State ex rel. McKee v. McKee

• Decision Date: 27 May 1964
• Citation: 237 Or. 583,392 P.2d 645
• Parties: STATE of Oregon ex rel. Virginia Ethel McKEE, Respondent, v. Marshall Roland McKEE, Appellant.
• Court: Oregon Supreme Court

Page 645

392 P.2d 645

237 Or. 583

STATE of Oregon ex rel. Virginia Ethel McKEE, Respondent, v. Marshall Roland McKEE, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted March 31, 1964.

Decided May 27, 1964.

Rollin E. Bowles, Portland, argued the cause for appellant. With him on the brief were Weiser, Bowles & Young, Portland.

Lamar Tooze, Jr., Portland, argued the cause for respondent. With him on the brief were Tooze, Powers, Kerr, Tooze & Morrell, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN and LUSK, JJ.

ROSSMAN, Justice.

This is an appeal by Marshall Roland McKee from a decree of the circuit court adjudging him in contempt for failure to pay a lump sum alimony payment decreed by the court and from an order denying his motion to modify the alimony provisions of the divorce decree.

Mrs. Virginia McKee, the respondent, was awarded a decree of divorce from Marshall Roland McKee on July 31, 1961. The decree awarded Mrs. McKee the family automobile, the residence, $375 per month alimony and $55,000 in a lump sum payment. Mr. McKee has complied with all provisions of the decree except payment of the $55,000.

Mrs. McKee instituted the contempt proceedings alleging Mr. McKee had failed to pay any of the $55,000. In that proceeding Mr. McKee moved to modify the decree by relieving him of the obligation to pay the $375 per month and by allowing him to discharge the $55,000 obligation at the rate of $500 per month. He asserts his assets are insufficient to pay the $55,000 and that if he is required to liquidate his holdings he will be unable to generate enough income to make payment of the $375 per month.

Appellant (Mr. McKee) offers seven assignments of error. The first six involve the single question of whether he is financially able to pay the $55,000 obligation demanded by the decree of divorce. The seventh asserts the court erred in finding that the sum of $750 is a reasonable amount to award Mrs. McKee as fees for her attorneys. Before approaching the first six assignments, we hold the seventh assignment of error has no merit.

Proof of the divorce decree and failure to comply with all its terms constituted a prima facie case of contempt. To overcome this prima facie case it was necessary for appellant affirmatively to show his inability to comply with the decree relative to payment of the amount ordered. The burden of proceeding with the evidence shifts to Mr. McKee, but the burden remains with Mrs. McKee to establish by the greater weight of the evidence there was a willful refusal to make the payment decreed by the court. State ex rel. Blackwell v. Blackwell, 181 Or. 157, 179 P.2d 278, 179 P.2d 1023.

It is not the policy of the law to punish a man for failure to do something which is impossible; consequently, Mr. McKee's inability to pay is a complete defense unless he has in bad faith rendered himself unable to do so. Nelson v. Nelson, 225 Or. 257, 357 P.2d 536, 89 A.L.R.2d 1.

We quote the following from the brief presented to this court by counsel for Mr. McKee, the appellant:

'While in this particular case the appellant has not sold his interest in the companies, the appellee is in effect insisting that he dissipate all of his capital assets, whatever they may be, in order that he pay the judgment. Even in the event the appellant were able to dispose of all his capital assets at market value, it is doubtful that they would realize enough after the income taxes were paid to pay the judgment and would leave him in the position of being only an employe and without any right to control or have a voice in the operation of the companies that now pay his salary, his only source of income.'

It appears from the quotation, as well as from the supporting facts presented by the record, that Mr. McKee is able to discharge at least a part of the $55,000 judgment.

We take the following from Mowery v. Mowery, 50 Tenn.App. 648, 363 S.W.2d 405:

'If the respondent is able to perform in part, he may be committed also until he performs to that extent. Gossett v. Gossett, 34 Tenn.App. 654, 241 S.W.2d 934.'

We take the following from Sappington v. Sappington, 245 Miss. 260, 147 So.2d 494:

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