Carlton v. Carlton

44 Ga. 216

Opinion

McCay, Judge.

1. The granting of temporary alimony in a divorce case is specially in the discretion of the Judge. The statute, Code, sections 1733, 1736, clothes him with power to examine into the whole matter, and to grant such alimony or to refuse, accordingly, as, from the circumstances of the separation and the ability of the parties, he shall judge proper. His judgment is not even final, but is, at any time, open to modification and re-examination by him. The nature, too, of the case demands that the affair shall be specially in his control, since the very daily sustenance of the wife is involved in its prompt adjudication. If subject, for slight causes, to review in this Court, it would be of little value, since, in its very nature, it is only temporary, and the very interregnum it is intended to cover, would be frittered away in litigation over it. For these reasons we feel it to be not only the law, but public policy, that this Court shall only interfere when there has been some clear abuse of power by the Judge.

2. We do not think this is such a case. The conduct of the husband has, as we think, been such as to call for but little sympathy; nor does the showing he makes at all excuse either his conduct towards his wife, or his failure, promptly, to obey the former order of the Court. Nor does his extraordinary devotion to the parol contract with his first wife strike us as worthy of nearly so much consideration as his counsel seem to think. We cannot but suspect that the pressure of present circumstances has much to do with this conscientious adherence to his promises, and we do not think the Judge erred in not giving it full consideration. We do not decide upon the validity of this parol marriage settlement, nor determine how far the present wife stands upon the footing of any other person who has dealt with the husband, as regards the effect of a parol agreement of this character. We simply say that the Judge has not, in our judgment, by his order, infringed upon any of the legal rights of the child of the first wife, and that there is sufficient in the whole case to justify the alimony granted.

3. Nor do we think section 18 of Article I., of the Constitution of 1868, abolishing imprisonment for debt, takes away the power of the Judge to commit to jail for contempt. Indeed, section 17 of the same Article, seems to imply the contrary, since it makes it the duty of the General Assembly to limit the power of the Courts to punish for contempts. We do not intend to say, that simply because a debt is adjudged by a decree in chancery, instead of by a judgment at law, it may therefore be enforced by imprisonment. The imprisonment must be clearly for the contempt of the process of the Court, and be of one who is able and unwilling to obey the order of the Court. It must be remembered also, that the imprisonment by a Judge for contempt, is always conditional, and is at his discretion, and may, at any time, by the same discretion, be discharged. And very clearly, it ought never to be resorted to, except as a penal process, founded on the unwillingness of the. party to obey. The moment it appears that there is inability, it would clearly be the duty of the Judge to discharge the party, since it is only the contempt, the disobedience upon which the power rests. Ordinarily, it would be improper to include in the order for alimony, the alternative order for imprisonment, on failure, since it is not to be presumed that a contempt will ensue. In this, case, however, we think it was justified. The defendant below had refused to obey a former order, and his whole conduct indicated very clearly that nothing but the stern order of the Chancellor to commit him on his disobedience, would bring him to the performance of what is his clear duty in the premises.

Judgment affirmed.