Wohlfort v. Wohlfort

• Decision Date: 10 May 1924
• Docket Number: 25,412
• Citation: 225 P. 746,116 Kan. 154
• Parties: ANNA F. WOHLFORT, Appellee, v. AXEL T. WOHLFORT, Appellant
• Court: Kansas Supreme Court

225 P. 746

116 Kan. 154

ANNA F. WOHLFORT, Appellee, v. AXEL T. WOHLFORT, Appellant

No. 25,412

Supreme Court of Kansas

May 10, 1924

Decided January, 1924.

Appeal from Republic district court; JOHN C. HOGIN, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTEMPT--Action for Separate Maintenance by Wife--Abandonment for Less Than One Year. When a husband abandons his wife without just cause, she may maintain a suit for separate maintenance, though the abandonment has not been for a period sufficient to constitute a cause for divorce.

2. SAME--Refusal to Obey Order for Temporary Alimony--Under the Facts an Order for Commitment for Contempt Was Erroneous. In a suit for separate maintenance, the court made an order for the defendant to pay a specified sum for temporary alimony and suit money by a day certain. Upon a hearing for contempt for nonpayment it was shown that defendant had property which, if sold, would bring enough, or nearly enough, to pay the sum due. Defendant offered to sell the property, or permit it to be sold, for that purpose. Held, it was error to commit him for contempt until the sum was paid. The property should have been sold, under order of the court if necessary and the proceeds applied upon the sum due.

3. SAME--Duty of Husband to Make Reasonable Provision for Maintenance of His Wife. It is the duty of a husband to make reasonable provision from his money, property, or labor, for the maintenance of his wife, and he is not relieved of that duty by the fact that the wife, without fault on her part, is compelled to live apart from him.

4. SAME--In a Proper Case a Husband May Be Committed for Contempt for Refusal to Provide Maintenance for His Wife. The court may, in a proper case, commit a husband for his refusal to provide maintenance for his wife, even though to do so requires him to labor.

Park B. Pulsifer, and Clyde L. Short, both of Concordia, for the appellant.

H. H. Van Natta, W. D. Vance, and R. E. McTaggart, all of Belleville, for the appellee.

OPINION

HARVEY, J.:

This is an appeal from a judgment of contempt for refusal to pay a specified sum for temporary alimony and suit money in an action for separate maintenance. The records show the facts to be substantially as follows: The plaintiff, Anna F. Wohlfort, and the defendant, Axel T. Wohlfort, were married in 1911. Prior thereto plaintiff had lived in Chicago and had been employed as cashier in one of the stores, and defendant had lived with his parents on a farm near Scandia. They had no property. Defendant's parents furnished the home, gave them some stock, furnished them credit by which they procured horses and farming implements and permitted them to occupy a 280-acre farm owned by defendant's mother. Defendant's father died in 1916 and by will left all of his property to his widow and a daughter, the mother and sister of defendant. Plaintiff and defendant lived upon the farm from the time of their marriage until May, 1922, when they sold most of their live stock and farm implements and moved to Chicago. Their farming operations had not been very successful and after they left defendant's mother paid various of their debts amounting to about $ 1,300. They rented a rooming house in Chicago, bought some furniture, giving their note for about $ 240 in part payment, which note defendant's mother later paid. Plaintiff undertook to look after the rooming house but in October, 1922, she was compelled to go to the hospital for about three weeks for an operation. The expense of that, amounting to about $ 500, was paid by defendant's mother. Before going to Chicago defendant had never done anything but farm work, but he was handy with carpenter tools and expected to get employment as a carpenter. He did get some employment of that kind, but either because of the lack of skill in the trade, or the fact that he did not belong to the Union, or both, he was unable to get steady employment or good wages. He undertook to join the Union but his application was denied. Being unable to retain sufficient employment to provide for himself and wife, about December 15, 1922, defendant went to Topeka, where he had a sister living, with a view of finding employment and sending for plaintiff. At that time plaintiff, though not fully restored to health, was able to look after the rooming house, some rooms of which were occupied and some vacant. They had no debts in Chicago. Their small bank account was in plaintiff's name and out of it she gave defendant $ 15 to make the trip to Topeka. Defendant remained in Topeka some two or three months, then went to the home of his mother near Scandia, where he has since lived. He has had no employment since he left Chicago and did not send for plaintiff. After leaving Chicago he and plaintiff corresponded for a while at least, but the nature and extent of that is not shown by the record. The plaintiff remained in Chicago until some time the next summer, when she sold the used automobile and what furniture they had for about $ 250 and used the money in paying her expenses. She went to Scandia and filed this suit in September, 1923, and alleged as her ground of action that defendant had been guilty of extreme cruelty and gross neglect of his duty toward plaintiff, and specifically that he had, without just cause, abandoned her in December, 1922, at a time when her health was not good and that he had wholly failed to provide for her since that time. The petition also described certain personal property owned by the parties which had not been sold when they went to Chicago, and set up a claim that defendant has an undivided one-sixth interest, worth $ 30,000, in the estate of his father as though a will had not been made, which the petition avers arose because of the fact that defendant's father died in November, 1916; that his will was not probated until March, 1923, and during all that time the will was in the possession and under the control of the devisees named therein. Defendant's mother and sister were made parties and have filed a demurrer to the petition which has not been ruled upon. Soon after filing the petition plaintiff made application for temporary alimony and expense money. Upon hearing of this motion October 16, the defendant was in court, though not represented by counsel. The court made an order that the defendant pay $ 50 for plaintiff, $ 50 for her attorneys and $ 75 for suit money by November 1. This not being paid on November 5, proceedings for contempt were instituted and a hearing thereon was had November 14. The accusation for contempt set out the order of the court making the allowance, and that the defendant had failed to pay any part thereof, and averred that he was physically and financially able to comply with the order. Defendant in his answer to the accusation denied his financial ability to comply with the order and averred that defendant had not contemptuously refused to obey the order, but that he had not paid the same for the reason that he was unable to do so; that he had no property except a small amount of specific personal property, which he described, which he alleged he had offered and still offered to sell or have sold, and the proceeds applied pursuant to such orders as the court may direct, and averred that he had no employment, and had had none for several months.

On the hearing as to defendant's ability to pay, the plaintiff testified, when they went to Chicago they left a team of mules, a mare, a cow, two calves and some farm machinery on the place, and that defendant left with his mother for safe-keeping some gold pieces which she thought were worth $ 50 to $ 60; that defendant had been working some on his mother's place since he came from Chicago, but she did not know what pay, if any, he was receiving; that there was corn husking and other work in the neighborhood which defendant could get to do and was capable of doing and which paid good wages, and further, she claimed that the defendant had an undivided one-sixth of his father's estate and that her attorneys had brought, or soon would bring, an action to determine that matter. On behalf of the defendant he admitted that he had the two mules and mare, but said all of them were old, worth very little, practically nonsalable that the farm machinery was old machinery which he could not sell when he went to Chicago, was of little value and practically unsalable. That the cow, two two-year-olds and a calf, were salable and were worth about $ 100, and that he had left with his mother when he went to Chicago, gold pieces of the value of $ 26. He expressed his willingness to convert this property into cash and pay it to the court for plaintiff. He said he was living with his mother and sister on the farm, doing a little work about the place for his board and living expenses. That he had no employment and had earned no money since leaving Chicago, though he had endeavored to get employment; that corn husking had been on only about two weeks but he had not attempted to get work at that, and that he had no property other than that above described. His testimony was corroborated by that of his mother and sister. At the time of the hearing he was forty-three years of age and in good health. The court found, "Defendant is guilty of willful contempt as charged and that he should pay the costs incident to the proceedings in contempt," and ordered that he be confined to the county jail "until such time as he purges himself of such contempt by making full compliance with the order of the court made on October 16, 1923, as far as is complained of in the charges of contempt herein filed, and by further payment of the costs of this contempt proceeding." He appeals from this order and contends, first, that no order of...