Gibson v. Clark, 38610

• Decision Date: 02 February 1953
• Docket Number: No. 38610,38610
• Citation: 62 So.2d 585,216 Miss. 430
• Parties: GIBSON v. CLARK.
• Court: Mississippi Supreme Court

Page 585

62 So.2d 585

216 Miss. 430

GIBSON v. CLARK.

No. 38610.

Supreme Court of Mississippi.

Feb. 2, 1953.

Paul G. Swartzfager and Raymond Swartzfager, Laurel, for appellant.

Collins & Collins and Grover C. Doggette, Laurel, for appellee.

LOTTERHOS, Justice.

Appellant and appellee, formerly husband and wife, were divorced by decree of the Chancery Court of Jones County on February 4, 1947. Appellee was given custody of their twin sons, then three years of age. The decree granted to her $50 per month as alimony and $50 per month for the support of the children, payable semi-monthly, beginning February 15, 1947. The proceeding now under review arose on a petition filed by appellee in the same court on January 2, 1952, alleging that appellant owed her $3,490 plus interest under the decree and that he contemptuously failed and refused to pay that amount, and praying that appellant be adjudged in contempt of court therefor and punished. Other pertinent parts of the petition will be referred to later in this opinion.

Appellant was taken into custody under a writ of ne exeat, made bond, and appeared for the trial at the February, 1952 term of court. At the conclusion of the trial, the court found appellant in arrears for child support in the amount of $2,680, but that he was not in contempt for failure to pay $500 thereof because of inability to make payments during a period of ten months, found that he was in contempt of court with reference to failure to pay child support in the sum of $2,180, and ordered that appellant be imprisoned until he shall have purged himself of contempt by paying $2,180 and costs. From this decree, appellant has appealed and he has executed bond for his release from custody, pending the appeal. Appellee has cross-appealed, claiming that the court below should have allowed to her alimony accrued and unpaid, as well as support money for the children, and also interest.

The facts developed in the proof, to the extent necessary in the decision of this case, are outlined as follows: Appellee married a Mr. Clark one year after the divorce decree. Appellant remarried about October, 1951. At the time of the divorce in February, 1947 appellant was in New Orleans, working for a truck line. He remained in that employment about four months after the divorce; then entered the Veterans Hospital at New Orleans for several months; operated a taxi in the same city for a considerable time, first, for approximately two months, with a car that he was attempting to purchase, and then as a driver for another man; worked in a restaurant and bar in New Orleans, in which he owned a half interest, according to appellee; and was in the employment of a New Orleans contracting firm for some months. Appellant then, in February, 1950, returned to Jones County, Mississippi, where appellee had remained, and worked three months in a soft drink and beer place, and then at a 'honky-tonk' until September, 1950. Thereafter, appellant went to Shreveport, Louisiana, and worked either in a hotel or a bar until December 31, 1951. He lost that job on account of being away in connection with the proceeding instituted by appellee, and was not employed at the time of the trial.

There was conflicting testimony with respect to the earnings of appellant during his various employments, the proof on his behalf showing from $20 to $50 per week at different times, and that of appellee showing from $50 to $100. There was no evidence nor any examination with respect to property, if any, owned by appellant at the time of the trial, except in insignificant particulars, such as the cost of the suit of clothes he was wearing.

Appellee testified that since the divorce, appellant had paid her only $60, and had done nothing else for her and the children except send a few clothes and two bicycles for the boys, although she had repeatedly attempted to get him to comply with the original decree; that she had made no agreement with him in modification of the decree; and that appellant had stated in effect that he would not pay her anything. To the contrary, appellant testified that he had given appellee considerable money from time to time (as much as he could), although the details and exact amounts were vague except in a few small instances; that he and appellee remained friendly, and she stated that he was doing all he could for the boys; that there was some sort of agreement or understanding between them that the decree would not be enforced according to its terms; and that he had not stated he would not pay her anything.

We come now to the points of law involved on this appeal. Appellant first makes the contention that the petition filed by appellee is insufficient to justify the imposition of punishment as for a contempt of court, because it fails to allege that petitioner had exhausted the possibilities of collecting the amounts due her by normal process, such as writs of execution and garnishment, or that the issuance of such process would have been futile. He also claims that there was no proof along these lines.

Reliance is placed on Amis, Divorce and Separation in Mississippi, to support the claimed rule, citing Section 277. It is obvious that Judge Amis was not referring to the power of the court, but was discussing the factors which should guide a chancellor in exercising the power to punish for contempt. In Section 275, he states his approval of those cases which hold that though the power exists, it should not be exercised, if other process of the court is adequate for enforcement of the payment of alimony. Regardless of the extent to which a court should properly withhold exercise of the power to punish for a contempt in the enforcement of...