Webb v. Webb

• Decision Date: 19 May 1904
• Parties: WEBB v. WEBB.
• Court: Alabama Supreme Court

37 So. 96

140 Ala. 262

WEBB v. WEBB.

Supreme Court of Alabama

May 19, 1904

Appeal from City Court of Birmingham; Wm. W. Wilkerson, Judge.

Bill for divorce by Albert E. Webb against Mattie Webb. Defendant was allowed alimony pendente lite, and appeals from an order refusing an attachment against complainant to compel the payment of such alimony. Affirmed.

Shugart & Bell, for appellant.

J. B Aird and A. O. Lane, for appellee.

HARALSON J.

The only question presented for review is, whether the court erred in refusing to commit the complainant for contempt for his failure to pay alimony to his wife, pending his suit against her for a divorce which, by the proper decree of the court, he had been ordered to pay.

It is not questioned, that the court, pending the suit for divorce had the right, and it was its duty to exercise it, to "make an allowance for the support of the wife out of the estate of the husband." Code, § 1495; Brindley v. Brindley, 121 Ala. 429, 25 So. 751.

A common method of enforcing orders or decrees for alimony is by attachment for contempt; and when the husband has the means or estate out of which alimony may be paid, and he willfully and contemptuously refuses to do so, no good reason exists why he may not be compelled to do so by attachment.

The attachment is designed to enforce compliance with the order and not to punish for being unable to perform it. Ormsby v. Ormsby, 1 Phila. 335. It was said in this case "From this (the duty in a proper case to provide alimony to the wife pendente lite), the husband cannot escape, unless he be destitute of all ability, in which case, if he be the libelant, the court will not require him to pay, but will suspend the suit until provision is made for the wife. 6 Eng. Ec. Repts. 391; 3 Edwards, C. R. 194." It was further said, the attachment "will not be issued, when the court is satisfied that the party is destitute of the means of making the required payments."

In Pain v. Pain, 80 N. C., it was said: "But inability to comply with an order, unlike the commitment for costs, is an answer to a rule to enforce it, and when made to appear, discharges from its obligation."

In Steller v. Steller, 25 Mich. 159, Cooley, J., for the court said: "There must be in the case something wrong beyond the mere failure to pay money; and the party, before he can be convicted and punished for it, must have an opportunity to be heard in his own explanation. * * * His inability to pay may be so absolute, as to constitute an effectual excuse." Again it was said by McCay, J., in Carlton v. Carlton, 44 Ga. 216: "It must be remembered, also, that the imprisonment by a judge for contempt, is always conditional, and is at his discretion, and may, at any time, by the same discretion, be discharged. And very clearly, it ought never to be resorted to, except as a penal process, founded on the unwillingness of the party to obey. The moment it appears there is inability, it would clearly be the duty of the judge, to discharge the party, since it is only the contempt, the disobedience upon which the power rests."

The principle seems to be well formulated in note 9, with citation of many authorities, in the case of Staples v Staples, 24 L. R. A. 433, in the following language: ...