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(Tenn. 256 S. W. 890.) 146 Tenn.: “We conclude, although wife, who does not need the alimony the statute does not impose upon the for her support. court the imperative duty of always (f) It is also to be observed that and under all circumstances grant the husband in the present case (uning alimony, the court is not re- like the defendant in Williams v. leased from the duty of doing so Williams, supra) is not possessed of merely because the wife has means any estate, and is dependent upon of her own, or is otherwise able to the practice of his profession for his afford herself a support, independ- living. He is a man now about fifty ently of the means of her husband. years of age. His former wife is We are of the opinion, under the some six years younger. The origistatutes and the facts of this case, nal decree (which cannot be modithat it is the duty of the court to fied by this court) provides that he provide for the wife's suitable sup- is to pay her the sum of $150 per port by the husband, or out of his month for the rest of her life. This property."

may, of course, be many years, durMoreover, in the case of Williams ing which time it is natural that the v. Williams, the record showed that earning capacity of the husband will the husband had an estate valued at tend to be decreased rather than inabout $180,000 (146 Tenn. 46), and creased. an award of $20,000 in solido was Suppose the chancellor's decree made (146 Tenn. 48).

should be affirmed, and the defend(e) There is another feature of ant committed to jail until he pays the instant case which should be the sum of $300 and other instalconsidered, viz., the fact that the ments of alimony, which, according husband, shortly after the divorce to this record, he can only do by the decree was obtained, remarried, and practice of his profession. It is not has now a wife and a minor step- perceived how this would better the child to support. It is not claimed, situation. As stated by the supreme as we understand the record, that he court of Mississippi in the recent is spending his income in riotous liv- case of Ramsay v. Ramsay (1921) ing, but that he is spending it on his 125 Miss. 185, 197, 14 A.L.R. 712, present wife and her child, instead 715, 87 So. 493: “He cannot pay of paying it out as alimony to his the alimony or any part thereof unformer wife.

til he earns the money necessary for It is true that it has several times that purpose, and, if he should be been decided that the support of an- confined in prison, he will not, while other wife and family is not a de- there, be able, of course, to earn any fense for failure to pay alimony. money at all, so that to commit him State ex rel. Brown v. Brown to prison would defeat the purpose (1903) 31 Wash. 397, 62 L.R.A. 974, sought to be accomplished.” 72 Pac. 86; Park v. Park, 18 Hun, Some courts, indeed, have gone to 466, and 80 N. Y. 156 (second mar- the length of saying that a husband riage in violation of divorce de- who has no property, but is able to cree); Ryer v. Ryer, 33 Hun, 116 work, must be imprisoned, the the(marriage in violation of decree). ory being that this will put a pres

But certainly, in view of the well- sure on him to raise the money settled policy of the law to encour- somehow. Fowler v. Fowler (1916) age marriage, it would seem unfor- 61 Okla. 280, L.R.A.1917C, 89, 161 tunate that the new family should Pac. 227. be made the victims (as they inevi- Thus, it is stated (61 Okla., at tably must be) of a hard and fast page 286): "The attachment will rule that alimony awarded at a pre- bring the actual resources of the revious term must be paid, and that spondent to a practical and decisive failure so to do is punishable by con- test. Pressure is a great concentratempt proceedings, though this be tor and developer of force. Under done at the instance of the former the stress of an attachment even the

In

vision of the respondent himself money for application to its decree, may be cleared and brightened, so has not been made to appear. that he will discern ways and means any effort in this direction it might which were once hidden from him, undertake, the court would be careor seen obscurely.”

ful not to violate the law against A contrary, and, as it seems to us, peonage for the sake of earning a better-reasoned, view of this ques- money. Such an effort, if undertaktion was taken by the supreme court en, might involve the court and its of South Carolina in the case of agents in trouble, into which we Messervy v. Messervy (1910) 85 S. would not knowingly induce or comC. 189, 30 L.R.A.(N.S.) 1001, 137 pel them." Am. St. Rep. 873, 67 S. E. 130, by This is the view adopted in 1 R. the supreme court of Alabama in C. L. 962, and 2 Schouler, Marr. Webb v. Webb (1903) 140 Ala. 262, Div. & Sep. 6th ed. § 1845. 103 Am. St. Rep. 30, 37 So. 96, and In the latter text it is stated that by the supreme court of California "there is no contempt where the dein the case of Ex parte Todd, 119 fendant is unable to pay, even Cal. 57, 50 Pac. 1071.

though his inability arises from his In the Alabama case, supra, the wilful refusal to work." defendant made a sworn return to With regard to the suggestion the rule, saying that he had no mon- made in some of the cases that "the ey or property with which to pay; defendant himself holds the key to that he had no employment, nor had his prison," it may be observed that he had any since the rendition of the such an expression seems applicable decree, from which to earn money,

rather to cases where a single act is etc.; and averred his readiness to to be performed-e. g., answering a pay as soon as he was able to pro- question, signing a deed, or paying cure the money.

over money in the possession of the The court says: “There seems to defendant. be no dispute about complainant be- (f) It is also to be observed that ing unable to pay the decree out of under the contention of the appellee money or property, and the court so there would be no limit to the duraheld. The only remaining insist- tion of the imprisonment. If the ence is that he is able to work, and defendant should refuse to practise will not work, to earn the money to his profession and earn money for make the payment, and the court the payment of the alimony, he ought to commit him for default in might then be committed to jail for this respect. It is difficult to under- the rest of his natural life. Such a stand how the desired result was thought must, indeed, give us pause. thus to be accomplished, and how It is reminiscent of "Bleak House," the court would go about it. If com- and the chancery court of Dickens's plainant would not labor, the court day. was without power to inflict cor- Some of the states where imprisporal punishment to compel him. If onment for failure to pay alimony it imprisoned him until he was will- is authorized expressly limit the duing to work, that would not have ration of the imprisonment, and produced money meantime, but

meantime, but provide against more than one imwould have entailed expense for the prisonment. 2 Schouler, Marr. Div. imprisonment; and if imprisoned & Sep. 6th ed. $ 1850. and he should relent and come in In New York, for example, the deand signify his willingness to labor fendant can only be imprisoned once employment would have to be ob- for failure to pay alimony; and tained for him, by the court, by him- where the amount to be paid is unself, or someone else; and how the der $500, imprisonment is for not court would have proceeded legally longer than three months; and to hire him out, or supervise him, if where over $500, for not longer than he hired himself, and collect the six months. Chadwick v. Chadwick (Tenn. 256 8. W. 890.) (1915) 170 App. Div. 328, 156 N. Y. "In a case of this character--that Supp. 190; People ex rel. Levine v. is, where a monthly or yearly allowShea, 201 N. Y. 471, 94 N. E. 1060. ance is decreed—the case should al

(h) The record in this case dis- ways be retained, in order that fucloses that the appellee has secured ture decrees may be entered to meet employment, and is working. We the exigencies of the case.' Taylor have already mentioned the prop- v. Taylor (1921) 144 Tenn. 311, erty received by her from the es- 318, 232 S. W.445. tates of her father and brother since Although we have found no case the divorce decree was granted. It which, in terms, makes this distinchas been held that the fact that the tion, it seems to have been recogwife is receiving support from her nized in Ex parte Davis (1908) 101 father (Shaffner v. Shaffner [1904] Tex. 607, 17 L.R.A. (N.S.) 1140, 111 212 Ill. 492, 494, 497, 72 N. E. 447), S. W. 394, a case dealing with alior the fact that she is herself work- mony pendente lite, where the court ing (1 R. C. L. 961; 2 Schouler, said: “The order made in this case Marr. Div. & Sep. § 1844; Nipper v. was not a final judgment; for it was Nipper, 133 Ga. 216, 65 S. E. 405), subject at any time to modification, cannot be considered as a defense to or even to be set aside and annulled a contempt proceeding.

by the judge who entered it, and the Assuming, without deciding, that performance of it could be by the this may be a correct rule in cases judge excused at any time, upon a where the decree is flexible, and the showing of inability or other good whole matter under the control of reason why it should not be perthe chancellor, we think the wife's formed." employment is, at least, a circum- In the English case of De Lossy stance to be considered in the pres- v. De Lossy (1890) L. R. 15 Prob. ent case.

Ramsay

v. Ramsay Div. 115, the report of the case, (1921) 125 Miss. 185, 14 A.L.R. which is very brief, shows the fol712, 715, 87 So. 491. There is noth- lowing facts: ing in the decision of Williams v. “This was a suit for dissolution at Williams, 146 Tenn. 38, 236 S. W. the instance of the wife, and a de938, which forbids this. It would cree absolute had been pronounced surely be an extreme rule which de- on February 29, 1883. By consent, clared that the husband must go to an order was made at the hearing prison for an indefinite period, while that the respondent do pay the petithe wife, in a case easily to be sup- tioner by way of permanent mainposed, was enjoying a sufficient in- tenance the sum of £200 annually come, earned by her exertions in during their joint lives, the sum to some congenial pursuit.

be paid quarterly in advance. To(3) After a careful consideration wards the end of 1888 the respondof the various principles involved, ent stopped the payments, and diand after reading many cases from rected his solicitor to write to the other jurisdictions, we are of opin- petitioner that he had done so, in ion that there should be a distinction consequence, as he was informed made where alimony is payable in and believed, of her not leading a future instalments, and is to be de chaste life. rived from the husband's labors, be- "Inderwick, Q. C., moved to attween those cases where the decree tach the respondent for nonpayment is flexible and under the control of of the instalments due since Janthe court, and those cases, like the uary, 1889, the arrears amounting present, where it has become rigid. in all to £250.”

It is very easy for the chancellor The trial judge, Honorable Sir to retain jurisdiction and control of Charles Parker Butt, made this inthe matter in these cases, and it has quiry: “Has an attachment ever been said by this court that such is been issued by this court to enforce the proper practice.

an order for a money payment made under a final decree, and has it ever register as sufficient to cover the been held, in regard to a final judg- costs and expenses of the petitioner ment of the court directing money of and incidental to the hearing of payments, that noncompliance was the cause, or give a bond under the contempt of court?"

hand and seal of the respondent and The motion was dismissed, the of two sufficient sureties for £80 for trial judge stating that he did not payment of the costs of the petitionthink the court “has any power to er, not exceeding the sum of £40." make such an order as now asked The husband having failed to for."

comply with the order, the wife apIn the case of Lynch v. Lynch plied for leave to issue a writ of at(1885) L. R. 10 Prob. Div. 183, the tachment against him for not paywife filed her petition for dissolu- ing the sum of £41 due for taxed tion of marriage, and by order dated costs, and for not paying into court, April 21, 1885, the husband was di

or giving security for the payment rected to pay the sum of £22 costs of, the sum of £40 for future costs already incurred, and to pay into the and expenses; and the writ of atregistry, or find security for, the tachment was granted. sum of £50 to answer the petition- The case was appealed, and opiner's cost of the hearing of the suit. ions were delivered by Sir Henry The husband failed to obey this or- Cotton, L. J., Sir Nathaniel Lindley, der, and on affidavits of service and L. J., and Sir Charles S. C. Bowen, noncompliance, counsel for the wife, L. J. on June 9, 1885, moved for an at- Cotton, L. J., speaking of the sum tachment. It was claimed on behalf of £41 taxed costs, says:

It was of the husband that no attachment conceded by the counsel for the petiwould lie in favor of the Debtors? tioner that the first part of the orAct of 1865, which forbade impris- der could not be supported; it must, onment for “default in payment of therefore, be varied in that respect.” a sum of money.”

But it was held that the latter Sir J. Hannen said: “I entertain part of the order, ordering payment no doubt that the respondent is into court of £40 for future estimatguilty of a contempt of court if he ed costs, or the giving of a bond to has the means and does not find se

secure the same, was not in conflict curity. What may be the effect of with the Debtors' Act; and Lynch v. such a contempt is another matter. Lynch, supra, was cited on this It has for many years been the prac point. tice of the court so to consider this Lindley, L. J., expressed the view question, and I must act according that the words "payment of money": ly and leave the court of appeal to did not refer to depositing a sum of alter the practice if it thinks proper.

money in court, and concludes: Attachment to issue unless security “The latter part of the order apis given within a fortnight."

pealed from is right, and must be In the case of Bates v. Bates affirmed. The former part appears (1888) L. R. 14 Prob. Div. 17, the to have been made by an oversight, wife filed a petition for judicial and the order must be varied in that separation, on account of the hus- respect." band's cruelty, and in August, 1888, Bowen, L. J., merely said: “I am before the case came to a hearing of the same opinion.” an order was made by Sir J. Han- It will be observed, in the first nen that the respondent should, place, that in both these cases the within seven days, pay the solicitor suit was pending and under the conof the petitioner the sum of £41, trol of the court, and, again, that the "being the amount of the petition- court refused to allow an attacher's costs already incurred, as taxed, ment, even in such a case, for costs and should within the same time already accrued. pay into court £40, estimated by the In some states of the Union it has

(- Tenn. - 856 8. W. 890.) been held that alimony is merely a cases will also be found to relate to debt, which cannot be enforced by temporary alimony, where the case contempt proceedings. Re Kinsolv- is, of course, under the full control ing (1908) 135 Mo. App. 631, 116 S. of the court. Others are perhaps to W. 1068; Coughlin v. Ehlert, 39 Mo. be explained by the Constitution or 285; Segear v. Segear, 23 Neb. 306, statutes of the particular state. 36 N. W. 536; Leeder v. State, 55 We do not mean to decide that the Neb. 133, 75 N. W. 541. And see chancery court cannot, under other Marsh v. Marsh (1903) 162 Ind. conditions, enforce the payment of 210, 212, 70 N. E. 154; Allen v. alimony by attachment for conAllen (1887) 72 Iowa, 502, 34 N. W. tempt, for this question is not be303 (temporary alimony); Baily v. fore the court; but we think that Baily (1886) 69 Iowa, 77, 28 N. W. under the facts and circumstances 443 (temporary alimony); North v. shown by the rec

Contempt-to North (1878) 39 Mich. 67.

ord in this case at- enforce payment

of alimony. But these holdings are exception- tachment for conal, the majority of the state courts tempt is not a proper remedy, and holding that the alimony is not that the appellee must enforce her merely a debt, but that its payment claims for alimony by other approis an act which the court has or- priate proceedings. dered the husband to perform, and (4) In this view of the case, we that he is in default for failure to do not find it necessary to consider obey the court's order in this behalf, the appellant's contention as to inand may be attached for contempt. voluntary servitude under the 13th

See the cases cited in the report. Amendment to the Constitution of er's note to Adams v. Adams (1912) the United States. 80 N. J. Eq. 175, 83 Atl. 190, Ann. It results that the Chancellor's Cas. 1913E, 1083, 1087; in the case decree and that of the Court of Civnote in 24 L.R.A. 433; and in the

il Appeals will be reversed, the atnotes to 19 C. J. 299, 300.

tachment and mittimus quashed, It will, however, appear on exami

and the case remanded for further nation that in many (perhaps in

proceedings not inconsistent with most) of these states the court retains jurisdiction over the matter

this opinion. even after final decree. Some of the Petition for rehearing denied.

ANNOTATION.

Inability to comply with judgment or order as defense to charge of contempt.

I. Introductory, 649.
II. Contemner not at fault, 649.
III. Contemner at fault, 650.

IV. Failure to pay alimony, 650.

V. Burden of proof, 652.
VI. Rule in New York, 652.

pay alimony which one is unable to pay would violate constitutional or statutory provisions against imprisonment for debt.

1. Introductory. This annotation is supplemental to that on the same question in 22 A.L.R. 1256.

The question whether alimony is a debt within constitutional or statutory provisions against imprisonment for debt is treated in the annotation appended to Cain v. Miller, ante, 125. Cases are included in that annotation on the constitutional aspect of the present question, i. e., on the point whether imprisonment for failure to

II. Contemner not at fault. (Supplementing annotation in 22 A.L.R. 1256.)

The rule laid down in the earlier annotation on this question, that the inability of an alleged contemner, without fault on his part, to render obedience to an order or decree of

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