Fanchier v. Gammill

• Decision Date: 11 November 1929
• Docket Number: 28094
• Citation: 155 Miss. 316,124 So. 365
• Court: Mississippi Supreme Court
• Parties: FANCHIER v. GAMMILL

124 So. 365

155 Miss. 316

FANCHIER v. GAMMILL

No. 28094

Supreme Court of Mississippi

November 11, 1929

Division B

1 DIVORCE. Decree providing that, on failure to pay alimony allowed, execution should issue. held not to limit enforcement of decree to execution thereon.

Where the chancery court in a decree for alimony directed the payment of alimony, fixing the sum thereof, and provided "that on failure to pay the amount directed to be paid execution shall issue," this does not have the effect of limiting the court in enforcing the decree to execution upon the judgment, but the court may proceed under contempt proceedings, garnishment, ne exeat republica, or other appropriate means of enforcing this decree.

2 DIVORCE. Chancery court may enforce another state's decree for alimony by contempt proceedings and other legal methods (Constitution 1890, section 159).

Under section 159 of the Constitution of 1890, the chancery court has full jurisdiction of divorce and alimony, and may enforce a decree or judgment of another state for alimony, and in enforcing its judgment may use contempt proceedings as well as other legal methods of coercing the performance of the duty to pay alimony.

3. CONSTITUTIONAL LAW. Husband and wife. Husband's obligation to support wife is not merely contractual, but is founded partly on public policy; husband's obligation to support wife is public duty not "debt" within constitutional prohibition against imprisonment for debt husband may be forced to support wife by contempt proceedings or criminal statute.

The obligation of the husband to support his wife is not merely a contractual obligation, but is founded in part upon the public policy; it is a public duty established by law, and not a debt in the ordinary sense of that term, or in the sense of the Constitution prohibiting the imprisonment for debt, but the husband may be forced to perform this duty by contempt proceedings or by criminal statute.

4. DIVORCE. That decree fixing alimony is marked O. K. by husband's attorney before chancellor signs does not make decree "consent decree," but merely shows it to be in proper form.

Where a decree of the chancery court fixing the amount of alimony and directing its payment is followed by a provision that, if not paid, execution shall issue, and the decree so drawn before being signed by the chancellor is marked O. K. by the husband's attorney, this does not constitute the decree a consent decree, but merely shows the decree to be in proper form to conform to the oral judgment rendered by the chancellor.

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county, First district, HON. V. J. STRICKER, Chancellor.

Suit by Cherie Fanchier against Paul Gammill. From a decree dismissing plaintiff's proceeding to punish defendant for contempt of court for failure to pay alimony under previous decree, plaintiff appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Franklin, Easterling & Rosenthal, of Jackson, for appellant.

The inclusion of the phrase, "that execution issue as upon a judgment at law," in the decree does not constitute an election nor does it limit its effect as though it were a judgment at law. The power to punish by fine and imprisonment for failure to carry out its orders and decrees is an inherent power of the chancery court.

Delgado v. Clavez, 140 U.S. 586, 35 L.Ed. 578; Durhan v. State, 52 So. 627; Wood v. Ratliff, 103 So. 356; 19 C. J. 302; Sec. 1483, Hemingway's Code 1927 (Sec. 1415 Hemingway's Code 1917); Rhinehart v. Rhinehart, 126 Miss. 488, 89 So. 152; 19 C. J. 216; Ramsey v. Ramsey, 87 So. 491, 125 Miss. 185; Edmonson v. Ramsey, 84 So. 455; Murphy v. Hutchison, (Miss.), 48 So. 178; Madden v. Louisville N. O. & T. Ry. Co., 66 Miss. 258, 6 So. 181; Fried Erichsen v. Renard, 247 U.S. 207, 62 L.Ed. 1075.

J. M. Stevens, of Jackson, for appellant.

The chancery court has full jurisdiction under our constitution of divorce and alimony, and as a part of that jurisdiction may enforce payment of the decree, not only by execution but by contempt proceedings.

Cadenhead v. Estes, 99 So. 361.

Appellant has waived nothing nor is she estopped to claim benefit of contempt proceedings by simply writing into the decree language which the statute imports and language which by immemorial custom has been written into every judgment at law since the foundation of our state jurisprudence.

Sec. 418, Hemingway's Code of 1927.

Watkins, Watkins & Eager, of Jackson, for appellee.

Where it is apparent from the record that no evidence was taken and a decree entered upon the "O. K." or approval of opposing counsel, such a decree is a consent decree.

21 C. J. 814; 12 C. J. 520; 15 R. C. L. 646; 34 C. J. 129, paragraphs 331 and 332; Indianapolis D. & W. R. R. Co. v. Sands (Ind.), 32 N.E. 722; Hohenadel v. Steele (Ill.), 86 N.E. 717; Chicago & Vincinity Hungarian Benev. Soc. v. Chicago & Suburb Hungarian Aid Society (Ill.), 118 N.E. 1014.

A consent decree must be construed as a solemn contract and agreement between the parties.

21 C. J. 815; Hohenadel v. Steele (Ill.), 86 N.E. 717; 15 R. C. L. par. 87, pages 644 and 646.

The sole remedy to which appellant becomes entitled upon a failure to pay is that of execution to be issued in like manner as though the judgment was one at law, because of said solemn contract in the consent decree.

19 C. J. 305; Traylor v. Richardson, 2 Ind.App. 452, 28 N.E. 207.

OPINION

Ethridge, P. J.

This is the second appeal of this case. The first appeal is reported under the style of Fanchier v. Gammill, 148 Miss. 723, 114 So. 813. The former appeal was on a suit in the chancery court to reverse a judgment for alimony rendered in the state of Nevada in which the court of that state entered a judgment, or decree, divorcing Paul Gammill and Cherie Fanchier Gammill, awarding alimony to Cherie Fanchier Gammill and restoring her maiden name, Cherie Fanchier.

The court, on the first appeal, reversed the decree of the chancery court which had declined jurisdiction on the ground that the action was entertainable only in a court of law. It was there settled that the chancery court had jurisdiction and could enforce the judgment by all the remedies available in a domestic suit of like character, and we remanded the cause to the court below for further proceedings. When the case was remanded, the defendant Gammill, answered the bill, admitting the foreign judgment and all of the allegations of the bill practically, except a statement in the bill of complainant that the complainant was without means of support, and that the defendant, Gammill, had means of satisfying the...