Leonard v. Leonard
Decision Date | 09 December 1960 |
Citation | 11 McCanless 609,207 Tenn. 609,341 S.W.2d 740 |
Parties | Anna Jackson LEONARD v. Byron LEONARD. 11 McCanless 609, 207 Tenn. 609, 341 S.W.2d 740 |
Court | Tennessee Supreme Court |
J. Mayes, Rogersville, for petitioner, Byron Leonard.
Phillips & Hale, Rogersville, for respondent, cross-petitioners, Anna Jackson Leonard.
The question for decision in this suit is whether or not a decree of contempt based on a petition for failure to pay installments of alimony is void because it contains no finding that the defendant was able to comply with the decree and wilfully refused to pay the amount in arrears. Our answer to this question is in the negative for reasons hereinafter expressed.
The wife sued her husband in 1956 for divorce and obtained a decree which among other things required the husband to pay $75 a month alimony. There were no children. On July 18, 1959, the wife filed her petition in which she made the original divorce bill and the decree based thereon part of this petition against the husband asking that he be declared in contempt of court because he was delinquent in the payment of three monthly installments.
The defendant answered this petition and admitted that he was in arrears as alleged, but averred his inability to pay for reason of the fact that he had remarried since the decree and had a wife and two children to support; that his wife had been sick and he owed doctor's bills and owed on a trailer in which they lived. He likewise asked that his answer be treated as a petition for reduction because of this remarriage, the children and a reduction in pay.
The Chancellor on this petition found that the defendant was in contempt and ordered him to pay the back three monthly installments of $225, or upon his failure to do so on a specific date he was to placed in jail.
The bill of exceptions which was preserved to this finding on the petition for contempt is not a transcript of the testimony taken, nor is it stated in narrative form, but is more or less a summation of the proof offered before the Chancellor by the respective parties. Under such a statement of facts, the way it is stated, it would be hard for anyone reading this record to properly exercise a sound judicial discretion as to whether or not the alleged contemnor was able to comply with the decree at the time the petition was filed or whether or not the payments of alimony should be reduced because of a change in circumstances. We do not comment on these facts one way or the other in view of our conclusion which will hereinafter be stated. Be that as it may, we suggest that the authorities cited by the Court of Appeals in its opinion on the question of reduction of alimony be seriously considered along with testimony offered in the case.
The petitioner here, the husband, says, and his argument is based upon authority, that the decree as brought to the Court of Appeals and consequently to this Court is void because it makes no finding that the defendant was able to comply with the decree. In support of this argument the petitioner cites Crowder v. Hayse, 9 Tenn.App. 55; Loy v. Loy, 32 Tenn.App. 470, 222 S.W.2d 873; and Chappell v. Chappell, 37 Tenn.App. 242, 261 S.W.2d 824. The first of these cases, the Crowder case, so held in unmistakable terms. This holding was based upon a statement in 6 R.C.L., page 537, which is carried in 12 Am.Jur., page 444, Section 78, which is: 'The judgment must show affirmatively the defendant's ability to comply with the order of the court.' In 6 R.C.L., as well as in American Jurisprudence, two cases are cited as authority for this statement, one a Federal case wherein the question arose in a bankruptcy proceeding in not complying with the order of that court, and the other is the case of Ex parte Robertson, 27 Tex.App. 628, 11 S.W. 669, 11 Am.St.Rep. 207. Our Court of Appeals case, the Crowder case, upon which this holding has been followed in the three Tennessee Appeals Reports, quotes extensively from this Texas opinion and relies strictly thereon. The Texas opinion is a well-reasoned opinion and based upon excellent authority. The trouble though is that the Texas opinion and our divorce cases have an entirely different procedural aspect. Under practically all the law the Texas opinion is correct in this State under a procedure of habeas corpus as was the Texas case.
The Texas case, in a few words, as that a summary judgment was taken against a Constable for not complying with certain statutory requirements required of him, in Texas, in serving certain papers, and as a result of not doing so under the statute a judgment was taken against this Constable. The order then requiring him to pay this sum did not state on its face that it was in the power of the defendant to perform the act required of him, and since the order did not so state it appeared that in placing him in jail for failure to pay this judgment that the order was beyond the jurisdiction of the court to render a judgment for such contempt and that this was necessary to the validity of the judgment, that is, that the man be able to do what he was ordered to do, and since the order did not so state these essential facts then it was void. It is noted though that the difference there and here is that in the Texas case there are numerous other things, and the reasoning of our opinions are likewise, the hearing was on a contempt, that is on the order or decree as it might be in this case, ordering the performance and the failure to do so committing him to jail. There was no record back of this order in the Texas case for consideration in the habeas corpus suit upon which the decree was based to show the reasons or facts of whether or not the man could comply with an order of the court and that he failed to do so.
In the case before us, that is a petition for contempt for failure to pay alimony, the order cannot be attacked by the brining of a habeas corpus proceeding based on the inability to comply with the order because the remedy here, where there is a holding of contempt, is by an appeal. State ex rel. Wright v. Upchurch, 194 Tenn. 657, 254 S.W.2d 748. Thus on the appeal there is the record which shows the facts and they are fully set forth upon which the contempt order is based. This would not be true in a petition for habeas corpus.
In an order for contempt or commitment for failure to perform a decree the order has embodied in it a mittimus to the Sheriff to take the person into custody and confine him to jail for failure to comply with this decree. Thus it is then from an appeal from that, the appellate court can review and does review the facts and see whether or not there is sufficient evidence to hold the person in contempt.
Section 23-904, T.C.A., provides:
'If the contempt consists in an omission to perform an act which it is yet in the power of the person to perform, he may be imprisoned until he performs it.'
In Cash v. Quenichett, 52 Tenn. 737, 741, the Court said:
The holding in the Crowder case of the Court of Appeals, supra, was recognized by this Court in an unpublished opinion in 1942 of Blackwood v. Blackwood, but was not commented on other than to say that the Court of Appeals had so held and that a certiorari had been denied. This Court though went on and determined the Blackwood wood case on the facts in the record, even though in that decree there was no holding that the party was able to pay and was wilfully in contempt, and found from the facts as shown in the record that it was not shown that he was able to pay and had failed to do it. This Court in this unpublished opinion likewise held that the Court of Appeals was in error in correcting this order of the lower court to so hold.
In State ex rel. Anderson v. Daugherty, 137 Tenn. 125, 191 S.W. 974, this Court very succinctly states the difference between civil and criminal contempts and said, inter alia:
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