Wilson v. Wilson.

• Decision Date: 09 June 1941
• Docket Number: No. 4596.,4596.
• Citation: 114 P.2d 737,45 N.M. 224
• Parties: WILSONv.WILSON.
• Court: New Mexico Supreme Court

45 N.M. 224

114 P.2d 737

WILSON

v.WILSON.

No. 4596.

Supreme Court of New Mexico.

June 9, 1941.

Appeal from District Court, Bernalillo County; George W. Hay, Judge.

Action by Sanford P. Wilson against Gladys W. Wilson for divorce. From a judgment holding plaintiff in contempt for failure to pay money for support of the parties' minor child and attorney's fees, as required by judgment granting plaintiff a divorce, he appeals.

Affirmed.

A father owes duty to exhaust his every reasonable resource to meet obligation to support his minor child.

H. O. Waggoner, of Albuquerque, for appellant.

Dailey & Rogers and W. Peter McAtee, all of Albuquerque, for appellee.

MABRY, Justice.

This is an appeal from a judgment of the district court of Bernalillo county holding appellant in contempt for failure to pay support money and attorney fees, theretofore by judgment in a divorce action, required of him. Appellant defends upon the ground that he has been at all times material unable to obtain any employment in which his physical condition would permit him to engage, and that he has no property or other resources upon which to draw to meet the obligation imposed upon him. The support money required of appellant was for the minor child of the union with appellee. This union was dissolved by divorce decree in February, 1940.

The court made findings of fact, in addition to the judgment holding appellant in contempt, to the effect that appellant was delinquent in payment to appellee, his former wife, in the sum of $130 and, that he was likewise delinquent in the payment of fees to appellee's attorney in the divorce suit, in the sum of $50; that plaintiff is “able, if he were so disposed, to engage in gainful occupation whereby he would be in a position to comply with the terms of the original decree; and that there is no evidence to support appellant's claim that his physical condition” is impaired to any greater degree at this time than at the time of the hearing of the divorce action; that appellant has not shown a willingness to comply with the decree of this court and that he has not shown cause why he has not so complied and why he should not be punished for contempt. The judgment concluded with the imposition of a thirty-day jail sentence.

Appellant challenges the judgment of conviction and the thirty-day jail sentence upon the sole ground that there is no evidence to sustain the court's findings, conclusions and judgment, and that the proof submitted upon his part amply sustain his contention that he was unable, without fault on his part, to render obedience to the order and decree in such divorce suit.

The facts are substantially as hereinafter set out. Appellant and appellee had been married some eleven years, and had one child of the age of 9 years. They were divorced in February, 1939. Custody of the child went to appellee and $40 per month (but fixed at $20 per month during any period of appellant's unemployment) was allowed and ordered paid to appellee for child support. Appellant had been employed at various office jobs at a salary of approximately $150 per month much of the time prior to the divorce. He was discharged from his work after the filing of the divorce suit but prior to the decree, and has not been gainfully employed since that time. He has no property or income of any kind from which to secure funds to make such payments, and he lives entirely upon the charity of his parents and friends. Property which he at one time owned, and from which he received a portion of the income for some of the years prior to the divorce, was, in 1928, and before his marriage, transferred and conveyed to a corporation which his father, mother and other relatives control. Whether appellant has any beneficial interest in said property is a question to be hereinafter discussed. In addition, since the beginning of 1940, at least, appellant has been suffering from a severe case of double hernia; that the seriousness of the ailment has become aggravated and more acute since December 1939. Although he was afflicted with this ailment for some years, it had not theretofore caused him any loss of time or great inconvenience.

Appellant contends that his physical condition resulting from this affliction confines him exclusively to employment not calling for lifting, straining, or other labor involving any considerable physical strain, and that he has been unable, since the date of the divorce, to secure such employment. The evidence of appellant going to his inability to perform labor involving any considerable physical effort, stands unrefuted in the record. There is some ground to suspect his efforts to secure employment have not been too earnest.

Medical testimony was offered on behalf of appellant to the effect that he was suffering from double hernia, severe and potentially dangerous as to one side, which would likely involve grave hazards to his health if jeopardized by any severe strain or unusual physical exertion. Some of the medical testimony, however, was based upon the history of the case as the doctor obtained it from appellant; but, it is clear that appellant is suffering from such double hernia in somewhat aggravated form but whether it is considerably worse than during the last few years of his employment at an office job, is questioned.

When appellant shows his inability to secure employment in the kind of work in which his physical condition would permit him to engage, his counsel urges, it cannot be said that he wilfully disobeyed the order of the court because he did not work. Likewise, it is argued, if he has no property producing an income, or which might be sold to meet the obligation, it cannot be said that he is in contempt of court because of his failure to obey its mandate to pay. We have no quarrel with either of the above propositions. But we cannot agree with appellant's appraisal of the facts in the case.

[1] Appellant claims that all money for social recreation and for his food, lodging and clothes represents benevolences from friends and indulgent parents. The parents of appellant could, doubtless, extend their benefactions to support of the grandchild while appellant is unemployed. This appears to have been the original plan, according to some testimony. But no such duty rests upon them here. We said in the McMahan case, infra, that commitment of the father of the child in order to secure such aid from his parents “does not appeal to us as the proper view.”

[2] As we pointed out in Andrews v. McMahan, 43 N.M. 87, 85 P.2d 743, 745, 120 A.L.R. 697, inability of an alleged contemner to obey a decree of court, absent fault on his part, is a good defense. Incidentally, we there also referred approvingly to certain language found in Redding v. Redding, 167 Miss. 780, 150 So. 776, to the effect that chancellors long on the bench learn that decrees for alimony are notably productive of pretenses of poor health and inability to work, “and on citations for contempt they are authorized to scrutinize such excuses in the light of that judicial experience. ***” There can be no doubt that this case had the closest scrutiny. The learned trial judge in the case at bar was doubtless provoked to reflect soberly upon his own and the experience of most trial judges in this respect. The court made findings to the effect that appellant had wilfully disobeyed the order and decree of the court and had not discharged the burden of showing his inability to support his child.

Whether appellant...