Ex Parte Kinsolving

• Decision Date: 23 February 1909
• Citation: 135 Mo. App. 631,116 S.W. 1068
• Parties: Ex parte KINSOLVING
• Court: Missouri Court of Appeals

116 S.W. 1068

135 Mo. App. 631

Ex parte KINSOLVING

St. Louis Court of Appeals. Missouri.

February 23, 1909.

1. DIVORCE (§ 269)—ALIMONY—ENFORCEMENT — CONTEMPT — IMPRISONMENT — "ORDER FOR PAYMENT OF DEBT."

Rev. St. 1899, § 2926 (Ann. St. 1906, p. 1683), provides for an allowance of alimony and maintenance, and declares that the court may award execution for the collection thereof, or enforce the judgment by any lawful means in accordance with the practice of the court. Section 2927 (page 1686) gives a general lien on realty, and section 4327a (page 2376) declares that no property shall be exempt from execution or garnishment on a decree for alimony or maintenance. Held, that a decree allowing alimony or maintenance was a decree for a debt, which was not therefore enforceable by imprisonment in contempt proceedings under section 4685 (page 2552), declaring that no person shall be arrested, held to bail, or imprisoned on any mesne process or execution founded on any civil action whatsoever, and Const. art. 2, § 16 (Ann. St. 1906, p. 145), prohibiting imprisonment for noncompliance with an order for the payment of a debt.

2. DIVORCE (§ 269)—ALIMONY—MAINTENANCE — CONTEMPT PROCEEDINGS — FRAUDULENT CONVEYANCES.

Whether a conveyance of property by petitioner was fraudulent, and made to defeat his former wife's judgment for alimony and maintenance, could not be determined in proceedings against him for contempt for failing to comply with such decree.

Habeas corpus on petition of Floyd Kinsolving. Writ granted. Petitioner discharged.

J. P. Tribble, and C. F. Schneider, for petitioner.

REYNOLDS, P. J.

The petitioner, alleging that he is illegally restrained of his liberty under and by virtue of an order issued out of the circuit court of Dunklin county, prays to be released. The case was heard on the petition, the return of the sheriff, and on a paper submitted by Mrs. Isabelle V. Kinsolving. It appears from the record and papers submitted that in a suit for divorce, in Dunklin county, in which petitioner was plaintiff and his then wife, Isabelle V. Kinsolving, defendant, a decree was entered by the circuit court of that county, awarding a divorce to the petitioner, plaintiff in the divorce proceeding, and further ordering that the defendant in that suit, Isabelle V. Kinsolving, retain the custody of the children, with the right and privilege to the petitioner to see and associate with them upon all reasonable occasions, and, further, that the petitioner here pay to his former wife the sum of $2,500 "as a part of and a condition to his decree of divorce, said sum to be paid to defendant within a reasonable time, payment thereof to be secured at once. It is further ordered, adjudged, and decreed that plaintiff shall provide for the reasonable and proper support of the said children of plaintiff and defendant," and that he pay to the attorneys for defendant in the divorce suit the sum of $400 as part of the alimony pendente lite and as compensation for their services in behalf of the defendant, the costs of the prosecution being adjudged against petitioner, plaintiff in the divorce suit. It appears that afterwards the circuit court of Dunklin county issued an order, duly served on him, directing the petitioner to appear in court, "and show cause, if any he can show, why he should not be punished for a contempt of court in failing and refusing to abide by and obey the order and judgment of this court requiring him to maintain and support his minor children." On the hearing of this citation it also appears by a recital in the record produced that the court found that the petitioner was divorced from his wife at the May term of the court, 1902; that afterwards, at the November term, 1902, upon a hearing at which both parties plaintiff and defendant in the divorce case had appeared, the court had made an order requiring the petitioner to pay the sum of $500 for the support of the minor children, then living with their mother, and that said sum had not been paid; that, at a subsequent term of the court, the court, upon hearing both parties, had required petitioner to pay to his former wife the monthly sum of $45 for the support of the three minor children; and that no part of the sum had been paid by the petitioner. The court further found that petitioner "is financially able to pay the sums hereinbefore ordered by the court, and that he has not shown to the court any reason why he has not complied, and why he should not comply, with the previous order of the court." Whereupon the court ordered that, these matters appearing, the petitioner be and is adjudged guilty of "contempt of this court by reason of his failure to obey the previous orders of this court as aforesaid, and because of the findings of fact set out above; and it is ordered and adjudged that said F. Kinsolving pay the lump sum of $3,000 to said I. V. Kinsolving for the support of said minor children in compliance with and in satisfaction of the said orders heretofore made as set out above, and that said payment be made forthwith. It is further ordered that said F. Kinsolving stand committed to the custody of the sheriff of Dunklin county, Mo., to be by him confined until he shall purge himself of such contempt of court by compliance with the said order to pay the sum of $3,000 to said I. V. Kinsolving, for the purpose aforesaid, in satisfaction of the previous orders of this court, as aforesaid."

These various orders of allowance are copied into the record, and need not be further set out here; it being sufficient to say that the court had apparently made them in due course and regularly. The return of the sheriff in this proceeding sets them up, along with the commitment, as justification. It should also be noted that it appears by duly certified copies from the record that, in answer to the citation issued against him by the circuit court of Dunklin county, the petitioner set up that he had not discharged the judgment of the circuit court, except a part of it, because of his inability to comply with the order or judgment in full, that inability arising from the fact that, in complying with the terms of the original judgment and order for the payment of the alimony which was entered at the time of the granting of the divorce to plaintiff, he was compelled to exhaust all of his property, both real and personal, except as stated therein, and that, on account of his physical disability, he had since that time been unable to practice his profession, that of a physician and surgeon, and had been unable to accumulate sufficient property to pay the same; that the small amount of property remaining in his hands and belonging to him after paying the judgment rendered in the divorce suit was turned over and delivered to his former wife for the use of herself and children, and that he has now no property or money out of which he can pay off and satisfy the order and judgment of the court. He attached to his answer a list of property which he claimed was then owned by him, consisting of two choses in action, judgments he had paid, and in which he was one of the defendants.

When this case came on for hearing under the writ of habeas corpus in this court, the divorced wife, Isabelle V. Kinsolving, presented her petition to this court, asking to be heard in opposition to the granting of the writ and in opposition to the discharge of the petitioner. In this petition she sets out the fact of the award of the alimony and of the citation against the petitioner, and of his failure to pay off the alimony in full, and states that she is informed, and believes the fact to be, that the petitioner had conveyed all of his real estate soon after his decree of divorce from his wife to one Ruffin; that the property conveyed was worth $18,000, and was incumbered by a deed of trust for $9,000; that Ruffin paid nothing for the conveyance, and that he had conveyed the property to one Mrs. Anderson, who later became and is now the wife of the petitioner; that during all the time the title to the property was apparently vested in Ruffin the rents had been collected and retained by Mrs. Anderson, now Mrs. Kinsolving; and Mrs. Isabelle Kinsolving offers to prove these facts, if permitted to interplead in the case. This interest in the realty and judgments was all petitioner appears to have, and, as we understand the record, it was on the alleged claim that the conveyance of the realty by petitioner was pretended, and not actual, and that he was still the owner of it, that the learned judge of the circuit court based his finding that the petitioner "is financially able to pay the sums heretofore ordered by the court." We have treated this petition of intervention, if it may be so called, as testimony introduced in the case, and have stated it here, not in recognition of the regularity of such a proceeding, or in acknowledgment of any right of intervention, but in order that the facts claimed as a reason for the commitment of the petitioner may be fully under stood; it having been claimed that these facts were in evidence before the circuit court of Dunklin county when the citation was heard and the commitment of the petitioner made, and that on these facts the learned trial judge had acted in making the commitment.

At the hearing of the petition we were furnished with a very instructive paper, prepared by one of the circuit judges of this state, collating the decisions of the courts of other jurisdictions on the question of alimony, and all claimed to treat the allowance of alimony as not a judgment for a mere debt; the argument being that our state and one other state stand alone in treating it as a debt and in declining to imprison a party for failure to pay alimony awarded in a divorce proceeding. Whatever weight may be given to that argument elsewhere, we are precluded from yielding to it by the decision of our Supreme Court in the case of Coughlin v. Ehlert, 39 Mo. 285. That...