Hartwich v. Hartwich, 2258
| Decision Date | 11 June 1954 |
| Docket Number | No. 2258,2258 |
| Citation | 105 A.2d 821,82 R.I. 54 |
| Parties | HARTWICH v. HARTWICH. Eq. |
| Court | Rhode Island Supreme Court |
Isidore Kirshenbaum, Max Levin, Providence, for petitioner.
George L. Mihos, Harold W. Demopulos, Providence, for respondent.
This petition was brought by a wife to have the respondent, her former husband, held in contempt for noncompliance with the terms of a final decree of divorce. It was heard in the superior court together with respondent's motion to suspend payments thereunder on the ground of a change in circumstances. From a decree finding respondent in contempt but granting his motion to suspend all payments for an indefinite period, the petitioner has prosecuted her appeal to this court.
It appears that by a final decree of the superior court petitioner was granted an absolute divorce and was given custody of the minor child of the parties. The respondent was ordered to pay $20 weekly for the support of said child, alimony being expressly waived by petitioner. Subsequently respondent became in arrears in the payments under said decree in the amount of approximately $325, was adjudged in contempt, and under an amended decree was permitted to purge himself thereof by making weekly payments of $15 and an additional $5 which was to be applied to the allowances already accrued and unpaid. He was also directed to sell, or to turn over to petitioner's counsel for sale, an old automobile and to apply the proceeds on account of the past due allowances. The car was not sold or delivered by respondent as directed by the decree. The weekly payments thereunder were made until March 19, 1953, but from that date respondent has made no further payment.
The respondent, in excusing his noncompliance, testified that on March 20, 1953 he suffered an injury in the course of his employment and received no money whatever for some five weeks. He then received workmen's compensation for total incapacity at the rate of $28 per week from the date of the accident. However, he claimed that he had incurred other indebtedness for rent and living expenses which he was required to pay out of such income. He admitted he also was receiving $23 per week from the state's cash sickness benefit, so that at the time of hearing on the instant petition for contempt he was actually receiving $51 per week.
The respondent had married again and according to his testimony it required about $62 weekly for his necessary living expenses, excluding obligations to his present wife who is supporting herself. In this computation respondent included weekly items of $20 for meat and groceries and $16 for rent. He also explained that the weekly cash sickness benefit of $23 is 'only good for a couple of more weeks.'
The trial justice found that respondent was in technical contempt but declined to send him to jail on the theory that such action would be of no real benefit to petitioner or to respondent's present wife. After expressing belief that in the circumstances it would be contrary to public policy to have respondent necessarily getting further in contempt each week for nonpayment while he was injured, he granted the motion to suspend all payments under the decree 'until said respondent recovers from his injuries.' At the same time he explained: 'But that does not release him from his common law obligation to support the child.'
In the circumstances we cannot sustain the claim made by petitioner to the trial justice that the evidence required him to send respondent to jail for his contempt. Ordinarily such summary action is addressed to the sound discretion of the court, to be exercised in accordance with particular facts and findings as to the extent and willfulness of respondent's contempt for the authority and dignity of the court. Ciallella v. Ciallella, R.I., 103 A.2d 77. Nor can we say that if the trial justice believed respondent's testimony as to his financial resources and his other creditors, he necessarily exceeded his jurisdiction in modifying the decree so far as it suspended future payments, since that authority stems directly from general laws 1938, chapter 416, § 14. See also Asadoorian for Writ of Habeas Corpus, 48 R.I. 50, 135 A. 322.
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