Summary
In Fanchier v. Gammill, 155 Miss. 316, 124 So. 365, 366 (1929), a Nevada Court had awarded a wife alimony which, because of arrearages, she was forced to reduce to a judgment in Mississippi.
Summary of this case from Levine v. LevineOpinion
No. 28094.
November 11, 1929.
1. DIVORCE. Decree providing that, on failure to pay alimony allowed, execution should issue, held not to limit enforcement of decree to execution thereon.
Where the chancery court in a decree for alimony directed the payment of alimony, fixing the sum thereof, and provided "that on failure to pay the amount directed to be paid execution shall issue," this does not have the effect of limiting the court in enforcing the decree to execution upon the judgment, but the court may proceed under contempt proceedings, garnishment, exeat republica, or other appropriate means of enforcing this decree.
2. DIVORCE. Chancery court may enforce another state's decree for alimony by contempt proceedings and other legal methods ( Constitution 1890, section 159).
Under section 159 of the Constitution of 1890, the chancery court has full jurisdiction of divorce and alimony, and may enforce a decree or judgment of another state for alimony, and in enforcing its judgment may use contempt proceedings as well as other legal methods of coercing the performance of the duty to pay alimony.
3. CONSTITUTIONAL LAW. Husband and wife. Husband's obligation to support wife is not merely contractual, but is founded partly on public policy; husband's obligation to support wife is public duty not "debt" within constitutional prohibition against imprisonment for debt; husband may be forced to support wife by contempt proceedings or criminal statute.
The obligation of the husband to support his wife is not merely a contractual obligation, but is founded in part upon the public policy; it is a public duty established by law, and not a debt in the ordinary sense of that term, or in the sense of the Constitution prohibiting the imprisonment for debt, but the husband may be forced to perform this duty by contempt proceedings or by criminal statute.
4. DIVORCE. That decree fixing alimony is marked O.K. by husband's attorney before chancellor signs does not make decree "consent decree," but merely shows it to be in proper form.
Where a decree of the chancery court fixing the amount of alimony and directing its payment is followed by a provision that, if not paid, execution shall issue, and the decree so drawn before being signed by the chancellor is marked O.K. by the husband's attorney, this does not constitute the decree a consent decree, but merely shows the decree to be in proper form to conform to the oral judgment rendered by the chancellor.
APPEAL from chancery court of Hinds county, First district. HON. V.J. STRICKER, Chancellor.
Franklin, Easterling Rosenthal, of Jackson, for appellant.
The inclusion of the phrase, "that execution issue as upon a judgment at law," in the decree does not constitute an election nor does it limit its effect as though it were a judgment at law. The power to punish by fine and imprisonment for failure to carry out its orders and decrees is an inherent power of the chancery court.
Delgado v. Clavez, 140 U.S. 586, 35 L.Ed. 578; Durhan v. State, 52 So. 627; Wood v. Ratliff, 103 So. 356; 19 C.J. 302; Sec. 1483, Hemingway's Code 1927 (Sec. 1415 Hemingway's Code 1917); Rhinehart v. Rhinehart, 126 Miss. 488, 89 So. 152; 19 C.J. 216; Ramsey v. Ramsey, 87 So. 491, 125 Miss. 185; Edmonson v. Ramsey, 84 So. 455; Murphy v. Hutchison, (Miss.), 48 So. 178; Madden v. Louisville N.O. T. Ry. Co., 66 Miss. 258, 6 So. 181; Fried Erichsen v. Renard, 247 U.S. 207, 62 L.Ed. 1075.
J.M. Stevens, of Jackson, for appellant.
The chancery court has full jurisdiction under our constitution of divorce and alimony, and as a part of that jurisdiction may enforce payment of the decree, not only by execution but by contempt proceedings.
Cadenhead v. Estes, 99 So. 361.
Appellant has waived nothing nor is she estopped to claim benefit of contempt proceedings by simply writing into the decree language which the statute imports and language which by immemorial custom has been written into every judgment at law since the foundation of our state jurisprudence.
Sec. 418, Hemingway's Code of 1927.
Watkins, Watkins Eager, of Jackson, for appellee.
Where it is apparent from the record that no evidence was taken and a decree entered upon the "O.K." or approval of opposing counsel, such a decree is a consent decree.
21 C.J. 814; 12 C.J. 520; 15 R.C.L. 646; 34 C.J. 129, paragraphs 331 and 332; Indianapolis D. W.R.R. Co. v. Sands (Ind.), 32 N.E. 722; Hohenadel v. Steele (Ill.), 86 N.E. 717; Chicago Vincinity Hungarian Benev. Soc. v. Chicago Suburb Hungarian Aid Society (Ill.), 118 N.E. 1014.
A consent decree must be construed as a solemn contract and agreement between the parties.
21 C.J. 815; Hohenadel v. Steele (Ill.), 86 N.E. 717; 15 R.C.L. par. 87, pages 644 and 646.
The sole remedy to which appellant becomes entitled upon a failure to pay is that of execution to be issued in like manner as though the judgment was one at law, because of said solemn contract in the consent decree.
19 C.J. 305; Traylor v. Richardson, 2 Ind. App. 452, 28 N.E. 207.
This is the second appeal of this case. The first appeal is reported under the style of Fanchier v. Gammill, 148 Miss. 723, 114 So. 813. The former appeal was on a suit in the chancery court to reverse a judgment for alimony rendered in the state of Nevada in which the court of that state entered a judgment, or decree, divorcing Paul Gammill and Cherie Fanchier Gammill, awarding alimony to Cherie Fanchier Gammill and restoring her maiden name, Cherie Fanchier.
The court, on the first appeal, reversed the decree of the chancery court which had declined jurisdiction on the ground that the action was entertainable only in a court of law. It was there settled that the chancery court had jurisdiction and could enforce the judgment by all the remedies available in a domestic suit of like character, and we remanded the cause to the court below for further proceedings. When the case was remanded, the defendant, Gammill, answered the bill, admitting the foreign judgment and all of the allegations of the bill practically, except a statement in the bill of complainant that the complainant was without means of support, and that the defendant, Gammill, had means of satisfying the judgment. Whereupon a decree was entered directing Gammill to pay the past-due installments of alimony in a decree reciting, among other things: "It is therefore hereby ordered, adjudged and decreed by the court that the complainant, Cherie Fanchier, do have and recover of and from the defendant, Paul Gammill, the said sum of eight hundred sixty-two dollars, together with six per cent interest therefrom from this date, and together with all costs of court, and that the defendant be, and he is hereby, ordered and required to pay the said sum of money and upon failure so to do, that execution issue as upon a judgment at law."
The defendant, Gammill, did not pay the amount so decreed to be paid, and a petition was filed praying that Gammill be cited to show cause why he should not be held in contempt of court for failure to pay and satisfy the decree as directed by the court. The petition set forth the substance of the former suit, and alleged that the complainant here, Cherie Fanchier, was still unmarried, and that the decree was in full force and effect, and was the final decree. It set forth the proceedings theretofore taken, and prayed that the court would make a rule on the defendant, Gammill, to appear before the court and then and there show cause, if any he can, why he should not be adjudged in contempt of this honorable court, and that the court will adjudge the said Paul Gammill to be in contempt, it shall make an order to enforce the obedience of the orders of the court on the part of the defendant, and all other orders necessary that justice may be done in the premises, and for other proper relief.
The defendant appeared, and moved to dismiss the citation for contempt. The motion reads as follows:
"And now comes the defendant and moves the court to dismiss the citation and information for contempt pending in this honorable court and, as ground therefor, shows unto the court that the decree in this cause rendered by this honorable court at the last term is by its terms limited by its effect as a judgment at law, and that even if the defendant has failed to pay and satisfy said decree it is no cause for contempt proceedings against said defendant."
The court sustained this motion, and dismissed the proceeding, from which decree this appeal is prosecuted.
It is contended that the stipulation in the decree above recited "that on the failure to pay the amount directed to be paid that execution should issue" is in effect an election of remedies limiting the remedy of the complainant to that of execution upon the judgment.
It is also contended that, when this decree was prepared, it was marked "O.K." and signed by the initials of the defendant's attorneys, and was entered upon bill and answer, and that it was a consent decree, and by its terms the complainant was limited to execution as a remedy for collecting the judgment.
We think the court was in error in so holding. Section 159 of the Constitution of 1890 conferred upon the chancery court full jurisdiction of divorce and alimony, among other things. The demand upon which the judgment was taken was alimony, and the former opinion of the court settled the question of jurisdiction and power of the court to enforce an alimony allowance rendered in the court of a foreign state and therein to exercise appropriate powers and jurisdiction to enforce its judgment. Among the remedies for enforcing a judgment of this character is the right to proceed by contempt proceedings for a failure to comply with the directions of the decree. We do not think the terms of the decree here involved can rightfully be construed to hold that execution is the only proceeding that can be taken to enforce the judgment. A court may enforce such judgment in any appropriate proceeding recognized in the law; it may proceed by execution, by garnishment, by contempt proceedings, and by writ of ne exeat republica, and none of these remedies preclude resorting to any other.
The obligation of the husband to support his wife is not a contractual one, that is, it is not founded exclusively in contract, but is founded, as stated in the former opinion, partially upon public policy. It is a public duty established by law, and is not a debt in the ordinary sense of that term, or in the sense of the Constitution prohibiting imprisonment for debt. It is an obligation which the defendant may be forced to perform by contempt proceedings or by criminal statute.
We do not think the decree entered is a consent decree, and it is doubtful whether the court could be deprived of its power to enforce its judgments by mere agreement, but, however that may be, the court was in error in the case before us in dismissing the petition. The defendant should have been required to make the showing prayed for, and the court should have entertained the petition and heard the parties and acted in accordance with law and the evidence developed in the proceeding.
The judgment of the court below will therefore be reversed, and the cause remanded to be proceeded with in accordance with law.
Reversed and remanded.