(- Tenn. ->

146 Tenn.: "We conclude, although the statute does not impose upon the court the imperative duty of always and under all circumstances granting alimony, the court is not released from the duty of doing so merely because the wife has means of her own, or is otherwise able to afford herself a support, independently of the means of her husband. We are of the opinion, under the statutes and the facts of this case, that it is the duty of the court to provide for the wife's suitable support by the husband, or out of his property."

Moreover, in the case of Williams v. Williams, the record showed that the husband had an estate valued at about $180,000 (146 Tenn. 46), and an award of $20,000 in solido was made (146 Tenn. 48).

(e) There is another feature of the instant case which should be considered, viz., the fact that the husband, shortly after the divorce decree was obtained, remarried, and has now a wife and a minor stepchild to support. It is not claimed, as we understand the record, that he is spending his income in riotous living, but that he is spending it on his present wife and her child, instead of paying it out as alimony to his former wife.

It is true that it has several times been decided that the support of another wife and family is not a defense for failure to pay alimony. State ex rel. Brown v. Brown (1903) 31 Wash. 397, 62 L.R.A. 974, 72 Pac. 86; Park v. Park, 18 Hun, 466, and 80 N. Y. 156 (second marriage in violation of divorce decree); Ryer v. Ryer, 33 Hun, 116 (marriage in violation of decree).

But certainly, in view of the wellsettled policy of the law to encourage marriage, it would seem unfortunate that the new family should be made the victims (as they inevitably must be) of a hard and fast rule that alimony awarded at a previous term must be paid, and that failure so to do is punishable by contempt proceedings, though this be done at the instance of the former

256 S. W. 890.)

wife, who does not need the alimony for her support.

(f) It is also to be observed that the husband in the present case (unlike the defendant in Williams v. Williams, supra) is not possessed of any estate, and is dependent upon the practice of his profession for his living. He is a man now about fifty years of age. His former wife is some six years younger. The original decree (which cannot be modified by this court) provides that he is to pay her the sum of $150 per month for the rest of her life. This may, of course, be many years, during which time it is natural that the earning capacity of the husband will tend to be decreased rather than increased.

Suppose the chancellor's decree should be affirmed, and the defendant committed to jail until he pays the sum of $300 and other instalments of alimony, which, according to this record, he can only do by the practice of his profession. It is not perceived how this would better the situation. As stated by the supreme court of Mississippi in the recent case of Ramsay v. Ramsay (1921) 125 Miss. 185, 197, 14 A.L.R. 712, 715, 87 So. 493: "He cannot pay the alimony or any part thereof until he earns the money necessary for that purpose, and, if he should be confined in prison, he will not, while there, be able, of course, to earn any money at all, so that to commit him to prison would defeat the purpose sought to be accomplished."

Some courts, indeed, have gone to the length of saying that a husband who has no property, but is able to work, must be imprisoned, the theory being that this will put a pressure on him to raise the money somehow. Fowler v. Fowler (1916) 61 Okla. 280, L.R.A.1917C, 89, 161 Pac. 227.

Thus, it is stated (61 Okla., at page 286): "The attachment will bring the actual resources of the respondent to a practical and decisive test. Pressure is a great concentrator and developer of force. Under the stress of an attachment even the

vision of the respondent himself may be cleared and brightened, so that he will discern ways and means which were once hidden from him, or seen obscurely."

A contrary, and, as it seems to us, a better-reasoned, view of this question was taken by the supreme court of South Carolina in the case of Messervy v. Messervy (1910) 85 S. C. 189, 30 L.R.A. (N.S.) 1001, 137 Am. St. Rep. 873, 67 S. E. 130, by the supreme court of Alabama in Webb v. Webb (1903) 140 Ala. 262, 103 Am. St. Rep. 30, 37 So. 96, and by the supreme court of California in the case of Ex parte Todd, 119 Cal. 57, 50 Pac. 1071.

In the Alabama case, supra, the defendant made a sworn return to the rule, saying that he had no money or property with which to pay; that he had no employment, nor had he had any since the rendition of the decree, from which to earn money, etc.; and averred his readiness to pay as soon as he was able to procure the money.

The court says: "There seems to be no dispute about complainant being unable to pay the decree out of money or property, and the court so held. The only remaining insistence is that he is able to work, and will not work, to earn the money to make the payment, and the court ought to commit him for default in this respect. It is difficult to understand how the desired result was thus to be accomplished, and how the court would go about it. If complainant would not labor, the court was without power to inflict corporal punishment to compel him. If it imprisoned him until he was willing to work, that would not have. produced money meantime, but would have entailed expense for the imprisonment; and if imprisoned and he should relent and come in and signify his willingness to labor, employment would have to be obtained for him, by the court, by himself, or someone else; and how the court would have proceeded legally to hire him out, or supervise him, if he hired himself, and collect the

money for application to its decree, has not been made to appear. In any effort in this direction it might undertake, the court would be careful not to violate the law against peonage for the sake of earning money. Such an effort, if undertaken, might involve the court and its agents in trouble, into which we would not knowingly induce or compel them."

This is the view adopted in 1 R. C. L. 962, and 2 Schouler, Marr. Div. & Sep. 6th ed. § 1845.

In the latter text it is stated that "there is no contempt where the defendant is unable to pay, even though his inability arises from his wilful refusal to work."

With regard to the suggestion made in some of the cases that "the defendant himself holds the key to his prison," it may be observed that such an expression seems applicable rather to cases where a single act is to be performed-e. g., answering a question, signing a deed, or paying over money in the possession of the defendant.

(f) It is also to be observed that under the contention of the appellee there would be no limit to the duration of the imprisonment. If the defendant should refuse to practise his profession and earn money for the payment of the alimony, he might then be committed to jail for the rest of his natural life. Such a thought must, indeed, give us pause. It is reminiscent of "Bleak House," and the chancery court of Dickens's day.

Some of the states where imprisonment for failure to pay alimony is authorized expressly limit the duration of the imprisonment, and provide against more than one imprisonment. 2 Schouler, Marr. Div. & Sep. 6th ed. § 1850.

In New York, for example, the defendant can only be imprisoned once for failure to pay alimony; and where the amount to be paid is under $500, imprisonment is for not longer than three months; and where over $500, for not longer than six months. Chadwick v. Chadwick

(1915) 170 App. Div. 328, 156 N. Y. Supp. 190; People ex rel. Levine v. Shea, 201 N. Y. 471, 94 N. E. 1060.

(h) The record in this case discloses that the appellee has secured employment, and is working. We have already mentioned the property received by her from the estates of her father and brother since the divorce decree was granted. It has been held that the fact that the wife is receiving support from her father (Shaffner v. Shaffner [1904] 212 Ill. 492, 494, 497, 72 N. E. 447), or the fact that she is herself working (1 R. C. L. 961; 2 Schouler, Marr. Div. & Sep. § 1844; Nipper v. Nipper, 133 Ga. 216, 65 S. E. 405), cannot be considered as a defense to a contempt proceeding.

Assuming, without deciding, that this may be a correct rule in cases where the decree is flexible, and the whole matter under the control of the chancellor, we think the wife's employment is, at least, a circumstance to be considered in the present case. Ramsay v. Ramsay (1921) 125 Miss. 185, 14 A.L.R. 712, 715, 87 So. 491. There is nothing in the decision of Williams v. Williams, 146 Tenn. 38, 236 S. W. 938, which forbids this. It would surely be an extreme rule which declared that the husband must go to prison for an indefinite period, while the wife, in a case easily to be supposed, was enjoying a sufficient income, earned by her exertions in some congenial pursuit.

(3) After a careful consideration of the various principles involved, and after reading many cases from other jurisdictions, we are of opinion that there should be a distinction made where alimony is payable in future instalments, and is to be derived from the husband's labors, between those cases where the decree is flexible and under the control of the court, and those cases, like the present, where it has become rigid.

It is very easy for the chancellor to retain jurisdiction and control of the matter in these cases, and it has been said by this court that such is the proper practice.

"In a case of this character--that is, where a monthly or yearly allowance is decreed-the case should always be retained, in order that future decrees may be entered to meet the exigencies of the case." Taylor v. Taylor (1921) 144 Tenn. 311, 318, 232 S. W. 445.

Although we have found no case which, in terms, makes this distinction, it seems to have been recognized in Ex parte Davis (1908) 101 Tex. 607, 17 L.R.A. (N.S.) 1140, 111 S. W. 394, a case dealing with alimony pendente lite, where the court said: "The order made in this case was not a final judgment; for it was subject at any time to modification, or even to be set aside and annulled by the judge who entered it, and the performance of it could be by the judge excused at any time, upon a showing of inability or other good reason why it should not be performed."

In the English case of De Lossy v. De Lossy (1890) L. R. 15 Prob. Div. 115, the report of the case, which is very brief, shows the following facts:

"This was a suit for dissolution at the instance of the wife, and a decree absolute had been pronounced on February 29, 1883. By consent, an order was made at the hearing that the respondent do pay the petitioner by way of permanent maintenance the sum of £200 annually during their joint lives, the sum to be paid quarterly in advance. Towards the end of 1888 the respondent stopped the payments, and directed his solicitor to write to the petiticner that he had done so, in consequence, as he was informed and believed, of her not leading a chaste life.

"Inderwick, Q. C., moved to attach the respondent for nonpayment of the instalments due since January, 1889, the arrears amounting in all to £250."

The trial judge, Honorable Sir Charles Parker Butt, made this inquiry: "Has an attachment ever been issued by this court to enforce an order for a money payment made

under a final decree, and has it ever been held, in regard to a final judgment of the court directing money payments, that noncompliance was contempt of court?"

The motion was dismissed, the trial judge stating that he did not think the court "has any power to make such an order as now asked for."

In the case of Lynch v. Lynch (1885) L. R. 10 Prob. Div. 183, the wife filed her petition for dissolution of marriage, and by order dated April 21, 1885, the husband was directed to pay the sum of £22 costs already incurred, and to pay into the registry, or find security for, the sum of £50 to answer the petitioner's cost of the hearing of the suit. The husband failed to obey this order, and on affidavits of service and noncompliance, counsel for the wife, on June 9, 1885, moved for an attachment. It was claimed on behalf of the husband that no attachment would lie in favor of the Debtors' Act of 1865, which forbade imprisonment for "default in payment of a sum of money."

Sir J. Hannen said: "I entertain "I entertain no doubt that the respondent is guilty of a contempt of court if he has the means and does not find security. What may be the effect of such a contempt is another matter. It has for many years been the practice of the court so to consider this question, and I must act according ly and leave the court of appeal to alter the practice if it thinks proper. Attachment to issue unless security is given within a fortnight."

In the case of Bates v. Bates (1888) L. R. 14 Prob. Div. 17, the wife filed a petition for judicial separation, on account of the husband's cruelty, and in August, 1888, before the case came to a hearing, an order was made by Sir J. Hannen that the respondent should, within seven days, pay the solicitor of the petitioner the sum of £41, "being the amount of the petitioner's costs already incurred, as taxed, and should within the same time pay into court £40, estimated by the

register as sufficient to cover the costs and expenses of the petitioner of and incidental to the hearing of the cause, or give a bond under the hand and seal of the respondent and of two sufficient sureties for £80 for payment of the costs of the petitioner, not exceeding the sum of £40."

The husband having failed to comply with the order, the wife applied for leave to issue a writ of attachment against him for not paying the sum of £41 due for taxed costs, and for not paying into court, or giving security for the payment of, the sum of £40 for future costs and expenses; and the writ of attachment was granted.

The case was appealed, and opinions were delivered by Sir Henry Cotton, L. J., Sir Nathaniel Lindley, L. J., and Sir Charles S. C. Bowen, L. J.

Cotton, L. J., speaking of the sum of £41 taxed costs, says: "It was conceded by the counsel for the petitioner that the first part of the order could not be supported; it must, therefore, be varied in that respect."

But it was held that the latter part of the order, ordering payment into court of £40 for future estimated costs, or the giving of a bond to secure the same, was not in conflict with the Debtors' Act; and Lynch v. Lynch, supra, was cited on this point.

Lindley, L. J., expressed the view that the words "payment of money" did not refer to depositing a sum of money in court, and concludes: "The latter part of the order appealed from is right, and must be affirmed. The former part appears to have been made by an oversight, and the order must be varied in that respect."

Bowen, L. J., merely said: "I am of the same opinion."

It will be observed, in the first place, that in both these cases the suit was pending and under the control of the court, and, again, that the court refused to allow an attachment, even in such a case, for costs already accrued.

In some states of the Union it has

been held that alimony is merely a debt, which cannot be enforced by contempt proceedings. Re Kinsolving (1908) 135 Mo. App. 631, 116 S. W. 1068; Coughlin v. Ehlert, 39 Mo. 285; Segear v. Segear, 23 Neb. 306, 36 N. W. 536; Leeder v. State, 55 Neb. 133, 75 N. W. 541. And see Marsh v. Marsh (1903) 162 Ind. 210, 212, 70 N. E. 154; Allen v. Allen (1887) 72 Iowa, 502, 34 N. W. 303 (temporary alimony); Baily v. Baily (1886) 69 Iowa, 77, 28 N. W. 443 (temporary alimony); North v. North (1878) 39 Mich. 67.

But these holdings are exceptional, the majority of the state courts holding that the alimony is not merely a debt, but that its payment is an act which the court has ordered the husband to perform, and that he is in default for failure to obey the court's order in this behalf, and may be attached for contempt.

See the cases cited in the reporter's note to Adams v. Adams (1912) 80 N. J. Eq. 175, 83 Atl. 190, Ann. Cas. 1913E, 1083, 1087; in the case note in 24 L.R.A. 433; and in the notes to 19 C. J. 299, 300.

It will, however, appear on examination that in many (perhaps in most) of these states the court retains jurisdiction over the matter even after final decree. Some of the

cases will also be found to relate to temporary alimony, where the case is, of course, under the full control of the court. Others are perhaps to be explained by the Constitution or statutes of the particular state.

We do not mean to decide that the chancery court cannot, under other conditions, enforce the payment of alimony by attachment for contempt, for this question is not before the court; but we think that under the facts and circumstances shown by the rec- Contempt-to ord in this case at- enforce payment tachment for contempt is not a proper remedy, and that the appellee must enforce her claims for alimony by other appropriate proceedings.

of alimony.

(4) In this view of the case, we do not find it necessary to consider the appellant's contention as to involuntary servitude under the 13th Amendment to the Constitution of the United States.

It results that the Chancellor's decree and that of the Court of Civil Appeals will be reversed, the attachment and mittimus quashed, and the case remanded for further proceedings not inconsistent with this opinion.

Petition for rehearing denied.