Vaughan v. Vaughan

• Decision Date: 02 March 1938
• Docket Number: 105.
• Citation: 195 S.E. 351,213 N.C. 189
• Parties: VAUGHAN v. VAUGHAN.
• Court: North Carolina Supreme Court

195 S.E. 351

213 N.C. 189

VAUGHAN v. VAUGHAN.

No. 105.

Supreme Court of North Carolina

March 2, 1938

Appeal from Superior Court, Nash County; Clawson L. Williams, Judge.

Divorce action by Ross L. Vaughan against Mrs. Elizabeth S. Vaughan. An order was entered granting the defendant alimony pendente lite and attorney's fees. The plaintiff was cited to appear and show cause why he did not comply with the order and why he should not be adjudged in contempt of court for failure to so comply. From an adverse judgment, the plaintiff appeals.

Error and remanded.

This is a petition in the cause made by defendant setting forth the allegations she relies on to support her contention. The prayer is as follows:

"1. That a citation issue requiring the plaintiff, Ross L Vaughan, to show cause before your Honor, if any he has why he has not complied with the order made by M. V Barnhill, Judge, on the 10th day of October, 1936; and further, why he should not be adjudged in contempt of Court for failing to comply with said order.

2. That the plaintiff, Ross L. Vaughan, be required to forthwith pay the counsel fees heretofore allowed, and that the Court order him to forthwith pay in addition thereto reasonable counsel fees for the services rendered by said attorneys in connection with this cause in the Supreme Court of North Carolina, and that he be required to forthwith make reasonable payment to the defendant's attorneys for services to be rendered by them in the Superior Court of Nash County in connection with this trial upon its merits.

Mrs Elizabeth S. Vaughan,

Petitioner."

The plaintiff was cited to appear before his honor, Williams, J at Wilson, N. C., at 10 o'clock a. m., on "Thursday, the 7th day of October 1937, and show cause, if any you may have, why you have not complied with the order that was made on the 10th day of October 1936; by His Honor, M. V. Barnhill, Judge, and further show cause why you should not be adjudged in contempt of Court for your failure to comply therewith.

You will further show cause, if any you may have, why an order should not be made by this Court requiring you to forthwith comply with the order heretofore made, and in addition thereto pay to counsel for the defendant, Elizabeth S. Vaughan, a reasonable sum for the services rendered in the Supreme Court of North Carolina in connection with your appeal from the order made by Barnhill, Judge, and a further reasonable sum for services to be rendered by said counsel upon the trial of this cause upon its merits, which is now calendared for trial on the 12th day of October 1937."

The plaintiff answered and denied the material allegations of the complaint and in further answer says: "That he is not now, nor has been at any time, in contempt of any order or direction made by the Court in respect to the matters set out in the petition. That so far as he was able to do, this respondent has faithfully carried out and performed the direction contained in the order and orders made in this cause. If the respondent, as before stated, has not complied with said orders to pay to the defendant, his child, and attorneys for the defendant the amounts directed to be paid, it is because the respondent was absolutely unable to do so and he is advised that having done the best he could in the circumstances in which he found himself and without any evil purpose or intent, he could not or ought not to be held in contempt since to do so would be holding the respondent liable or responsible for something or to do something which was not in his power or by any means that he had or was able to control."

The plaintiff also sets forth in detail his "financial transactions, ability and resources," etc., and alleges:

"That the respondent has no income from any source other than that mentioned in this answer. Necessarily, he has maintained himself in as economical manner as was possible, and in a large measure, he has done this on money advances by those who had liens on his crops and personal property. He has paid for the maintenance and support of his child since the order of Judge Barnhill $220.00, or an average of $20.00 per month."

"That the amount fixed by Judge Barnhill's order, $60.00 per month, is absolutely and entirely beyond the reach or the means of this respondent to pay. That the order directing the payment of said $60.00 per month should be stricken out and some amount fixed commensurate with the ability of the respondent to pay. That the attorney's fees have not been paid for the reason that the respondent did not have the money nor has it now nor could he borrow it. If the respondent had possessed the means to do so he would have paid the amount of said fees as well as that ordered to be paid to the defendant and child.

That respondent says that in addition to furnishing the statements hereinbefore made concerning his financial transactions, ability and resources, he stand ready to furnish any further details concerning the same that may be desired by the Court.

This respondent, as first above stated, has not purposed or intended at any time to violate willfully or to disobey any term or direction contained in the order of Judge Barnhill as is set out in the petition. He has not complied with the direction of said order because he has been and is now financially unable to do so. He has not at any time intended to be disrespectful to the Court and he has not been guilty of any willful disregard of the order...