Bailey v. Bailey , 127 W. Va. 826 ( 1945 )

I respectfully dissent from that part of the majority opinion which holds that the order entered by the trial chancellor was an order for the payment of money only, a departure from the rule in contempt theretofore issued, and is therefore appealable.

The pertinent parts of the order from which this appeal was taken are as follows:

"And it further appearing to the court that the defendant, on March 2, 1943, was in [d]efault in the sum of $780.00 in his payments of alimony and maintenance money to the plaintiff under said decree of September 13, 1943 [1937] and the same is accordingly adjudged, ordered and decreed.

"It is further adjudged, ordered and decreed that the defendant, Howard V. Bailey, do pay unto the plaintiff said sum of $780.00, being the said amount of alimony and maintenance money due the plaintiff under said decree of September 13, 1937, as of March 3, 1943, within thirty days from the entry of this decree."

I do not think the portions of the order above quoted are ambiguous, but assuming that an ambiguity exists therein, in order to resolve any doubt arising from the meaning and effect thereof, the petition and answer may be inspected in order to determine the meaning of the order. Jones v. Kuhn, 94 W. Va. 415,120 S.E. 888. An examination of the petition and answer in this proceeding makes plain the meaning of the order. It is clear to me that the first paragraph is nothing more or less than an adjudication of contempt against the defendant: the second paragraph thereof is a repetition of the adjudication made in the decree of September 13, 1937, and gives the defendant thirty days in which to purge himself of the contempt. In either aspect the second paragraph of the order makes a needless adjudication and therefore may be regarded as surplusage. Substance and not form should control. Looking to the substance of the order, I am of opinion that it is purely interlocutory in character, and does not finally dispose of the issues raised by the pleadings and proof. "A writ of error does not lie to a judgment of contempt for disobedience of a decree requiring payment of alimony." Pt. 5 syl., Smith v. Smith,

81 W. Va. 761, 95 S.E. 199. An interlocutory order in contempt a fortiori is likewise not appealable. Cherry v. Cherry, 253 Mass. 172,148 N.E. 570; In re Eskay (C.C.A.3d), 122 F.2d 819; Brinkley v. Brinkley, 47 N.Y. 40; Nutt v.State, 95 Miss. 422, 49 So. 145; Semrow v. Semrow, 26 Minn. 9,46 N.W. 446.

Instead of reversing the order of the Circuit Court of Harrison County, I would dismiss the appeal as improvidently awarded for the reason that the order from which the appeal was taken is interlocutory only.