Snider v. Snider

• Decision Date: 15 May 1940
• Docket Number: 13137.
• Citation: 9 S.E.2d 654,190 Ga. 381
• Parties: SNIDER v. SNIDER.
• Court: Georgia Supreme Court

9 S.E.2d 654

190 Ga. 381

SNIDER v. SNIDER.

No. 13137.

Supreme Court of Georgia

May 15, 1940

Rehearing Denied June 14, 1940.

Syllabus by the Court.

The record does not show conclusively and as a matter of law that the husband was unable to comply with the verdict and judgment requiring him to pay the sum of $6.50 per month as alimony for the support of his minor child; and consequently the order adjudging the defendant to be in contempt cannot be disturbed by this court.

Mrs Snider sued her husband, T. C. Snider, for divorce, temporary and permanent alimony and attorney's fees, and prayed that the custody of a minor child, Katherine, be awarded to her. On interlocutory hearing, the judge awarded $12 per month for support of the plaintiff and and the minor child and $25 as attorney's fees. The husband excepted, and the judgment was affirmed. Snider v. Snider, 182 Ga 592, 186 S.E. 562. Later, on application of the wife, the court issued a rule nisi, requiring the husband to show cause why he should not be attached for contempt for his failure to pay temporary alimony, as required by the previous order. The rule was made absolute, the husband again excepted, and this judgment was also affirmed. Snider v. Snider, 182 Ga. 701, 186 S.E. 723. The trial of the application for permanent alimony resulted in a verdict disallowing alimony for the support of the wife, but finding against the husband and in her favor $6.50 per month for the support of the minor child. The wife's motion for a new trial was overruled, and she excepted. The judgment refusing a new trial was affirmed. Snider v. Snider, 183 Ga. 229 187 S.E. 861. During the trial on the question of permanent alimony, the plaintiff's attorney made a motion for allowance of fees additional to the $25 previously awarded on the hearing for temporary alimony. To an order sustaining that motion the husband excepted, and the judgment was affirmed. Snider v. Snider, 183 Ga. 734, 189 S.E. 512. The case is now before this court for the fifth time. On August 10, 1939, Mrs. Snider again filed an application for an attachment for contempt, complaining that the husband had failed to pay the permanent alimony for the use of the child as fixed by the verdict and judgment. She alleged that the defendant was required to pay $6.50 per month for the support of the child, but that the payments were to be made quarterly on the 19th day of May, August, November, and February, and that he had failed to make the quarterly payment due on February 19, 1939, except that he had paid $1.50 of the amount due at that time, and that he had made no subsequent payments in any sum. A rule nisi was issued, and a response was filed. On the hearing the judge rendered a judgment making the rule for contempt absolute, and the husband excepted.

Paragraphs 2, 3, 4, and 5 of the application for the attachment alleged recovery of the judgment for alimony as stated, payments made and balance due, custody and support of the child by the applicant, request of the defendant for payment, and his ability to pay 'if he would make the proper effort.' Paragraph 5 alleged that: 'He has not been released from liability [for payments] but is still liable for them.' In paragraph 6 it was alleged that petitioner has been put to the expense of an attorney's fee of $10 'to have this petition brought for the collection of the amount now due her by defendant.' Regarding all of these averments, the defendant alleged in his response: 'That for want of sufficient information defendant can neither admit nor deny the allegations contained in paragraphs two, three, four, five, and six of plaintiff's petition for order nisi.' The response further alleged, among other things, that the defendant is unable to make the payments, owing to his poverty; that he is unable to do manual labor, as he is suffering with a hernia; and that he is uneducated and is not suited for any kind of work except manual labor. The response, although introduced in evidence by the defendant, was not positively verified, the oath subscribed and attached thereto being simply that the facts stated therein were true and correct to the best of the respondent's knowledge, information, and belief.

At the hearing the defendant testified: 'I am physically unable to do manual labor, on account of suffering from a hernia or rupture. I am very frail and delicate and weigh only 115 pounds. I am living in the house with my sister, Mrs. Mollie Ulm, and she is supporting me. I have not worked in several years, and I am not able to work at all. I am not earning anything at all, and have not for several years. I don't have a cent, and can't get it. I have tried to borrow money to pay this alimony, but I have no security to offer, and I can't borrow any. I don't own any property whatever, either real or personal, and have not owned any property for several years. I didn't intend any disrespect for the court in failing to pay the alimony, but my failure to pay is due wholly to my poverty and inability to work.' Cross-examination: 'I didn't buy a horse at a public sale in Sandersville recently, but the man I was with did. I used to be a telegraph operator, but the railroad is 'junked' now, and I can't get a job as telegraph operator. I have tried, but there are so many operators out of jobs that I can't get a job. If you think they are so easy to get, why don't you get me a job with the telegraph company so that I can pay this alimony? I am not able to work. I not only have a rupture, but I am suffering with low blood pressure. I did have some land about five years ago, but I owed so much that I deeded it to the person that I owed. I don't have any personal property at all--all of it was taken from me about four or five years ago under a mortgage foreclosure and sold before the court-house front door. I have a son that owns a little property, but he is twenty-three years of age and his own man. My sister has been paying alimony for me, but she has quit. She says she is having to support me, and that she is not paying any more alimony; that she has put all the money that she is going to in alimony. I stay around the house with her, but I can't work on account of my physical condition. I mean to say that I sit around the house all the time, and I don't work any on the farm; if I do anything at all it is running errands around the house. My son bought the Reese place in the last year or so, but I had nothing to do with his buying it. He paid very little on it, if anything--he just took over a farm after Mr. Reese died, and agreed to pay the Federal Land Bank what Mr. Reese owed them. After my mother's death I got a tract of land, not the tract next to Mrs. Due Davis. When we separated I owned a house and lot in Matthews, Ga., and had already bought a tract of land near there, but owed some on the farm--never finished paying for it, so it went back. I bought a little land during the twenty years that we lived together, but I didn't suddenly lost it. I was broke when we separated, and just gave it up, as all of my personal property was taken from me and sold under a foreclosure; so I just deeded the land for what I owed.'

The defendant introduced an affidavit of a physician, to the effect that on August 15, 1939, he examined the defendant and found his condition to be as follows: 'Left inguinal hernia. Hypotension (mild degree). That the said Snider is wholly unable to do manual labor.' The clerk of the superior court, as a witness for the defendant, testified that several years ago Mrs. Snider filed a suit against her husband and a sister, 'in an effort to cancel some deeds that she alleged Mr. Snider had made an effort to keep from paying alimony. Mrs. Snider was not able to cancel the deeds and the deeds still stand.' Mrs. Snider testified as follows: 'It is strange that he can't pay alimony. When we separated about five years ago he owned a house in Matthews, Ga., and a farm in Glascock County--now he claims he has not got anything. I lived with him for twenty years and worked like a slave and didn't get...