Shahan v. Shahan , 204 Ga. 342 ( 1948 )

The evidence did not show conclusively as a matter of law that the husband was unable to comply with the judgment awarding temporary alimony, and the judgment holding him in contempt will not be reversed by this court.

No. 16385. OCTOBER 11, 1948. On June 4, 1948, a judgment for temporary alimony was entered requiring the husband (plaintiff in error) to pay $60 on the 15th and 30th of each month to the attorneys for the wife for the support of the wife and their four minor children. The judgment provided that he should also pay the sum of $50 as attorneys' fees on or before June 30. The husband did not make the payments as provided by the judgment, and on the petition of the wife he was cited to show cause why he should not be attached for contempt. On August 2, a judgment was rendered adjudging the husband in contempt of court for failure to make the payments as directed by the former judgment. It was ordered that he be confined in the common jail of the county "until he purges himself of contempt of this court by paying the balance due for alimony and attorneys' fees, as provided in the order of June 4, 1948."

The wife did not testify in the contempt proceedings. Her counsel testified in some detail with reference to the payments made by the husband, and as to certain expenses reported to counsel by the husband as having been necessarily incurred by the husband. It is undisputed that, during the period from June 4 to August 2, the husband had earnings of $503.90. During this period he paid to counsel $103 as alimony for the wife and minor children. The alimony due and accrued in the period was $290. At the time the four partial payments were made by the husband he reported to counsel for the wife that he had incurred expenses in the sum of $347.94, and exhibited certain receipts in support of his contentions.

The husband testified that he paid for the benefit of his wife all the money he had after the payment of actual living expenses, and certain necessary expenses pertaining to his work. The response of the husband to the citation alleged that certain moneys were paid to the wife prior to the alimony judgment. The payments, if made as alleged, are not involved in this proceeding. Counsel for the plaintiff in error strongly insists in this court that the evidence shows without dispute that the plaintiff in error (husband) is unable to pay the amount awarded as temporary alimony and attorneys' fees, and that the judgment holding him in contempt should be reversed. SeePinckard v. Pinckard, 23 Ga. 286; Davis v. Davis,138 Ga. 8 (74 S.E. 830); Potter v. Potter, 145 Ga. 60 (88 S.E. 546); Lightfoot v. Lightfoot, 149 Ga. 213 (99 S.E. 611); Heflinger v. Heflinger, 172 Ga. 889 (159 S.E. 242, 76 A.L.R. 386). It is the duty of the trial court to determine from the evidence whether or not the husband has in good faith endeavored to comply with the court's order fixing the amount of temporary alimony. In this case it is not shown that the husband's resources were exhausted in an effort to comply with the judgment for temporary alimony. The undisputed evidence shows that certain sums of money (approximately $52) were earned by the husband over and above amounts paid as alimony and the amounts claimed by the husband to have been expended as living and business expenses. It is not shown by any testimony that the husband could not have made the payments of temporary alimony from assets other than his salary. This case is controlled by the rule stated in Reese v. Reese, 189 Ga. 314 (5 S.E.2d 777). See also Snider v. Snider, 190 Ga. 381 (9 S.E.2d 654); Arnold, v. Arnold, 195 Ga. 304 (24 S.E.2d 12).

Judgment affirmed. All the Justices concur, except Bell, J.,absent on account of illness.