Hornsby v. Hornsby

• Decision Date: 11 July 1938
• Docket Number: 14719.
• Citation: Hornsby v. Hornsby, 187 S.C. 463, 198 S.E. 29 (S.C. 1938)
• Parties: HORNSBY v. HORNSBY.
• Court: South Carolina Supreme Court

198 S.E. 29

187 S.C. 463

HORNSBY v. HORNSBY.

No. 14719.

Supreme Court of South Carolina

July 11, 1938

Appeal from Richland County Court; A. W. Holman, Judge.

Action by Maly Hornsby against Myrtine Hornsby for support and separation. From certain orders, defendant appeals.

Reversed and remanded. Norbert A. Theodore, of Columbia, for appellant.

John E Edens, of Columbia, for respondent.

STABLER Chief Justice.

The appeal in this case is from an order of Judge Holman, dated January 28, 1938, and from several prior orders made by him in the cause. The action was commenced by the plaintiff, the wife of the defendant, on or about September 1, 1936, and is "one for support and separation." It was alleged in her complaint, among other things, that she and Myrtine Hornsby were married in 1902, and that they have two children, both of whom are living and are of age; that the plaintiff was sixty-one years old and unable to earn her own living, while her husband was fifty-eight years of age and was earning approximately $35.00 per week; that "for several years past the defendant has failed to provide a home and support for the plaintiff, and has spent all of his income on himself and other women;" and that he, without just cause or reason, had deserted her, and since the time of such desertion had failed to furnish her with sufficient money "for the necessities of life," giving her from time to time after he left her the totally inadequate sum of $5.00 per week. She demanded judgment as follows: 1. That the defendant be required to pay her a reasonable sum each week as alimony for her support and maintenance, and to pay her counsel a fair amount as attorney's fees. 2. That pending the outcome of this suit, the defendant be made to pay her a reasonable sum for her support.

The county judge, upon the verified complaint, issued a rule commanding the defendant to show cause on September 10, 1936 why he should not be required to pay the plaintiff "a reasonable sum for her support and maintenance and counsel fees." By way of return and answer, the defendant alleged, inter alia, that Mrs. Hornsby, his wife, had deserted him "without any excuse whatsoever and that she had refused to live with him at the home which he selected." The matter was duly heard by Judge Holman who issued an order on September 11, 1936, in which he decreed that the defendant should pay the plaintiff, as temporary maintenance and support, the sum of $10.00 per week, and that he should also pay her attorney, in installments of $2.00 per week, a fee of $25.00. From the date of this order to January, 1938, as disclosed by the record, the defendant was brought before the county judge several times, and was twice adjudged in contempt of court because of his failure to make some of the weekly payments, as required. An order of September 8, 1937, one of those issued during the period mentioned, directed how the weekly installments then in default should be paid by the defendant, and provided that he should be committed to jail upon his failure to make such payments. Leave was granted the plaintiff to apply for any additional orders necessary to carry the decree into effect.

On January 22, 1938, the plaintiff filed with the court her verified petition, in which she alleged that the defendant had not complied with the order of September 8, 1937, and asked that such order be put into effect. Thereupon, Judge Holman issued a rule requiring Hornsby to show cause before him on January 26, 1938, why he "should not be adjudged in contempt of Court." In his return thereto, the defendant attempted to justify his failure to pay some of the weekly installments directed to be paid, claiming that the amount was too large, and requested that "the issues of facts raised by the pleadings * * * be submitted to a jury for determination."

In his order of January 28, 1938, made in pursuance to the hearing had, the county judge said: "This matter has been pending before me for some seventeen months, and I have heard the case on the merits on three separate occasions and have also adjudged the said Myrtine Hornsby in contempt of Court on two occasions. It appears that the defendant has ignored the orders of this Court and to a certain extent in a rather disrespectful manner. I feel that the case has been sufficiently tried, and the patience of this Court has been tried to more than a reasonable extent with this defendant." He then decreed that Hornsby should pay the plaintiff five-twelfths of his weekly salary, commencing as of January 29, 1938, and that his employer, the Columbia Lumber & Manufacturing Company, should deduct such amount from defendant's salary each week, when same became due and payable, and pay it to plaintiff's attorney. It was also ordered how and when Hornsby should pay the sum of $27.00, then in arrears. The defendant was adjudged in contempt of court, and the sheriff was directed to take him into custody and incarcerate him in the county jail. It was provided, however, that if the payments decreed should be promptly made, the provision of the order as to contempt be held in abeyance, but if the payments were not made as directed, then such provision would be enforceable upon the certificate of plaintiff's attorney to the sheriff, to that effect. The Columbia Lumber & Manufacturing Company was permitted to interpose any objection it might have to the order. The defendant was given ten days in which to submit authorities as to his claim that he was entitled to a jury trial; and it was decreed that the cause be held open on that point for such period of time, "and if the authorities are not sufficient then this order for alimony is made permanent, and the case can be closed and judgment finally entered."

While the exceptions are eleven in number, counsel for appellant, defendant below, states and argues but five questions. These we will now consider.

Alimony is based upon the common-law obligation of a husband to support his wife; and, as stated in 19 C.J. 201, it "is either temporary, which is payable during the pendency of the suit, or permanent, which is payable after determination of the suit during the joint lives of the parties." And "while temporary alimony may be allowed without inquiry into the merits of the case, yet a prima facie case must be shown in behalf of the wife." 19 C.J. 210; Messervy v. Messervy, 80 S.C. 277, 61 S.E. 442, 444. In Smith v. Smith, 51 S.C. 379, 29 S.E. 227, the court, in holding that the right existed in this State to grant suit money and temporary alimony, pointed out that, (page 229) "one of the modes of enforcing compliance with an order for alimony pendente lite is by an attachment for contempt."

In regard to the first question, the appellant seems to claim that the county judge, in ordering the defendant to be placed in jail for contempt of court, did not correctly follow the rules of law governing in contempt proceedings. He wants to know whether a court may issue an order directing the sheriff to commit a party to jail on the certificate of an attorney, or may commit a party in contempt without a rule to show cause or an affidavit to support such a rule.

As we gather from the record for appeal, the court had much trouble in getting the appellant to obey its orders in the matter of the payment of the temporary alimony directed to be paid by him; and the county judge, instead of committing the defendant to jail at once for contempt of court, as he could have done, gave him further time in which to make such payments. In perhaps two of these orders, the Judge did direct that, if the defendant failed to comply with the court's order in the matter, he should be placed by the sheriff in the county jail upon the certificate of the plaintiff's attorney showing that the payments had not been made as directed, such certificate to be made to the sheriff by the attorney. This was not the correct procedure. If the judge, out of the goodness of his heart, chose to indulge the defendant, as he did, he alone could determine, upon a proper showing, whether the appellant should be committed to jail for having failed to obey the court's order. It was within the realm of possibility that something might have happened during such period of time which made it impossible for Hornsby to make the payments as directed. However, as it is not made to appear that the defendant was placed in jail by such a method, he has no ground for complaint. As to the latter part...