Kephart v. Kephart

Citation193 F.2d 677,89 US App. DC 373
Decision Date11 October 1951
Docket NumberNo. 10446.,10446.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Jesse Lee Hall, Washington, D. C., for appellant.

N. Meyer Baker, Washington, D. C., with whom John F. Lillard, Washington, D. C., John F. Lillard, Jr., Hyattsville, and Joseph A. Barry, Washington, D. C., were on the brief, for appellee.

John H. Burnett, Washington, D. C., appointed by this Court as amicus curiae, urged reversal.

Jean M. Boardman, Washington, D. C., appointed by this Court as amicus curiae, urged reversal.


Writ of Certiorari Denied March 3, 1952. See 72 S.Ct. 557.

WILBUR K. MILLER, Circuit Judge, with whom Chief Judge STEPHENS and Circuit Judges CLARK, PRETTYMAN and PROCTOR concur:

In this case the United States District Court for the District of Columbia denied a divorced wife's motion that her former husband be held in contempt for failing to pay alimony which the court had theretofore decreed to her; and refused to award her a "money judgment" against him for installments of alimony which had become due and were unpaid, despite the fact that the original decree under which the installments accrued had never been modified or set aside.

The wife's appeal from the District Court's action presents the following questions which are important in this jurisdiction:

1. May the trial court in its discretion refuse to punish for contempt one who disobeys its order to pay alimony; if so, was the discretion properly exercised, or abused, in this case?

2. Is a decree directing future payment of alimony in itself a "money judgment," either originally or with respect to each installment as it becomes due; or is there no enforceable judgment for money in the wife's favor until, after the accrual of installments, an additional decree has been entered awarding judgment thereon, pursuant to her motion therefor accompanied by a showing of the amount which has become due and which has not been paid?

3. Having awarded alimony to be paid periodically, has the District Court the power to modify or remit installments thereof which have become due and payable?

Before discussing these questions, we shall relate the history of the case. Some fifteen years ago the District Court granted a divorce to Irma N. Kephart and ordered the husband to pay $75 per month for the support of the wife and two infant daughters. That allowance of alimony has never been modified or revoked.

Four days after the divorce was granted in 1936, the appellee-husband remarried and established a new home in Maryland. In 1937 he was held in contempt here for failing to pay alimony but purged himself by paying the amount then due; subsequently he paid occasional small amounts until March 22, 1940, after which date he paid nothing although, as we have seen, the award of alimony had not been modified or set aside.

After vainly trying for several years to get the assistance of counsel, Mrs. Kephart finally found an attorney who instituted suit for her in the Circuit Court for Prince Georges County, Maryland, the county of the appellee's residence, to recover installments of alimony which had accrued, under the decree of the District Court, after March 22, 1940. Kephart demurred to the complaint on the theory that the 1936 divorce decree of the District Court which awarded alimony was lacking in finality and therefore could not be enforced in the Maryland court under the full faith and credit clause. In support of the theory he cited our opinion in Franklin v. Franklin, 1948, 83 U.S.App.D.C. 385, 171 F.2d 12, where we held for the first time that the trial court has authority to set aside matured installments of alimony. Without a ruling on the demurrer, the case has "gone to the files" in Prince Georges County and has not been calendared by either party

In 1949 Mrs. Kephart entered in the original divorce action in this jurisdiction the motion which gave rise to this appeal. She asked for a contempt citation and for judgment for accumulated arrearages of alimony in the sum of $8,100.

The appellee responded to appellant's motion as though it were an order to show cause. He filed in opposition his own affidavit that he removed to Prince Georges County, Maryland, and there remarried; that he and his second wife have two sons; that in 1942, when the younger of the two children of his first marriage attained her majority, he believed his former wife no longer needed his financial support so he ceased making alimony payments to her. He swore that from such cessation until early in 1948 he heard nothing from appellant and that she made no demands upon him; but that in May, 1948, he was served with process in the suit in the Circuit Court of Prince Georges County for a money judgment based upon his failure to pay alimony. He averred under oath that he was currently earning approximately $5,000 per year and had "two pieces of investment property" on which he was making payments.

Thus the appellee-husband asserted laches as a defense, contending that the wife's delay in seeking to collect the arrearages, coupled with changes in his own circumstances, constituted in equity a bar to relief. He also asked in effect that the court reconsider the allowance of alimony with respect to installments already matured because the two daughters of the first marriage had long since come of age, and because he had had for some time the new burden of supporting two minor children by the second marriage.

It should be remembered that in denying appellant's motion, the District Court (a) declined to punish or even to cite appellee for contempt of court, and (b) refused to award to the appellant a "money judgment" for installments of alimony amounting to $8,100 which had become due under the original decree and were admittedly unpaid.


We shall first consider whether the District Court has the discretion to refuse to cite or punish for contempt one who is delinquent in alimony payments; and, if so, whether the court was correct in its refusal here, under the defenses asserted by Kephart and in the circumstances shown.

Under subsections 410 and 411 of Title 16 of the District of Columbia Code (1940), when a divorce is granted to the wife, the court has authority to decree permanent alimony and to enforce obedience to its order in regard thereto by "imprisonment for disobedience." This authority to punish for contempt is not required by the statute to be invariably exercised. When a proper defensive showing is made by a delinquent defendant, such as unavoidable casualty, the court may refuse to punish him. But such refusal does not release the delinquent from civil liability to pay the amounts which have become due. Caffrey v. Caffrey, 1925, 55 App.D.C. 285, 4 F.2d 952.

Did the District Court act within its discretion in refusing to punish Kephart for contempt? Not under his plea of laches, for two reasons which follow:

1. A wife's delay in seeking to enforce payment of alimony does not destroy or affect the husband's obligation to obey the court's order. That obligation does not depend upon the payee's diligence in trying to collect. Contempt is shown by an inexcusable failure to pay what the court ordered; it is not limited to a failure to pay sums which the wife promptly demands.

2. The delay here did not amount to laches, as it was sufficiently explained and excused by the wife's illness, poverty and difficulty in obtaining counsel, coupled with the husband's non-residence.

Was the court's refusal to hold Kephart in contempt jusified by the conditions and circumstances shown by his defensive affidavit? We think not. He made no showing such as that in the Caffrey case. He relied upon the fact that his first set of children had become of age, and the fact that he had acquired a second set which he must support. Neither reliance was sufficient to save him from contempt.

As to the first, we have held that an allowance to a wife, under § 16-411 of the District Code, of "permanent alimony sufficient for her support and that of any minor children whom the court may assign to her care," is to be treated as alimony payable to the wife and is not contingent on the minority of the children. Lockwood v. Lockwood, 1947, 82 U.S.App. D.C. 105, 160 F.2d 923; Miller v. Miller, 1941, 74 App.D.C. 216, 122 F.2d 209. As to the second reliance, Kephart erred in thinking his voluntary assumption of new obligations by marrying a second time excused him from the primary obligation imposed by the court's award of alimony. Kelly v. Kelly, 1943, 78 U.S.App.D.C. 97, 137 F.2d 254.

Kephart could have applied to the court for a modification or remission of the award of alimony, due to changed conditions or circumstances, but until such an application had been made and granted, he had to obey the court's order. He could not take the law in his own hands, decide for himself that he need no longer obey, and then advance his own decision as justification for his disobedience. The District Court erred in refusing to exercise its discretion to punish him for contempt upon the showing he made.

We think, however, that upon remand Kephart should be cited for contempt and a hearing should be had as to the sufficiency of any defense which he may present. He may show grounds other than those presented in his affidavit heretofore filed which would justify the court in exercising its discretion to refrain from punishing him. We hold no more than that the defensive affidavit which Kephart filed was not sufficient to justify the court in refusing to penalize him for his disobedience.

We think it proper to add that the procedure in the District Court on appellant's motion was incorrect. As we have said,...

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