State ex rel. Varner v. Janco, 13138

• Decision Date: 26 September 1972
• Docket Number: No. 13138,13138
• Citation: 191 S.E.2d 504,156 W.Va. 139
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Charles R. VARNER v. Joseph C. JANCO, Sheriff of Monongalia County.

Page 504

191 S.E.2d 504

156 W.Va. 139

STATE ex rel. Charles R. VARNER v. Joseph C. JANCO, Sheriff of Monongalia County.

No. 13138.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 6, 1972.

Decided Sept. 26, 1972.

Syllabus by the Court

1. 'Where, by an order of record, a court has abused its discretion in the award of alimony and counsel fees in a divorce proceeding, or a suit for separate maintenance, this Court, under its original jurisdiction in habeas corpus, will relieve the injured party from imprisonment on charges of contempt of court for failure to comply with such order.' Point 2 Syllabus, Sutherland v. Workman, 119 W.Va. 683. (195 S.E. 856)

2. In finding a person guilty of contempt for failing to comply with a former order of a court requiring the payment of alimony, the person's physical condition and the adverse effect that incarceration might have upon his health or life are factors to be considered by the court before ordering a person confined to jail for such contempt.

Robert W. Dinsmore, Morgantown, for relator.

David L. Solomon, Morgantown, for respondent Goldie Varner.

KESSEL, Judge.

In this habeas corpus proceeding instituted in this Court pursuant to its original jurisdiction, Charles R. Varner, the relator, seeks to compel the respondent, Joseph C. Janco, Sheriff of Monongalia County, to release him from custody. The writ of habeas corpus ad subjiciendum was granted by this Court on October 1, 1971, returnable on October 12, 1971, and the relator was released from custody upon his own recognizance in the amount of $100. The case was continued from time to time until September 6, 1972, when the case was submitted for decision upon the petition, the answer of Goldie Varner, and briefs of counsel, oral argument of counsel having been waived.

Counsel stipulated and agreed that the record and transcript of hearings held in the Circuit Court of Monongalia County in the divorce action, and hearings subsequent thereto, of Charles R. Varner, plaintiff, versus Goldie Varner, defendant, Civil Action No. 4098, could be used as evidence in this case. That record is considered as a part of the record in this case.

The question presented to this Court for decision is whether the relator is in contempt of an order of the Circuit Court of Monongalia County, requiring the relator to pay to Goldie Varner alimony in the amount of $125 a month. The relator alleges in his petition that he is physically and financially unable to comply with the order; that he is totally and permamently disabled; and that, in view of his physical impairment resulting from a 'severe heart attack', his incarceration in the county jail amounts to cruel and unusual punishment within the meaning of Article III, Section 5, of the Constitution of West Virginia.

The record in this case discloses that on June 16, 1969, the relator instituted divorce proceedings against his wife, Goldie Varner, in the Circuit Court of Monongalia County. By an order entered on September 18, 1969, judgment was entered by the circuit court dissolving the bonds of matrimony theretofore existing between the relator and his wife, Goldie Varner, and requiring him to pay to her the sum of $125 per month as alimony and $50 per month as support for an infant child, custody of whom was awarded to Goldie Varner. The son has since been emancipated and the payments for him were terminated at that time. At the time the final order in the divorce action was entered, the relator was employed as a motorman in a coal mine at a monthly salary of $750 and apparently was in good health.

On February 7, 1970, relator married his present wife, Helen Varner; and on February 28, 1970, he sustained a 'severe heart attack', as a result of which he is totally and permanently disabled. On April 8, 1970, the relator, by his wife, Helen Varner, filed a petition in the Circuit Court of Monongalia County requesting that the alimony and child support payments which he was required by court order to pay be suspended during the period of his recovery from the heart attack. After a hearing on the petition, the circuit court, on April 22, 1970, ordered the 'payments be suspended for the next two (2) weeks.'

Following the two-week suspension, the relator failed to resume making his payments of alimony and child support, and on March 17, 1971, Goldie Varner, the former wife of the relator, filed a petition in the circuit court seeking a rule to show cause why the relator should not be held in contempt of the circuit court for his failure and refusal to comply with the circuit court's order respecting alimony and child support payments. Pursuant thereto a rule was issued and a hearing was held on March 31, 1971. At the hearing evidence was adduced and it was found that the relator was $1750 in arrears in his payments and that his wife, Helen, left her employment on February 28, 1971, to care for her husband on the advice of his physician. The relator, who did not appear at this hearing upon the advice of his physician, was given until June 2, 1971, to make the alimony and child support payments then in arrears. Later the matter was continued until June 9, 1971, at which time the circuit court, after another hearing at which the relator did not appear, held 'that the plaintiff did not make every reasonable effort to provide for the alimony payments due and payable to the defendant and that the plaintiff has unjustifiably refused to comply with a previous order of this court dated September 18, 1969,' and found the relator in contempt of the court. By agreement of counsel the matter was continued again until June 21, 1971, at which time the relator purged himself of contempt by paying his former wife the sum of $2,100, which was in full payment to that date. The son having arrived at the age of eighteen years, the payments for him had terminated. The relator says the had to borrow this sum of money to make up the back payments.

On June 22, 1971, the relator filed a petition with the Circuit Court of Monongalia County praying that the alimony payments be terminated. The relator alleged that his situation had materially changed since the order of September 18, 1969, in that he was not gainfully employed and that he was totally and permanently disabled and was living on limited disability benefits, and therefore, was unable to comply with the order of the circuit court. Thereafter, Goldie Varner filed a notice in the circuit court, requesting that her monthly alimony payments be increased to $300 a month. On September 20, 1971, the circuit court, after hearing evidence on the matters contained in the petition of the relator and the notice of Goldie Varner, denied the motion of the defendant to increase the alimony payments and denied the petition of the relator to abate the alimony payments. The circuit court ordered that the alimony payments to Goldie Varner of $125 a month be continued until further order of the circuit court. In addition the circuit court ordered that the relator pay to Goldie Varner the alimony payments in arrears for the months of July and August, 1971, which amounted to $250, and which the circuit court ordered be paid on or before September 20, 1971.

On September 22, 1971, Goldie Varner filed a second petition requesting the circuit court to issue a rule to show cause why the relator...