Thomas v. Thomas

• Decision Date: 21 May 1937
• Docket Number: 30031.
• Citation: 273 N.W. 483,132 Neb. 827
• Parties: THOMAS v. THOMAS.
• Court: Nebraska Supreme Court

273 N.W. 483

132 Neb. 827

THOMAS v. THOMAS.

No. 30031.

Supreme Court of Nebraska.

May 21, 1937

Syllabus by the Court.

1. Where, in an action for divorce, a husband has been ordered to pay alimony for the support of his wife, and, being of sufficient ability to pay the same, wilfully and contumaciously neglects or refuses to pay, having no reasonable or just grounds for his failure or refusal, such conduct constitutes a civil contempt.

2. The above rule is applicable to the payment of permanent, as well as temporary, alimony.

3. The affidavit or complaint on which the instant case is based examined, and, for reasons set forth in Wright v. Wright (Neb.) 272 N.W. 568, held insufficient.

Error to District Court, Scotts Bluff County; Irwin, Judge.

Divorce action by Harry Thomas against Amy Thomas wherein the defendant filed a cross-petition and was awarded a divorce on her cross-petition and judgment for alimony. From an order committing him to the county jail for failure to comply with the order directing payment of alimony, the plaintiff brings error.

Reversed and dismissed.

Paul T. Miller and Morrow & Morrow, all of Scottsbluff, for plaintiff in error.

Jack L. Raymond, of Scottsbluff, for defendant in error.

Heard before ROSE, EBERLY, DAY, PAINE, and CARTER, JJ., and HASTINGS and RINE, District Judges.

EBERLY, Justice.

In this proceeding plaintiff prosecutes error from an order of the district court for Scotts Bluff county committing him to the county jail of that county for failure to comply with an order of that court directing the payment of alimony.

The record discloses that on May 27, 1935, a decree was entered granting the defendant, Amy Thomas, a divorce on her cross-petition, and awarding her judgment against the plaintiff, Harry H. Thomas, in the sum of $2,400, payable $50 a month, and making said judgment a lien on plaintiff's real estate. On July 9, 1936, there was filed in this cause an affidavit setting forth the entry of the judgment of alimony aforesaid, and the terms thereof, and stating " that nothing has been paid by plaintiff to this defendant during the month of March, 1936; that he has paid the February payment and is delinquent with the March payment for four months, and will be delinquent for the July 10, 1936, payment prior to the date of hearing on this citation; that plaintiff has ignored the orders of this court entered herein on the 27th day of May, 1935, and on the 14th day of September, 1935, and that plaintiff is an ablebodied man competent to earn the sum of $200 per month."

This constituted the complaint or charge upon which plaintiff was tried on July 13, 1936, after due service upon him of an order to show cause. Hearing was had, at the conclusion of which an order was entered whereby the " court * * * finds that plaintiff is in contempt of court for failure to pay alimony as ordered by this court on the 27th day of May, 1935, and on the 14th day of September, 1935, and that he is now in arrears the sum of $250, being $50 per month for March, April, May, June and July, 1936, and that plaintiff should be confined in the county jail unless he purges himself. It is therefore ordered that plaintiff be given ten days to purge himself of contempt of this court for failure to pay alimony," and to comply with the order of this court, and upon his failure to do so it was ordered that " he be confined to the county jail of Scotts Bluff county, Nebraska, until he purges himself."

No bill of exceptions forms a part of this record, so we are limited in our consideration of the case to the transcript, as to which, to entitle plaintiff in error to relief, error must affirmatively appear.

The first contention of plaintiff in error is that the record discloses that more than six months have elapsed since the entry of the decree of divorce, and the relation of husband and wife having absolutely terminated, the judgment for alimony may not now be enforced by contempt proceedings. In support of his contention he cites Leeder v. State, 55 Neb. 133, 75 N.W. 541, and Segear v. Segear, 23 Neb. 306, 36 N.W. 536.It appears needless to discuss the doctrines of these cases. Both were expressly overruled in Cain v. Miller, 109 Neb. 441, 191 N.W. 704, 30 A.L.R. 125, and the last-named case was approved in Jensen v. Jensen, 119 Neb. 469, 229 N.W. 770, See, also, Umphenour v. Van Hoosen, 121 Neb. 870, 236 N.W. 762.

We do not overlook the contention of plaintiff in error that the rule applied in the instant case is proper only when applied to failure to conform to a decree for payment of temporary alimony. In Maryott v. State, 124 Neb. 274, 246 N.W 343, 345, the case of Cain v. Miller, supra, is cited with approval, Good, J., saying: " The rule is applicable to the payment of...