Roper v. Roper

• Citation: 242 Ky. 658
• Parties: Roper v. Roper.
• Decision Date: 08 March 1932
• Court: United States State Supreme Court — District of Kentucky

Page 658

242 Ky. 658

Roper v. Roper.

Court of Appeals of Kentucky.

Decided March 8, 1932.

1. Divorce. — Divorce proceedings are within equity courts' exclusive cognizance.

2. Divorce. — Equity courts may enforce their orders and decrees in divorce proceedings by summary mode, attachment, and imprisonment for contumacy (Ky. Stats., sec. 1663).

3. Divorce. — Disobedience of equity court's orders in divorce proceeding is constructive or consequential contempt, often called civil contempt, as distinguished from criminal contempt (Ky. Stats., sec. 950-1).

4. Divorce. — Chancellor's refusal to commit party to jail for contempt in disobeying order in divorce proceeding is reviewable by Court of Appeals.

5. Divorce. — Punishment of husband or father for contempt in failing to pay amount adjudged by divorce decree for child's support is remedial process, not strictly imprisonment for debt.

6. Divorce. — Divorced husband's failure to comply with decree requiring payments for child's support is prima facie evidence of contempt, casting burden on him to show inability to comply.

7. Divorce. — Divorced husband, bringing about his inability to make payments ordered for child's support or actually or potentially able to obey order, cannot plead inability as defense to charge of contempt.

8. Divorce. — Enforcement of court's order in divorce proceedings to make payments for child's support rests in chancellor's sound discretion.

9. Divorce. — Divorced husband's response to rule to show cause why he should not be punished for contempt in failing to pay amounts adjudged for child's support held insufficient.

The response admitted husband's default in payments of $20 monthly ordered by decree, but stated that he had sufficiently provided for child by keeping up life insurance policy in her favor at approximate cost of $200 a year, that his parents regularly provided money and clothing for child in aggregate sum of more than $300 a year, and that judgment was made pursuant to agreement with wife that it should allow him custody of child during vacation periods, but that she refused to permit him to have child.

10. Divorce. — Where husband's response to rule to show cause why he should not be punished for contempt was insufficient, he should have been permitted to amend response, and on failure to do so, should have stood committed until he purged himself of contempt.

Appeal from Warren Circuit Court.

R.W. KEENON for appellant.

O.M. SMITH for appellee.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

The Warren circuit court in 1926 granted a divorce to Margaret Roper, appellant, from O.P. Roper, appellee, and awarded her the custody of their infant daughter, but gave the father the right to see the child and have her visit him at reasonable times and under reasonable conditions. It was adjudged that he should pay the mother $20 a month for the support of the child until further orders of the court.

In 1930 Mrs. Roper asked for a rule against the father to show cause why he should not be punished for contempt for failing to pay any of that judgment save $100. In his response, the defendant admitted his default as respected the monthly payments, but stated that he had properly and sufficiently provided for his child by keeping up a $5,000 life insurance policy in her favor of an approximate cost of $200 a year, and that, in addition, his father and mother had regularly provided money and clothing for the child in the aggregate sum of more than $300 a year. He further alleged that the original judgment with respect to the allowance was made pursuant to an agreement with his wife that the judgment should provide that he should have the custody of the child during vacation periods, but that the plaintiff had refused to permit him to have her. He denied he was in contempt of court or that he was in any way more derelict in his compliance with the judgment than was the plaintiff. The court held the response insufficient, but stated in his judgment that the defendant was unable to pay the sum in arrears. That conclusion was doubtless reached upon information not disclosed by the record before us. The plaintiff then asked for an order of arrest, and moved that the defendant be confined in jail until he should comply with the judgment. That motion was overruled, and, from the refusal of the court to imprison the defendant on that account, this appeal is prosecuted.

The power of a court of equity to lay hold of the conscience of a defendant and compel him to do what is right has always been exercised by the English chancellors, and the power of the court in this state to proceed to carry into effect a judgment "according to the ancient practice of courts of chancery" is recognized by the statutes. Ky. Stats., sec. 1663; Rebhan v. Fuhrman 139 Ky. 418, 50 S.W. 976, 21 Ky. Law Rep. 17; Rudd v. Rudd, 184 Ky. 400, 214 S.W. 791. Divorce proceedings are within the exclusive cognizance of the courts of equity, and their judgments in respect thereto may be enforced by appropriate writs. They may enforce obedience to their orders and decrees by summary mode, attachment, and imprisonment for contumacy. Sebastian...