Summary
In Lide v. Lide, 201 Miss. 849, 30 So.2d 51, it was held that a father was subject to a proceeding for, and guilty of, contempt of court for not complying with requirement of divorce decree fixing support of minor child of parties notwithstanding the mother and custodian of said child had failed to comply with a provision or requirement of the divorce decree permitting the father to see said child.
Summary of this case from Taliaferro v. FergusonOpinion
No. 36449.
April 28, 1947.
1. PARENT AND CHILD.
A father has duty of supporting his minor child even though it is not in his custody but that of its mother.
2. DIVORCE.
Where divorce decree fixes amount which father must pay for support of minor child, father failing to pay in accordance with decree becomes liable for contempt of court (Code 1942, sec. 2743).
3. DIVORCE.
Father is not relieved from duty of complying with provision of divorce decree fixing amount payable for support of minor child because of misconduct of mother such as refusing to permit father to see child as provided by divorce decree but court granting divorce has power to render a new decree conforming to requirements of changed circumstances (Code 1942, sec. 2743).
4. DIVORCE.
Father was subject to proceeding for contempt of court for not complying with requirement of divorce decree fixing support of minor child of parties notwithstanding mother and custodian of child had failed to comply with another requirement of divorce decree permitting father to see child (Code 1942, sec. 2743).
APPEAL from the chancery court of Lauderdale county. HON. GEO. B. NEVILLE, Chancellor.
Cecil A. Rogers, of Meridian, for appellant.
It is one of the oldest and most universal of the principles required to be observed by the court of chancery that, when a party seeks the interposition and aid of that court, such a party must show that in good faith and to the best of his ability and understanding he on his part has rendered unto the opposite party all the rights to which the latter is entitled in respect directly to the subject matter of the suit or petition, and this is true even as to many of those things which the defendant could not compel by independent suit.
Williams v. Williams, 167 Miss. 115, 148 So. 358.
Certainly this appellant did not disregard the decree, was not obstinate, nor can it be said that he did not have proper respect for the decree of the court. He did nothing to disparage the dignity of the court but has in the past and offered on this hearing to comply with the decree the very minute the appellee complies with the decree.
Amis on Divorce and Separation in Mississippi, p. 381, Sec. 275.
Advice of counsel will not serve generally as a shield to protect one from punishment in contempt proceedings for violation of an order of the court but where the order shown to have been violated does not in express terms forbid the action taken and where the advice of counsel was honestly sought and in good faith given and an examination of the record fails to disclose that circumstances are willful of the court's order, a conviction for contempt will not be sustained.
Furrer v. Nebraska Building Investment Co., 189 N.W. 285; In re Howard, 194 N.Y.S. 105.
A proceeding in civil contempt, to enforce payment, should not be conbined with a proceeding to punish a criminal contempt for a defiance of the court. In the latter case the punishment must be a fine, or imprisonment for a definite period; while in the former the punishment is imprisonment until payment of the amount due is made. In such a case the proof of guilt must conform to the rules in criminal cases. Mere proof of failure to pay, as required by the decree, would not be sufficient; nor would such a showing merely shift the burden to the defendant to exculpate himself. Proof of an intent to flout and defy the power of the court to compel performance of the decree, must be made beyond a reasonable doubt. And till that is done the defendant may stand mute.
Amis on Divorce and Separation in Mississippi, Sec. 286A; 6 R.C.L. 530 et seq.
Snow Covington, of Meridian, for appellee.
The parties were divorced and were living apart. The custody of little Jimmy Lide had been awarded to the mother. Therefore, the father was obligated, under the law, to support his child.
Lee v. Lee, 135 Miss. 865, 101 So. 345; Schneider v. Schneider, 155 Miss. 621, 125 So. 91; Russell v. Russell, 170 Miss. 364, 154 So. 881; 9 R.C.L. 479, Sec. 295.
The duty of support on the part of the father is a continuing duty. It is not terminated on the granting of a divorce or upon award of the custody to the mother.
When an allowance for the support of a child is made in a decree of divorce or separate maintenance it may, if necessary, be enforced by contempt proceeding as in case of an allowance for alimony.
Amis on Divorce and Separation in Mississippi, Secs. 232, 275.
Appellant relies on the case of Williams v. Williams, 167 Miss. 115, 148 So. 358. The Williams case is not applicable here for two reasons. First, the chancellor decided that Mrs. Lide had abided by the decree and was not in contempt thereof. Second, the Williams case involved alimony and not an allowance for the support of the child alone. Appellee did not refuse to permit appellant to see the child at reasonable times and places. She was willing for him to see him. She invited appellant to visit with and associate with the child. A different rule applies where the party receiving the benefit arbitrarily refuses to carry out the obligations placed on her by the decree under which she takes. She cannot abuse with one hand and receive with the other. In the case at bar the child was the beneficiary.
See Lancaster v. Lancaster, 29 Ill. App. 510; Zirkle v. Zirkle, 202 Ind. 129, 172 N.E. 192; Altschuler v. Altschuler, 246 App. Div. 779, 284 N.Y.S. 93; Campbell v. Campbell, 37 Wis. 206.
The parties hereto were formerly husband and wife, and had only one child. In November 1944, the court below rendered a decree dissolving the bonds of matrimony between them, gave the custody of the child, then five years old, to the appellee, its mother, "with the right of the defendant (the appellant here) to see the child at such time it is suitable and convenient; and the complainant (the appellee here) is awarded the sum of ten dollars ($10) per week beginning November 22, 1944, for the support of said minor child . . ." On the second day of March, 1945, another order was entered reducing the amount to be paid by the appellant for the support of the child at $7.50 per week, beginning March 3, 1945, and payable to the Chancery Clerk of Lauderdale County, Mississippi, instead of to the complainant, the appellee here.
The appellant paid this money to the chancery clerk in accordance with this decree for some time, but discontinued doing so, and in October 1945, filed a petition in the court below alleging that the appellee had not complied with the provision of the divorce decree permitting him to see the child. In May 1946, and while the appellant's petition for the citation of the appellee for contempt was pending, the appellee also filed a petition in the court below, alleging failure of the appellant to pay the weekly allowance by the court for the support of this minor child, and praying that he be held in contempt of court therefor. Neither of these petitions was answered; but no point is here made thereon, and they were tried together below in June 1946.
There was a conflict in the evidence as to whether or not the appellee had complied with the provision of the divorce decree permitting the appellant to see the child. The appellant admitted failing to make the weekly payments for the child's support, admitted his ability to make them, but said that he discontinued doing so on the advice of his counsel for the reason that the appellee herself had failed to comply with the provision of the decree as to being permitted to see the child. At the close of the evidence, the court rendered a decree "that petition as to Mrs. Lorene Lide be is dismissed B.C. Lide is ordered to make his payments for support of minor child of the parties from Oct. 31st 1946 current within 30 days from this date or be confined in the county jail of this county until he so does," thereby holding that appellee had complied with the provisions of the divorce decree and was therefore not in contempt of court. B.C. Lide, the husband and father, appeals.
It is the duty of a father to support his minor child even though it is not in his custody but that of the mother, and when granting a divorce, Section 2743, Code of 1942, permits the chancery court to fix the amount which the father must pay for the support of the minor children of the parties thereto, and which the father must thereafter pay in accordance with the decree or become liable for contempt of court in not so doing. He is not relieved therefrom because of any misconduct of the child's mother, though the court granting the divorce has the power to render a new decree conforming to the requirements of changed circumstances.
The appellant's claim that he is not subject to a proceeding for contempt of court for not complying with the requirement of the divorce decree, that he make weekly payments of $7.50 to the chancery clerk for the support of the child, for the reason that the appellee, the mother and custodian of the child, had herself failed to comply with another requirement of that decree is not supported by the case of Williams v. Williams, 167 Miss. 115, 148 So. 358, 88 A.L.R. 197. In that case the ex-wife was not permitted to complain of her ex-husband's failure to pay alimony allowed her in a divorce decree, for the reason that she herself had not complied with some of its requirments. What the appellee here is trying to do, is not to coerce the payment of alimony allowed to her, but the payment of money allowed in the divorce decree, not for her support, but for that of the child. Moreover, the appellee was here adjudged not to be in contempt of court, and, therefore, not to have violated the divorce decree.
Affirmed.