Bales v. Bales , 156 Ga. 679 ( 1923 )

Beck, P. J.

(After stating the foregoing facts.)

The fact that an execution might have been issued to enforce the payment of the sum allowed as alimony did not bar the plaintiff of her right to have the decree for alimony enforced' by attachment for contempt, under the facts and circumstances set forth in the petition. “ The power to enforce a decree for permanent alimony by attachment for contempt for failing to comply therewith belongs inherently to a court having jurisdiction of divorce suits.” Van Dyke v. Van Dyke, 125 Ga. 491 (54 S. E. 537). “"When a wife has obtained final decree for alimony and the husband fails to comply therewith, and it is sufficiently shown to the court that this, failure does not arise from lack of ability on part of the husband to comply, it is not error for the court to compel compliance, by an order of attachment directing his imprisonment in the event of his continued disregard of the decree.” Lewis v. Lewis, 80 Ga. 706 (6 S. E. 918, 12 Am. St. R. 281).

The defendant can not complain that the judge split the judgment of the plaintiff into small amounts. But inasmuch as the judgment of the court directs that monthly payments shall continue until the further order of the court, when in no event could the defendant have been compelled to pay more than the amount of the original judgment,' direction is given that the judgment be so amended as to provide that it shall not be enforced for an amount in the aggregate greater than the amount allowed in the decree in the divorce case, together with interest thereon.

There is no merit in the contention that the plaintiff’s demand is barred by the lapse of time. It was a little over seven years from the date of the decree until the date of the filing of the petition in the present case. The court was authorized to find that for more than half of that time the defendant had been absent from the State. The applicant in this ease was not compelled to have an execution issued; she could rely upon attachment for contempt. Whether under any circumstances, as this was an attachment for contempt, her demand would have been barred, we do not decide; but we do hold that it was not barred in the short time during which, after the rendition of the decree for divorce and for alimony, the defendant was in this State.

We can not say as a matter of law that the court erred in requiring the defendant to pay the amounts specified in the judgment, on the ground that the evidence touching the subject of the amount of property owned by the respondent and his earning capacity did not authorize it.

Judgment affirmed.

All the Justices concur.