State ex rel. Cahn v. Mason

• Decision Date: 14 October 1941
• Citation: 4 So.2d 255,148 Fla. 264
• Court: Florida Supreme Court
• Parties: STATE ex rel. CAHN v. MASON, JUDGE, et al.

4 So.2d 255

148 Fla. 264

STATE ex rel. CAHN v. MASON, JUDGE, et al.

Florida Supreme Court

October 14, 1941

J Montrose Edrehi, of Pensacola, for petitioner.

John M Coe, of Pensacola, for respondent.

BUFORD, Justice.

On the 19th day of February, 1941, an order was entered by the Court of Record of Escambia County, Florida, which was inter alia, as follows:

'Ordered Adijudged and Decreed that the bonds of matrimony now and heretofore existing between the Plaintiff, Barbara E. Cahn, and the Defendant, Albert B. Cahn, be and the same are hereby forever dissolved and the said parties are, and each of them is hereby forever freed from the duties and obligations thereof.

'And in accordance with the separation agreement attached to the amended bill of complaint, it is:

'Further Ordered, Adjudged and Decreed that the defendant Albert B. Cahn shall pay to the plaintiff Barbara E. Cahn as permanent alimony the sum of $56.00 on or before the 5th day of each month hereafter, beginning with the month of March, 1941, such payments to continue until such time as the plaintiff shall marry or die, and that the said Albert B. Cahn do further pay to the Citizens & Peoples National Bank of Pensacola, Florida, in restitution to the plaintiff of sums of money dissipated from her estate during the existence of their marriage, the sum of $50.00 and accrued interest upon those two certain promissory notes, one for the original principal sum of $5900.00 dated June 9, 1940, and the other for the original principal sum of $2000.00 dated August 17, 1940, executed by the parties hereto, and said payments to be made on the 15th day of each and every month hereafter, beginning with the month of February, 1941, until the full principal sum and all accrued interest thereon shall have been paid. And that the said defendant be and he is likewise decreed to pay the premium on two certain policies of life insurance aggregating $15,000.00, deposited with the Citizens & Peoples National Bank as Trustee, under the terms of the aforesaid separation agreement attached to the bill of complaint, until such time as said policies may mature or the aforesaid indebtedness be fully paid, it being the intent of this provision that said policies shall be continued in full force and effect as further and additional security for the retirement of the indebtedness heretofore described;'.

The defendant Albert B. Cahn paid the alimony in the sum of $56 per month until the plaintiff in the divorce suit Barbara E. Cahn remarried. So he did not become in arrears in the payment of alimony but he failed to pay the instalments of $50 per month to the Citizens & Peoples National Bank of Pensacola.

On September 10th, 1941, Barbara E. Anderson (nee Cahn) filed her suggestion in the Court of Record of Escambia County that Albert B. Cahn should be adjudged in contempt of court for failure to pay the instalments due to the Bank and thereafter the Honorable Ernest E. Mason, Judge of the Court of Record of Escambia County, Florida, on the 13th day of September, 1941, entered his order as follows:

'This cause coming on to be heard upon the sworn petition of plaintiff for a rule to show cause and it appearing therefrom that the defendant has wilfully neglected to pay the sum of $439.83 due under the final decree of this court hereinbefore entered although he has capacity so to do, and it further appearing from the oral testimony offered in addition to said petition that the defendant has made no payment upon said decree since April 29, 1941, save that he delivered on May 4, 1941, a check for $106.25 which has been and still is dishonored, and that he has endeavored to impair the securities deposited in accordance with said decree umpartially to assure its performance, it is:

'Ordered and Decreed that the said Albert B. Cahn do appear before this Court at the Courthouse of Escambia County, in Pensacola, Florida, at 9:00 o'clock A. M. on the 29th day of September, A.D. 1941, then and there to show cause why he should not be adjudged in contempt for failure of compliance aforesaid and punished accordingly.'

Thereafter, on the 30th day of September the Honorable Ernest E. Mason as Judge of the Court of Record of Escambia County, Florida, entered the following order:

'This cause coming on to be heard upon rule to show cause and defendant's sworn return thereto, and the court having heard the evidence and argument of counsel, finds that the defendant has shown no satisfactory cause for non-compliance with the final decree herein, it is therefore:

'Ordered Adjudged and Decreed that the defendant, Albert B. Cahn, be and he is hereby adjudged in contempt of this court for failure to pay $439.83 and that for his said contempt he be forthwith committed to the custody of his counsel for a period of 72 hours, thereafter unless purged of said contempt to be committed to the Sheriff of Escambia County and confined in the county jail thereof for a period of 30 days, or until he shall sooner have purged himself of the contempt by the payment...