Ramsay v. Ramsay

• Decision Date: 28 March 1921
• Docket Number: 21673
• Citation: 125 Miss. 185,87 So. 491
• Court: Mississippi Supreme Court
• Parties: RAMSAY v. RAMSAY

87 So. 491

125 Miss. 185

RAMSAY v. RAMSAY

No. 21673

Supreme Court of Mississippi

March 28, 1921

1. APPEAL AND ERROR. Matters not affecting appellant's rights not considered.

An assignment of error will not be considered, when the decision of the question it presents will have no effect upon the rights of the appellant.

2 DIVORCE. Chancery court may allow such alimony as is equitable and just with regard to circumstances.

The power of a chancery court to award alimony to a wife in a divorce proceeding is measured by section 1673, Code of 1906 section 1415, Hemingway's Code), and is to make such allowance therefor as may seem equitable and just, having regard to the circumstances of the parties and the nature of the case.

3 DIVORCE. Alimony may be awarded wife, although husband without property.

Alimony may be awarded the wife in a divorce proceeding, although the husband is without property and must support himself and pay the alimony out of his future earnings.

DIVORCE. Financial situation of parties should be considered.

When the husband is without property and must support himself out of his own earnings, and the wife is able to and does earn something by her own labor, that fact should be taken into consideration in determining what amount the husband should contribute to her support, unless the prospective earnings of the husband are sufficient in amount to make it equitable and just for him to bear the whole burden of the wife's support.

5 DIVORCE. Husband's failure to pay alimony under decree primafacie evidence of contempt.

The failure of the husband to comply with the decree providing for the payment of alimony is prima-facie evidence of contempt, to purge which the burden is upon him to prove his inability to pay.

6 DIVORCE. Husband should not be committed, when he can pay alimony only of future earnings.

A husband should not be committed to prison until he pays the arrears of alimony allowed to the wife, when he has no property and can pay the alimony only out of his future earnings.

7 DIVORCE. Husband not in contempt for failure to obtain sureties, when he is unable to do so.

Under section 1673., Code of 1906 (section 1415, Hemingway's Code), the court may, "if need be, require sureties for the payment of the sum so allowed" to the wife as alimony; but, when the giving of such sureties is ordered, the husband is not in contempt until he fails to obey the order, and not then if his failure to obey the order resulted solely from his inability to do so.

8. DIVORCE. Court awarding alimony may fine husband for willful failure to pay.

The court which rendered a decree awarding alimony to the wife may enter a fine against the husband for failure to pay the alimony, when the failure to pay was wilful.

HON. D. M. WATKINS, Chancellor.

APPEAL from chancery court of Forrest county, HON. D. M. WATKINS, Chancellor.

Bill by Cannie H. Ramsay against N. K. Ramsay for divorce. Decree for plaintiff. From an order committing defendant to jail for failure to pay alimony, he appeals. Reversed and rendered.

Reversed and remanded.

Robert L. Bullard, for appellant.

The court below erred in overruling appellant's motion to quash the information and citation; (2) It was error to fine the appellant fifty dollars; (3) It was error to commit appellant to jail for his failure to pay past due alimony, and for his failure to give security for it, and (4) It was error to decree against the appellant the payment of fifty dollars per month hereafter as permanent alimony.

As the same legal principle underlies all three of the first assignments above stated, for brevity they will be discussed together, that legal principle is stated as follows: Before one may be imprisoned for his failure to comply with a degree for payment of, or security for, alimony, it must first appear that he was able to comply with the decree, and contemptuously refused to do so, when he had the means of complying.

Authority in support of this is abundant and without conflict. I think, directly pertinent are the following: Hamblin v. Hamblin, 107 Miss. 113; Mills v. The State, 106 Miss. 131; Edminson v. Ramsay, 34 So. 455; Webb v. Webb, 37 So. 96; 13 Corpus Juris, 75, 76, 77.

The defendant should be discharged if the evidence leaves it doubtful as to his present ability to comply with the order. Such being the law it is submitted that each act of the lower court was glaringly erroneous. In the first place it was error to refuse to quash the information and citation. 3 Am. & Eng. Ency. Law 79; 13 Corpus Juris, pages 64, 65, 66, 67, 68.

But the evidence does not begin to show that it was ever humanly possible for him to have complied with the decree. Search the record and if one bit of evidence can be found tending to show that Ramsay had the means of complying with the decree, then let the case be affirmed and let him go back to jail. Appellee cannot point out any such evidence. It is like the history of aphidians in Erin, "There aint none."

The fine of fifty dollars is something new under the sun. I cannot find law or precedent for it; no, nor any against it, for that matter, as it seems never to have been resorted to before. I therefore pass it on to this court as something new.

(4) It is now submitted that it was error to decree the payment of fifty dollars or any sum, against appellant as permanent alimony. The whole question of alimony was before the court in this proceeding to be dealt with fully, and is therefore now before this court for review and correction, if the act of the lower court in decreeing alimony was erroneous.

In some jurisdictions nothing but property owned by the husband is considered in the allowance of alimony. In others it is held that income from earnings may be considered . It seems to be an open question with this court, but our statute, section 1673, Code 1906, makes it the duty of the court to have regard to the circumstances of the parties. If this court adopts the reasoning of those which restrict consideration of the circumstances of the husband to his property nothing more is to be said. But can it be said that Ramsay has, or ever had, any income upon which any allowance could be based? For more than four years he was in the army. When he came out he had but ninety dollars and his personal effects. Since that time he is shown not to have been able to earn enough to live and keep out of debt. Where income is made the basis of the allowance, "It must be estimated at the amount of the previous year." 9 C. J. 225. Out of his earnings his debts and obligations should be deducted. 19 Corpus Juris, 256. It is also held that the court should take into consideration the fact that the husband, in order to earn what he gets, is compelled to live more expensively than the wife. Louis v. Louis, L. R., 1 P. & D. 230.

Will the court now approve such showing as Mrs. Ramsay makes as a basis for the allowance of permanent alimony? Counsel has much to say about the needs of the wife and the obligations of the husband. These things are always present. Her needs do not seem to be any greater than his. She married him four months and sixteen days before he was discharged from the army, on the 9th of December, 1918. All this was before her eyes. He was empty handed and she knew it. She had notice to begin with of all she now complains.

It is now submitted that he should be discharged from custody, that the decree appealed from should be reversed and a decree entered here denying permanent alimony, at lease until such time as she may hereafter be able to show that she is entitled to it on account of his ability to pay it.

Currie & Currie, for appellee.

We deem it proper to observe that in our opinion the record of this appeal necessarily presents two questions: First, the question of the inherent power of a chancery court to compel and enforce obedience to its decree by compelling the execution of the bond required in the decree rendered in this hearing and committing the appellant herein to jail until such time as he should execute the bond or until the further order of the court.

Second, the separate question whether the chancery court has power to punish by fine or imprisonment the appellant herein for the contempt of the court, the court having decreed upon the hearing that the appellant herein had contemned the court and its valid orders and decrees by his failure, neglect and refusal to pay the alimony adjudged against him.

We assert that the first question herein stated is necessarily involved for the reason that the court on the rehearing did not nullify the original decree and enter a new one, but simply modified the original decree by reducing the penalty in the bond, and in the exercise of its inherent power to enforce and compel obedience to its decree, remanded the appellant herein to the custody of the sheriff of Forest county until such time as that he should execute the bond or until the further order of the court, this court bearing in mind that the petition of the appellant herein for his release from imprisonment thereunder, on a writ of habeas corpus, had just prior to the hearing in which this decree was rendered, been dismissed and the original decree under which he was originally imprisoned in default of such a bond remained in force and effect and was in full force and effect except to the extent to which it was modified by the decree in this case, that is, the penalty in the bond had been and was reduced to the amount of five hundred dollars and the other provisions of the decree authorizing the imprisonment remained unaltered or changed, and therefore the decision of this honorable court rendered on the 24th day of May, 1920 and reported in 84th Southern at page 455, was...