2. Habeas Corpus Release Bight to.

Without having done so, and clearly and fully proved his inability to satisfy the decree, he is not entitled to a discharge on a writ of habeas corpus. (p. 37).

3. Divokce A limony0rder Sufficiency.

Lack of a recital in the order of commitment for such contempt, of a finding of the defendant's ability to pay the amount decreed against him, does not vitiate the order, nor rebut the presumption in favor of the correctness thereof. (p. 37).

4. Same Alimony Contempt Commitment.

Lack of a limitation upon the period of imprisonment adjudged by way of execution, to compel satisfaction of a decree for the payment of alimony, does not make it a decree of perpetual imprisonment, nor render the punishment incident thereto cruel or unusual within the meaning of constitutional provisions inhibiting such punishment. (p. 38).

Original application by C. C. Beavers for a writ of habeas corpus against D. C. Collins, jailer, etc.

Writ denied, and petitioner remanded.

Sanders & Crockett and A. G. Fox, for petitioner.

M. 0. Litz, for respondent,

poffenbarger, judge:

Seeking liberation from imprisonment by an order made in an attachment for failure and refusal to pay alimony decreed against him, in a suit for divorce, C. C. Beavers ob- tained a writ of habeas corpus, on his petition exhibiting therewith all the orders made and entered in the cause. The return to the writ relies upon the order of commitment as justification of his detention.

By an order entered, April 8, 1914, a divorce a mensa et thoro was awarded his wife, and it was further adjudged, ordered and decreed that she recover from him the sum of $1,000.00, for the maintenance of herself and her eight infant children, and her costs including a $20.00 attorney's fee. A decree of absolute divorce was entered, March 13, 1915. Nothing having been paid, a rule in contempt was awarded, September 17, 1915. An attachment was awarded, March 2, 1916, and another June 1, 1916, under which an arrest was made. On a bond in the penalty of $2,000.00, conditioned for his appearance, June 13, 1916, he was released until that date. On his appearance, he was committed to the jail of McDowell County, until he should satisfy the decree for said sum of money, by an order reciting that he had " failed and refused to pay any of the alimony so decreed against him" and had, "in violation of the order of injunction" awarded against him in the cause, '' disposed of all of his property in the State of West Virginia and moved to the State of Virginia." After having remained in jail six months, he was temporarily released on a $1,000.00 bond, on account of impairment of his health, due to confinement. At the expiration of the period of liberation prescribed by the bond, February 13, 1917, he appeared and was again committed.

The order of commitment was clearly remedial in its purpose. Although it recites violation of an injunction, it cannot be interpreted as resting upon that offense. Its plain purpose is compulsion of payment of the alimony and that only. It says nothing about the costs or attorney's fees. Payment of the alimony will fully satisfy the condition of the order and effect the prisoner's liberation.

Alleged inability to pay the amount decreed is the principal ground of relief. Both the verified petition and an affidavit filed, in resistance of the matters set up in the return assert it. It appears from the latter, however, that the relator could have paid a considerable portion thereof, if he had desired to do so. At the date of the decree, he was the owner of a house and lot worth more than $2,000.00. Before that date, he had contracted a sale of this property to one Price. Owing to Price's insolvency, the contract was rescinded and the purchase money notes returned. Then the property was conveyed to W. F. Harman for a recited cash consideration of $2,250.00. This occurred only a few days before entry of the decree and after Price had been enjoined from payment of the purchase money to Beavers. It is admitted that Beavers received $1,500.00 in cash from Harman, but he swears it was necessary for him immediately to use $700.00 or $800.00 of that sum in the payment of debts and that the residue has been lost in unfortunate business ventures and expended for the necessaries of life.

Whether this defense was set up in resistance of the order of commitment, does not appear. None of the proceedings except the orders have been brought up. There is a presumption of correctness in favor of the order. That the cause of commitment was within the jurisdiction and power of the court, is not denied. The order of commitment was made more than two years after his property was sold and, presumptively, after the purchase money was received. If Beavers did not set up and rely upon his lack of ability, in resistance of the order, he should have done so. If he then filed an affidavit, such as he has filed here, or orally testified to its purport and effect, a cross-examination and other evidence may have disclosed falsehood therein, amply justifying the action of the court thereon. His unwillingness to pay, if he could, clearly appears from the circumstances. In anticipation of a decree against him, and to render it unavailing, he attempted to convert his property into money, by a sale to Price. That attempt having been thwarted by an injunction, he rescinded the contract and conveyed to another party, and thus evaded the injunctive process of the court. He makes no pretence of having endeavored to pay the wife a cent of the $1,500.00 he admits having received almost contemporaneously with the entry of the decree. He had no intention or desire to pay her anything and was determined to evade it, if possible. His...

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22 cases
  • Dye v. Skeen, 10278
    • United States
    • Supreme Court of West Virginia
    • 12 Diciembre 1950
    ...103 W.Va. 44, 136 S.E. 865; Ex parte Kirby, 100 W.Va. 70, 130 S.E. 86; Ex parte Veltri, 83 W.Va. 226, 98 S.E. 146; Ex parte Beavers, 80 W.Va. 34, 91 S.E. 1076; Ex parte Page, 77 W.Va. 467, 87 S.E. 849; Ex parte Evans, 42 W.Va. 242, 24 S.E. 888; Flack v. Fry, 32 W.Va. 364, 9 S.E. 240; Ex par......
  • State ex rel. Robinson v. Michael, 15084
    • United States
    • Supreme Court of West Virginia
    • 3 Abril 1981
    ...court again disapproved the language in Ruhl, supra, which required a determinate sentence in all contempt cases. Ex parte Beavers, 80 W.Va. 34, 91 S.E. 1076 (1917), was also a habeas corpus proceeding. In that case the petitioner had been imprisoned for an indeterminate term for failure to......
  • Schad v. McNinch
    • United States
    • Supreme Court of West Virginia
    • 25 Enero 1927
    ...... absolutely void, will be driven to seek a remedy by appeal or. other direct proceedings. Ex parte Beavers, 80 W.Va. 34, 91. S.E. 1076; Ex parte Barr, 79 W.Va. 681, 91 S.E. 655;. Franklin v. Brown, 73 W.Va. 727, 81 S.E. 405, L. R. A. 1915C, 557; ......
  • Schad v. Mcninch
    • United States
    • Supreme Court of West Virginia
    • 25 Enero 1927
    ......Ex parte Beavers, 80 W. Va. 34, 91 S. E. 1076; Ex parte Barr, 79 W. Va. 681. 91 S. E. 655; Franklin v. Brown, 73 W. Va. 727, 81 S. E. 405, L. R. A. ......
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