State ex rel. Roberts v. Morgan Circuit Court, 31101

• Decision Date: 12 January 1968
• Docket Number: No. 31101,31101
• Citation: 232 N.E.2d 871,249 Ind. 649
• Parties: STATE of Indiana ex rel. George L. ROBERTS, Relator, v. The MORGAN CIRCUIT COURT, and the Honorable John E. Sedwick, Jr., Presiding Judge, Respondents.
• Court: Indiana Supreme Court

Page 871

232 N.E.2d 871

249 Ind. 649

STATE of Indiana ex rel. George L. ROBERTS, Relator, v. The MORGAN CIRCUIT COURT, and the Honorable John E. Sedwick,

Jr., Presiding Judge, Respondents.

No. 31101.

Supreme Court of Indiana.

Jan. 12, 1968.

Rehearing Denied Feb. 23, 1968.

Ferdinand Samper, Indianapolis, for relator.

Frank W. Morton, Morton, Tumbove & Rogers, Indianapolis, for appellee.

ORIGINAL ACTION

PER CURIAM.

This matter arose by way of a petition for a writ of prohibition requested to be issued against the Morgan Circuit Court prohibiting the respondents from taking any action for citation for contempt in the matter of George L. Roberts v. Aileen Roberts, Cause No. C66--C37 in the Morgan Circuit Court. Heretofore, on April 29, 1966 the defendant Aileen Roberts was granted an absolute divorce from the relator George L. Roberts and a judgment for divorce and alimony was entered on said date. By the terms of said judgment and agreement incorporated therein the relator was required to pay the defendant Aileen Roberts who had been granted her divorce on her cross-complaint the sum of $6,000.00 payable at the rate of $100.00 per month, and as further alimony payments the relator was required to pay thirty-six successive monthly mortgage payments commencing May 1966 on realty, the title of which was given to the defendant Aileen Roberts. As further alimony, he was ordered to pay certain indebtedness of the parties listed in the decree and agreement incorporated in the decree. On October 17, 1966 defendant Aileen Roberts filed her petition for citation for contempt alleging that he had failed to pay the above named creditors and that he had failed to make the above mentioned mortgage payments. Respondents issued an order to the relator to appear on November 5, 1966 to show cause why he should not be punished for contempt of court. On November 14, 1966 a motion to quash was made by the relator and pointed out to the court that the court had no jurisdiction to entertain such petition. On January 6, 1967, after oral argument, the relator's motion to quash the citation for contempt of court was overruled. On January 13, 1967 an order was issued for the relator to appear on January 28, 1967 to show cause why he should not be punished for contempt in failing to make the alimony payments.

The relator has based his entire argument on the case of Marsh v. Marsh, (1904) 162 Ind. 210, 70 N.E. 154. In this case, over fifty years ago, on March 1, 1902 the Wells Circuit Court in a decree of divorce had ordered the husband to pay $4.00 weekly for support of his wife until the further order of the court. The court held that judgment for alimony is not enforceable by contempt proceedings.

In an article in the Indiana Law Journal, 29 Ind.L.J. 461 entitled Alimony in Indiana: Traditional Concepts v. Benefits to Society, the Marsh case supra was cited to the effect that it is consistently ruled that alimony must take the form of a money judgment. The article further indicated that under the Acts 1949, as amended, the power of the court to determine the form and the method of payments was expanded. See Burns' Ind.Stat. § 3--1218, 1946 Repl. (1966 Supp.) (Acts 1873, ch. 43, § 22, p. 107; 1949, ch. 120, § 3, p. 310) which reads as follows:

'The court shall fix the amount of alimony and shall enter a judgment for such sum, and specify the character and method of payment, which in his discretion he deems to be just and proper under all of the evidence, including any valid separation agreement which may have been introduced into evidence. In determining the character of the payments of the alimony the court may require it to be paid in money, other property, or both, and may order the transfer of property as between the parties, whether real, personal or mixed and whether title at the time of trial is held by the parties jointly or by one of them individually. In determining the method of the payment of the alimony the court may require that it be paid in gross or in periodic payments, either equal or unequal, and if to be paid in periodic payments the court may further provide for their discontinuance or reduction upon the death or remarriage of the wife, and, in his discretion, the court may further provide for such security, bond, or other guarantee as shall be satisfactory to the court for the purpose of securing the obligation to make such periodic payments. Said judgment shall be a...