Ex parte Stephenson

• Decision Date: 25 November 1947
• Docket Number: 4 Div. 28.
• Parties: Ex parte STEPHENSON.
• Court: Alabama Court of Appeals

40 So.2d 713

34 Ala.App. 1

Ex parte STEPHENSON.

4 Div. 28.

Alabama Court of Appeals

November 25, 1947

Rehearing Denied Dec. 16, 1947.

E O. Baldwin, of Andalusia, for appellant.

C B. Fuller, of Andalusia, for appellee.

HARWOOD Judge.

This is an appeal from an order of the Probate Court of Covington County denying appellant's petition for a writ of habeas corpus.

For convenience the appellant will hereinafter be referred to as the petitioner.

The petitioner and his wife were divorced by a judgment of the Circuit Court Twenty-second Judicial Circuit of Alabama in 1943, the decree providing that this petitioner pay $20 per month alimony, said amount to be paid to the Register each thirty days thereafter. This petitioner's failure to pay such decreed alimony installments allegedly for a period of fourteen months furnishes the background of this case.

On 5 September 1947 the attorney of record for petitioner's wife in the divorce proceedings made an affidavit before Honorable A. R. Powell, Jr., Register in Equity for Covington County, to the effect that he was the attorney of record for Mrs. Stephenson in the divorce proceedings above mentioned and that 'Affiant further says that said G. W. Stephenson has not performed the terms for many months prior to the filing of this affidavit he has failed to make the monthly payments for the support of the complainant as required by the terms of said decree.'

On the basis of this affidavit Mr. Powell, the Register, issued a writ of arrest addressed to any sheriff of the State of Alabama, said writ being as follows:

'You are hereby commanded to arrest and commit to jail G. W. Stephenson for his failure to perform the terms of the final decree of the court rendered in case No. 2980 lately pending in the Circuit Court of Covington County, Alabama, in Equity wherein Vera L. Stephenson was complainant and G. W. Stephenson was respondent.

'Herein fail not; due return make of this writ as required by law.

'Done this 5th day of September, 1947.'

Pursuant to the above writ of arrest Mr. Tom E. Head, the Sheriff of Covington County, arrested the petitioner and confined him in jail on 6 September 1947.

Petitioner, on 10 September 1947 filed his petition for a writ of habeas corpus in the Probate Court of Covington County setting up the above facts. On that same day the court issued the requested writ to the Sheriff of Covington County, hearing of the habeas corpus proceedings being set for 12 September 1947.

Sheriff Head filed his answer in which he set forth that he was holding petitioner under a process valid on its face, towit, the writ of arrest issued by the Register as above mentioned, and that said writ of arrest was issued by the Register under the provisions of Section 330, Title 7, Code of Alabama 1940. Sheriff Head further asserted on information and belief that the petitioner was about fourteen months in arrears in payment of alimony installments due under the decree of divorce heretofore referred to.

No testimony appears to have been taken at the hearing.

As before stated, at the completion of the hearing on the petition for habeas corpus the Probate Court overruled and denied the petition. Petitioner thereupon perfected his appeal to this court.

In an excellent, and we think well nigh definitive opinion by Bricken, Presiding Judge, in Robertson v. State, 20 Ala.App. 514, 104 So. 561, 567, dealing with the question of contempt proceedings for failing to pay alimony, this court determined that such proceedings are suigeneris, collateral to but independent of the cause in which the contempt arises, and while technically classified as a civil contempt, it is also quasi criminal, the elements of both a criminal and a civil proceeding appearing.

As to the requisite proceedings in such matters it was further stated in the Robertson case, supra:

'We take it that it is now well settled that proceedings of this character must be begun by affidavit. In Encyclopedia of Pleading and Practice, vol. 4, p. 779, it is said that:

"By Affidavit.--a. Its Necessity. The almost universal method by which contempt proceedings are begun is by an affidavit, and an examination of the authorities will generally disclose that in all contempt proceedings, save for such as are committed in the court's immediate presence, an affidavit is essential.'

'In volume 5 of the Standard Encyclopedia of Procedure, p. 390, the rule supported by numerous authorities is stated thus:

"Indirect or Constructive Contempt. If the proceedings be for a civil, indirect or constructive criminal contempt, the offender must, as a rule, be brought before the court by a rule or some other sufficient process based on affidavit, it not being necessary that the application be instituted by petition. Although if the contemner be present in court, it is held that the court may dispense with the issuance of a rule.

"It has been held that a proceeding to punish for other than direct contempt is a distinct and independent proceeding, as much so as a new suit, and necessitates the giving of notice of all proceedings.'

'In his work on Marriage and Divorce, in speaking of proceedings to enforce the payment of alimony, Mr. Schouler in vol. 2, section 1840, says:

"Proceedings in contempt should usually be begun only after demand, and personal service must be made to give the husband proper notice of the proceedings, as summary action cannot be taken."

The power to punish for contempt is inherent in all courts of record at common law, including of course courts of equity. This power exists additionally by virtue of Section 328 of Title 7, Code of...