Staples v. Staples

• Decision Date: 01 May 1894
• Citation: 58 N.W. 1036,87 Wis. 592
• Parties: STAPLES v. STAPLES.
• Court: Wisconsin Supreme Court

87 Wis. 592

58 N.W. 1036

STAPLES

v.STAPLES.

Supreme Court of Wisconsin.

May 1, 1894.

Appeal from circuit court, Juneau county; A. W. Newman, Judge.

Contempt proceedings to enforce payment of alimony awarded Emma Staples in a decree of divorce against Eugene W. Staples. From a judgment finding him guilty of contempt, defendant appeals. Affirmed.

March 25, 1892, plaintiff obtained a judgment of divorce a vinculo against the defendant. By the judgment the plaintiff was awarded the custody of an infant child, and the title of certain real estate of the defendant's was transferred to the plaintiff; and defendant was adjudged to pay plaintiff, as alimony, $150 annually, in equal quarterly installments, also the sum of $32, temporary alimony, which had been ordered pendente lite, but had not been paid. The defendant paid none of the sums, and in September, 1893, upon certain affidavits, a motion was made that defendant be punished for contempt in not paying said sums, the whole amount then due being $257. The affidavits showed due demand, and the defendant's refusal to pay; also, that he stated, in foul and abusive language, that he should never pay anything on the judgment; that defendant is a strong, able-bodied man, and runs a large farm, keeping a large stock of cattle and horses, but claims that he is doing it all for his mother. The defendant filed an affidavit showing that he had no property, real or personal, but that he was in debt, and could borrow no money. He did not deny that he was an able-bodied man, nor that he was running a farm, nor did he deny that he had stated he would never pay anything on the judgment. Upon these affidavits the circuit court made an order reciting that defendant had in no way controverted the fact of his ability, as an able-bodied man, to earn and accumulate money, and finding that he was guilty of contempt in refusing to pay the amounts due under the judgment, and ordering that he be committed to jail until he should pay said sum of $257 and costs, unless sooner discharged by the court. From this order, defendant appealed.W. S. Stroud, for appellant.

H. W. Barney, for respondent.

WINSLOW, J. (after stating the facts).

The broad ground is taken by the appellant that the court has no power to enforce, by contempt proceedings, payment of permanent alimony ordered to be paid by a final judgment of divorce. His premises are: First. A judgment for alimony may be enforced by execution. Rev. St. § 2367. Second. Contempt proceedings for the nonpayment of money are only authorized where execution cannot be awarded. Id. § 3477, subd. 3. Hence, in the present case, the judgment for alimony being capable of enforcement by execution, contempt proceedings will not lie.

Were the judgment here a judgment for a gross sum, payable at once, it might undoubtedly be docketed as a money judgment, and execution might issue to enforce it. Keyes v. Scanlan, 63 Wis. 345, 23 N. W. 570. In that case the argument would be strong that contempt proceedings could not be resorted to, and the position would not be without authority. Lansing v. Lansing, 4 Lans. 377. This decision, however, has been seriously questioned in New York. Strobridge v. Strobridge, 21 Hun, 288. But conceding the correctness of the doctrine, it cannot apply to the present case. Execution can be issued only on a judgment which has been docketed. Rev. St. §§ 2968, 2969. It does not appear in the present case that any judgment has been docketed for any of the installments of alimony. In fact, there seems to be no provision of law for such docketing....