Orr v. Orr

Decision Date15 December 1939
Citation141 Fla. 112,192 So. 466
PartiesORR et al. v. ORR.
CourtFlorida Supreme Court

Contempt proceedings by Gladys T. Orr, for use and benefit of Miller Walton, and others, against Morrison B. Orr, arising out of defendant's failure to obey final decree in an action of divorce with respect to the payment of certain attorneys' fees. From an adverse judgment, plaintiffs appeal.

Reversed and remanded with directions. Appeal from Circuit Court, Dade County; Paul D. Barns, Judge.

COUNSEL

Casey Walton & Spain, of Miami, for appellants.

Frank Smathers, of Miami, for appellee.

OPINION

PER CURIAM.

Suit was instituted by appellants on a rule to show cause why appellee should not be adjudged in contempt of court for failure to obey a final decree in an action of divorce adjudicated prior thereto. The relevant facts are briefly stated as follows:

By final decree of January 13, 1937, the court ordered the appellee, Morrison B. Orr, to pay into the registry of the court in sum of five thousand five hundred dollars as attorneys' fees allowed the wife in the divorce suit. (By the order five hundred dollars was designated as attorneys' fees pendente lite already allowed appellants Casey, Walton &amp Spain, but not yet paid; and five thousand was designated as the fee allowed appellant, Riley.)

On January 8, 1938, no part of the fees having been paid appellants filed a petition for a rule to show cause why the appellee should not be adjudged in contempt of court. Issue was finally joined and a hearing had on the rule. The lower court entered an order declaring that appellee owed the debt but discharged the rule. Appeal is taken from that order.

It is the contention of the appellee that it was within the discretion of the Chancellor to decline to enforce a decree under process for contempt, where the decree was solely for the paymnt of money.

Taken as an abstract statement of a principle of law, this is correct; but this principle is subject to certain limitations. As a general rule an applicant is not entitled--as a matter of right--to an order for commitment of a person for contempt, but the application is addressed to the discretion of the court. 13 C.J. 54, § 74.

The rule, however, is different where the person, sought to be cited for contempt, wilfully refuses to comply with the order of the court commanding him to pay alimony, costs and attorneys' fees. 'The usual method of enforcing an order in a divorce action allowing the wife costs and counsel fees is by means of a commitment for contempt of court * * *.' 17 Am.Jur. 460, § 583. See, also, 13 C.J. 302, § 693.

By statute (Sec. 4986, C.G.L.1927) the wife 'may in the bill for divorce, or by petition, claim alimony and suit money * * *.' The term 'suit money' is broad enough to include attorneys' fees and all costs of the divorce proceeding pendente lite. Smith v. Smith, 90 Fla 824, 107 So. 257.

That a citation for contempt would issue for a wanton or wilful failure to comply with an interlocutory order allowing attorneys' fees is apparent. See 17 Am.Jur. 460, supra. In principle, there is no difference between a flagrant violation of an interlocutory order of this nature and a similar disregard of a final decree awarding such fees for the assistance of counsel. See Smith v. Smith, supra, 90 Fla. text page 830, 107 So. text page 259, wherein Mr. Chief Justice Brown said:

'However, where an allowance for solicitor's fees pendente lite is prayed in the bill where the wife is the complainant, or in the answer or counterclaim or by petition where the wife is defendant, and the pleadings of the wife make out a prima facie case, either affirmative or defensive, and testimony is taken bearing on such matters, the faculties of the parties, etc., either on special hearing or during the taking of testimony on the main issues, we are not prepared to say that under our statute an order of the court allowing solicitor's fees, even though delayed until the final decree, would be in no case valid and enforceable, though disposition of such matters in the earlier stages of the cause, is both usual and the better practice.'

This court has further held that failure to pay alimony allowed by an order of court places the person so failing to comply with the order in contempt of court. Miller v. Miller, 91 Fla. 82, 107 So. 251, and, in dismissing the appeal in this case, the court said: 'The same laws and rules of practice and procedure will apply to this case which apply to contempts for violating an order of injunction.'

It inevitably follows, then, that such an arrant noncompliance with the order of the court in the final decree allowing costs and attorneys' fees may be made grounds for an adjudgment of contempt of court and the application for citation in such a case is not addressed to the discretion of the court, but is a matter of right to those who have a pecuniary interest in the enforcement of the decree. This court is well aware that this is a case of nonpayment of counsels' fees rather than failure to contribute to the support of the wife; but it should be borne in mind that it is the disobedience of the court's order, as well as the necessity of the spouse, which furnishes grounds for this process of court.

The appellee offered some testimony tending to show that he is at present unable to pay the award. This is not a necessarily proper defense to the application for the citation. Inability to pay is a valid defense at the time the decree was rendered, phelan v. Phelan, 12 Fla. 449; Haddon v. Haddon, 36 Fla. 413, 18 So. 779; Arendall v. Arendall, 61 Fla. 496, 54 So. 957, Ann.Cas.1913A, 662; but where no appeal has been taken from the order, it will stand inviolate, and no court has the power to subsequently reduce, change or modify it unless the court rendering the same specifically retained jurisdiction for that purpose. See Schouler, on Marriage, Divorce and Separation, vol. 2, pp. 1990, 1991, par. 1828; Kennard v. Kennard, 131 Fla. 473, 179 So. 660; Dickenson v. Sharpe, 94 Fla. 25, 113 So. 638; Gaffny v. Gaffny, 129 Fla. 172, 176 So. 68; Van Loon v. Van Loon, 132 Fla. 535, 182 So. 205.

The burden of proving inability is on the defendant, and as the final decree is an adjudication of his ability to pay, the only available defense for nonperformance is a...

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37 cases
  • Eddens v. Eddens
    • United States
    • Virginia Supreme Court
    • November 22, 1948
    ...and Separation, § 583, p. 460; 27 C.J.S., Divorce, § 261, p. 1045; Miller v. Baer, Judge, 114 W.Va. 566, 172 S.E. 612; Orr v. Orr, 141 Fla. 112, 192 So. 466; Van Dyke v. Van Dyke, 125 Ga. 491, 54 S.E. 537; Blackburn v. Blackburn, 201 Ga. 793, 41 S.E.2d 519; Davis v. Davis, 15 Wash.2d 297, 1......
  • Marger v. Miller
    • United States
    • Georgia Court of Appeals
    • May 4, 1973
    ...right of the attorney, in his own name, to enforce such a judgment. Compare Novack v. Novack (Fla.App.) 203 So.2d 187, 188; Orr v. Orr, 141 Fla. 112, 192 So. 466, with Hope v. Lipkin (Fla.App.) 156 So.2d 659; Simkins v. Simkins (Fla.App.) 249 So.2d 444. Nevertheless, in July 1971 the Florid......
  • Murray v. Murray
    • United States
    • Hawaii Supreme Court
    • December 19, 1978
    ...g., Hembree v. Hembree, 208 Ky. 658, 271 S.W. 1100 (1925), Bradshaw v. Bradshaw, 23 Tenn.App. 359, 133 S.W.2d 617 (1939), Orr v. Orr, 141 Fla. 112, 192 So. 466 (1939), reiteration In dicta, Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976), Stanhope v. Pratt (dicta) 533 S.W.2d 567 (Mo.Sup. E......
  • Faircloth v. Faircloth, W--506
    • United States
    • Florida District Court of Appeals
    • October 29, 1975
    ...did not bring any to the hearing and produced no evidence to substantiate his claims. We agree. In a somewhat similar case Orr v. Orr, 14 Fla. 112, 192 So. 466 (1939), the Supreme Court 'The appellee offered some testimony tending to show that he is at present unable to pay the award. This ......
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