Ex parte Todd

50 P. 1071, 119 Cal. 57, 1897 Cal. LEXIS 845

• Court: California Supreme Court
• Decided: November 11, 1897
• Docket: Crim. No. 362
• Status: Published

Opinions

THE COURT.

Petitioner’s wife obtained a decree of divorce, including an order for the payment of permanent alimony in weekly installments. After paying two hundred and eighty dollars, the petitioner ceased making further payments, and, at the instance of the plaintiff in the divorce suit, was cited by the superior court to show cause why he should not be punished for contempt of the order of the court in failing to pay the sum of two hundred dollars in arrears, and also to show cause why he should not pay to plaintiff said sum of two hundred dollars.

Petitioner appeared in response to the citation, and, after hearing testimony pro and eon, the court found, among other facts, that he had no money or other means of payment,. and that he had made no disposition of any property in fraud of his creditors.

The court found, in other words, that it was not in the power of the petitioner to pay the money, or any part of it. But, at the same time, the court found that petitioner, having been allowed a month or thereabouts to seek employment by which, he might have earned money to make the weekly payments of alimoney as prescribed in the order, had wholly failed and neglected to make any effort to obtain employment, and, therefore, ordered him to be imprisoned in the county jail until he paid the two hundred dollars due.

This order was clearly in excess of the power of the court, which cannot compel a man to seek employment in order to earn money to pay alimony, and punish him for his failure so to do.

Prisoner discharged.