Sullivan v. Sullivan

• Decision Date: 28 October 1939
• Citation: 137 S.W.2d 306,23 Tenn.App. 644
• Parties: SULLIVAN v. SULLIVAN.
• Court: Tennessee Court of Appeals

137 S.W.2d 306

23 Tenn.App. 644

SULLIVAN v. SULLIVAN.

Court of Appeals of Tennessee, Middle Section.

October 28, 1939

Certiorari Denied by Supreme Court March 2, 1940.

Appeal in Error from Circuit Court, Davidson County; Richard P Dews, Judge.

Contempt proceeding by Eleanor Sullivan against W. Albert Sullivan for failure to pay alimony. From an adverse judgment, defendant appeals in error.

Cause remanded, with directions.

Jack Norman and H. T. Finley, both of Nashville, for plaintiff in error, W. Albert Sullivan.

Bass Berry & Sims, of Nashville, for defendant in error, Eleanor Sullivan.

CROWNOVER Judge.

This contempt proceeding for failure to pay alimony is again before us on a petition for a rehearing, in which it is insisted:

(1) The proceedings grew out of a divorce suit and a motion for a new trial was not necessary.

(2) It is a civil contempt proceeding, if anything, and the court has no authority to commit the defendant to jail for ten days or for any other definite time.

(3) The defendant was not in contempt of court as he was not able to comply with the divorce decree requiring him to pay the amount of alimony stated in the decree.

(4) And, the judgment being void, the same should be reversed and the case remanded for another trial.

1. We think the first contention is not well made for the reason set out in our original opinion, that is, a contempt proceeding is not a part of the original proceeding, and when tried in the Circuit Court on evidence a motion for a new trial must be made and be preserved either in the bill of exceptions or in the minutes of the court. Kornik v Kornik, 3 Higgins 41, 3 Tenn.Civ.App. 41; Frierson v. Smithson, 21 Tenn.App. 591, 113 S.W.2d 778; 13 C.J. 7.

2. It is insisted that this proceeding is a civil contempt proceeding, if anything, and the court has no authority to commit the defendant to jail for ten days or for any other definite time, and it is further insisted that this question may be raised on appeal without a motion for a new trial as it appears from the technical record.

After a reexamination of the authorities we think this contention is well made, and the question may be raised in this Court on the technical record. See Bedford County v. Roseborough, 20 Tenn.App. 35, 95 S.W.2d 61; Powell v. Barnard et al., 20 Tenn.App. 31, 95 S.W.2d 57.

" Civil Contempts are Distinguished from Criminal Contempts.--'Contempts are of two kinds, civil and criminal. A "civil contempt" is one where a person refuses or fails to comply with an order of court in a civil case; and punishment is meted at the instance and for the benefit of a party litigant. The proceeding is in furtherance of the right of a private person which the court has determined that he, as a litigant, is entitled to. To this class of contempts belong such an act as the refusal to pay alimony, as ordered. Unless special elements of contumacy appear, such refusal is looked upon as a resistance of the opposite party, and not the court itself. If imprisonment be ordered it is remedial and coercive in character, having relation to the compelling of the doing of something by the contemnor which when done will work his discharge. As has been said, in such case the one imprisoned "carries the keys to his prison in his own pocket."' In re Nevitt, 8 Cir., 117 F. 448, 451. "Criminal contempts," on the other hand, are punitive in character, and the proceeding is to vindicate the authority of the law and the court as an organ of society. Such contempts, while they may arise in private litigation, in a very true sense "raise an issue between the public and the accused." State v. Daugherty, 137 Tenn. 125, 10 Thomp. 125, 126, 191 S.W. 974. See Wortham v. State, 6 Tenn.Civ.App. (Higgins) 362." 4 Michie's Digest of Tennessee Reports, 2d Ed., 481, sec. 1; Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A., N.S., 874.

The question of contempt for failure to pay alimony is elaborately discussed in an able opinion in the case of Clark v. Clark, 152 Tenn. 431, 440, 278 S.W. 65, 67, in which the Supreme Court said: "The rule is based upon the ground that the refusal is willful disobedience, and where a party is guilty of willful disobedience, or obstinacy to an order of the court or judge, the court or judge is empowered to punish for contempt and sentence him to imprisonment until the specified sum and costs are paid. State v. Dent, 29 Kan. 416; Russell v. Russell, 69 Me. 336; Strobridge v. Strobridge, 21 Hun (N.Y.) 288; Wright v. Wright, 74 Wis. 439, 43 N.W. 145; Blake v. Blake, 80 Ill. 523; Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491, 14 A.L.R. 712; 1 R.C.L. § 103, p. 966; 24 L.R.A. 434, note." See also Gibson's Suits in Chancery, 4th Ed., sec. 922.

Hence we think...