Mississippi Supreme Court, 1942

Evans v. Evans

Mississippi Supreme Court · Decided September 28, 1942 · Alexander

9 So. 2d 641; 193 Miss. 468; 1942 Miss. LEXIS 116 (Southern Reporter, Second Series)

Counsel

Lee M. Russell, of Jackson, for appellant. This appellant answered promptly the command of the court to be present, made sworn answer thereto, giving all the details of his expenses and inability to pay the judgment against him. As he had advised the court therein fully of his condition and the reasons why he had not met the judgment of the court, he had done all in his power to purge himself of the alleged contempt. He did not give testimony, it is true, but was excused therefrom by order of the court. He was immune therefrom by the order of the court. If the court was incorrect in thus giving appellant immunity from testifying, then surely he cannot be legally responsible for standing upon the court's order. The court held that appellant was guilty of a "criminal contempt" in not obeying the court's decree and hence the court was correct in granting him immunity from testifying. There is not one particle of evidence in the pleadings or in the testimony of Mrs. Evans' sole and only witness to sustain the complaint. No prima facie case was made out by any construction of the record on the pleadings or the evidence — all courts demand some proof before the liberty of a citizen can be taken from him. In proceedings for criminal contempt the defendant is presumed to be innocent; he must be proved to be guilty beyond a reasonable doubt and cannot be compelled to testify against himself. Gompers v. Buck's Stove R. Co., 55 L.Ed. U.S. 797. See Grace v. State, 108 Miss. 767 , 67 So. 212; Ramsay v. Ramsay, 125 Miss. 715 , 88 So. 280; Griffith's Miss. Chancery Practice, Secs. 665-672. V.D. Rowe and H.T. Holmes, both of Winona, and A.J. Coleman, of Vaiden, for appellee. A trial was had in which competent testimony was heard by the chancellor, to the effect that the appellant had neglected to make the payments required of him by the court's decree of divorce. No testimony was offered to sustain defendant's answer; and the chancellor entered the decree finding appellant in contempt by reason of his failure to obey the original decree and make the payments. Counsel for appellant takes the position in his brief that the proof before the chancellor was insufficient to warrant his finding of guilt of appellant. We submit that counsel is mistaken as to this and that he misapprehends the law on this point. As we understand the law and the decisions of this and other supreme courts, all the petitioner had to prove, after the respondent filed his answer and appeared personally in court represented by counsel, was that the respondent had failed to make the payments required of him by the decree of divorce. The duty of proving his excuses by competent testimony then rested on the appellant. When he failed to testify or produce testimony by others to substantiate his answer then the chancellor was warranted in rendering the decree adjudging appellant guilty of contempt. Griffith's Miss. Chancery Practice, Sec. 669, p. 778. The petitioner had the burden of only one thing and that was to show that the appellant had not complied with the decree of the court. It then behooved appellant to prove his excuses contained in his answer, and, when he failed to produce any kind of testimony, he could not expect any result other than that the chancellor found him guilty of contempt. Argued orally by Lee M. Russell, for appellant.

Opinion of the Court

Alexander, J.,

delivered the opinion of the court.

This case involves the right of a chancellor to imprison a party for alleged contempt in failing to make alimony payments as required hy a former decree.

This cause was heard on motion by appellee for citation against appellant to show.cause why he should not be adjudged in contempt for failure to comply with a former decree of divorce which ordered payment by appellant of solicitor’s fee and alimony. The petition alleged “that the said defendant has not complied with said decree as to said payments to he made by him. ’ ’ An allegation that such failure was wilful and contumacious was stricke out by the pleader.

Demurrers to the petition were overruled and although such action is assigned as error we will not, in view of our conclusions, discuss such assignment. The defendant filed answers under oath denying that he had wilfully or contumaciously refused to obey the decree for alimony, and alleging his physical and financial incapacity so to do. A detailed financial statement was made exhibit which showed that defendant owed $457, and average monthly expenses $113.38. The only testimony adduced was that of petitioner, appellee herein, and this disclosed merely the fact of the divorce, the decree for alimony and solicitor’s fees, and the substantial failure of appellant to meet the alimony payments. There was no other testimony although petitioner sought to call defendant as an adverse witness. Objection thereto, on the ground that the proceeding was quasi criminal and defendant could not be required to give evidence against himself, was sustained by the court.

*472 Iii the opinion of the court, made a part of the record, it was held that “the defendant ceased (sic) to give evidence to purge himself of contempt of court and the burden is on him to do this and the court finds that the defendant is in wilful, deliberate and contumaciously (sic) in contempt of this court, and he is committed to jail for sixty days for wilful disobedience of the court’s order . . .” In its final decree it was ordered that the defendant be “sentenced to jail in the Second Judicial District of Carroll County, Mississippi, for sixty days from this date for his wilful and contumacious disobedience and disregard of the court’s order aforesaid in failing to pay the support money for his. child as provided in the decree of the court rendered June 14, 1940. ’ ’ We shall decide only the regularity of this decree for unconditional imprisonment.

Section 367, Code 1930, provides that “the chancellor in vacation . . . shall have power to punish any person for breach of . . . any other order, decree, or process of the court, by fine or imprisonment, or both . . .” Section 741, Code 1930, provides that “. . . if any . . . person l-efuse to obey or perform anv rules, order, or judgment of the court, such court shall have power to fine and imprison such . . . person . . . until the rule, order, or judgment shall be complied with.” These two sections provide respectively for criminal and for civil or quasi criminal contempts. Order for imprisonment in the former case is for a past and completed act or omission, is punitory and must be suffered; in the latter case the punishment is coercive and the contemnor may discharge himself by compliance with the terms of the decree violated. The first is to preserve the power and vindicate the dignity of the court; the latter is to compel obedience to its decrees. Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491, 14 A. L. R. 712; Id., 125 Miss. 715, 88 So. 280; Griffith, Chancery Practice, Sec. 666; Amis, Divorce and Separation in Mississippi, Sec. 275; et seq.

*473 Although the court in ruling on the demurrer referred to the action as one involving civil contempt, the petition did not seek future compliance with the decree and the contempt alleged therein was treated throughout as a criminal contempt. There was no attempt to coerce compliance with the decree for alimony by a decree nisi as by fine or imprisonment conditioned upon compliance. Reference to the opinion and decree of the court above quoted shows that the omission was punished as a criminal contempt and for a past offense. Such course is consistent with the court’s action in granting the defendant immunity from self-incrimination. So that, conceding the power of the court to imprison for criminal contempt, it remains for ns to examine whether the evidence supports the charge and justifies the order of the commitment. As stated, the only evidence adduced was the testimony of appellee as to the mere fact that the alimony had not been paid. Is this sufficient to establish a prima facie case of “wilful, deliberate and contumacious refusal” necessary to criminal contempt? We think not.

Regardless of the rule as to the essentials of a prima facie case in civil contempt, mere proof of failure to pay alimony without more is not sufficient to make a case of proof beyond a reasonable doubt of an intent deliberately and contumaciously to defy the power and dignity of the court justifying imprisonment as for criminal contempt. Not only the procedure but the proof must reasonably conform to practice in criminal cases. Magee v. State, 99 Miss. 83, 54 So. 802; Grace v. State, 108 Miss. 767, 67 So. 212; Ramsay v. Ramsay, supra; Collins v. Collins, 171 Miss. 891, 158 So. 914; Amis, op. cit. supra, Sec. 286A; 12 Am. Jur., Contempt, Sec. 75; 17 C. J. S., Contempt, Sec. 84, subsecs, a, c.

We are of the opinion that under the record here made the punitory sentence was not warranted.

Reversed and remanded.

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