Kincaid v. Kincaid, 38264
| Decision Date | 25 February 1952 |
| Docket Number | No. 38264,38264 |
| Parties | KINCAID v. KINCAID. |
| Court | Mississippi Supreme Court |
Ernest Shelton, Jackson, for appellant.
John W. Prewitt, Vicksburg, for appellee.
Appellee brought suit against appellant for divorce, alimony, attorney's fees and child support. The chancellor denied her a divorce, denied alimony and attorney's fees, but allowed her $65 per month for support of the child. On appeal we reversed the chancellor, granted a divorce, allowed $60 per month alimony to the wife and $150 attorney's fees, and affirmed and $65 per month allowance for support of the child. See Kincaid v. Kincaid, 207 Miss. 692, 43 So.2d 108, 15 A.L.R.2d 667, decided November 28, 1949.
Since the above decision the husband has paid the $150 attorney's fee but has paid nothing on the award of alimony and child support. On December 4, 1950, Mrs. Kincaid filed a petition to have her husband cited to appear and show cause why he should not be adjudged in contempt of court and punished therefor. He answered the petition and admitted that he was in default as alleged but averred that he has been and still is financially unable to pay anything on the decree. He also filed a petition for modification of the decree. Upon the hearing the chancellor adjudged the husband in contempt of court for his failure to comply with the decree and remanded him to jail until he has purged himself of the contempt by paying the amount in arrears, and dismissed the petition for modification of the decree, from which action the husband appeals.
The original appeal bond was lost or misplaced by the chancery clerk and appellant has filed another appeal bond together with a motion for leave to substitute the same in lieu of the lost original and that motion is hereby sustained.
Appellant's argument is divided into four points but the same may be summarized generally into the contention that under the proof he should not have been adjudged in contempt and committed to jail. This necessitates a review of the evidence.
At the time of the first trial appellant was practicing his profession of dentistry in Vicksburg. Thereafter he moved from Vicksburg to his old home in Pelahatchie, Mississippi, where he took over the office of his deceased father who was also a dentist and which is situated in the yard of the residence occupied by appellant's mother with whom he now resides. This property is a part of his father's estate which has never been divided or distributed. The father left no will and there are three heirs to the estate upon which no administration has ever been had. He testified that he doesn't know whether he owns an interest in his father's estate,--'I just don't keep up with those things.' He had the old residence torn down and a new one built on the same lot, but said that his mother paid for this out of his father's estate. He said that he had no idea as to the value of his father's estate nor of what it consisted,--'Never heard it discussed.' He admitted that in the past two years he has had three new automobiles which cost around $6,000; he said that his mother bought these automobiles and paid for them out of his father's estate but put the title in the name of appellant's sister. At the time of the separation he owned some bonds but later cashed these; he could give no account as to where this money went except the general statement that he used it to defray expenses. He has maintained a bank account in the bank at Pelahatchie but made no disclosure as to the amount of this account nor how it was used. He admitted that some months he could have been paying $30 or $35 a month to the support of his child and promised that in the future he would try to pay that much but did not explain why he had not been making even these meager payments. He offered no explanation as to why he had not sooner petitioned the court for a modification of the decree.
Appellant claimed that he is suffering with trouble in his back and said that he is unable to carry on his profession. He testified that if he stands on his feet as much as thirty minutes his back hurts him so severly that he had to lie down for two or three hours and that the only work he does is emergency dental work,--extracting teeth and trying to relieve people with...
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James v. James, 97-CA-00242 COA
...alimony award constitutes a prior claim on his income. Gregg v. Montgomery, 587 So.2d 928, 932 (Miss.1991). In Kincaid v. Kincaid, 213 Miss. 451, 456, 57 So.2d 263, 265 (1952), the supreme court held that a husband could not ask for modification of the decree unless he could show that he fu......
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Dixon v. Dixon
...unclean hands because he was in arrears and failed to prove that he had paid Michelle all that he could. See Kincaid v. Kincaid , 213 Miss. 451, 456, 57 So.2d 263, 265 (1952) (holding that a payor in arrears may not obtain a modification unless he proves that "performance has been wholly im......
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Howard v. Howard, 2003-CA-01129-COA.
...be specific: A husband is required to show what his earnings, his living expenses, and who his dependents are. Kincaid v. Kincaid, 213 Miss. 451, 456, 57 So.2d 263, 265 (1952). Yet, "the payment of other debts or expenses will not excuse or justify his default, unless such payment was neces......
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Gregg v. Montgomery
...574 So.2d at 1380; Morris, 541 So.2d at 1042-43; Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983). Donnie cites Kincaid v. Kincaid, 213 Miss. 451, 57 So.2d 263 (1952), to support the proposition that he was financially unable to comply with the divorce decree. In Kincaid, the Court quoted......