Johnson v. Johnson

Horney, J., delivered the opinion of the Court. The question posed by this appeal is whether, under the circumstances of this case, a father, charged with the support of his children, should have been imprisoned until he purged himself of contempt for failure to pay in full the arrearages that had accumulated over a period of several years. When the father was divorced from the mother of their three children on October 19, 1961, he was ordered to pay the mother fifty dollars a week for the support of the children. Although he complied with the order for about twenty months, he thereafter began decreasing the weekly payments until he was paying only twenty-five dollars a week.

As a consequence, the arrearages became progressively greater. This, in part at least, was attributable to the fact that his net weekly income had been reduced to approximately eighty-four dollars a week. The salary he received was his only source of income other than the rents from a double house he owned but operated at a loss due to its location and condition. During the period the arrearages were accumulating, the mother, besides seeking an increase in the amount of payments from time to time, filed several petitions for attachment of the father for failure to make the payments as stipulated, and he, in turn, filed several petitions for a reduction in the amount ⁴¹⁸ of the support payments.

The court, however, despite repeated requests therefor, would not consider a reduction in the weekly payments to an amount the father could reasonably pay. At a hearing on October 7, 1963, when the arrearages were $380, the lower court dismissed all pending petitions. Thereafter, the arrearages having increased to $1160, the court, at another hearing on June 15, 1964, on new petitions for attachment and reduction of payments filed in the interim, denied a request for reduction and found the father guilty of contempt, but held the matter in abeyance. On this occasion, the father, accepting a suggestion the court made, promised to sell the double house in order to pay the arrearages.

Apparently because the promise had not been promptly complied with, a third hearing was held on October 9, 1964. Thereat, the father agreed to reduce the asking price by several thousands of dollars and renewed his promise ■ to sell the property and apply the net proceeds to the then arrearage of $1550 after first paying the mortgage indebtedness and a commission for making the sale. When the property was finally sold the net proceeds amounted to $1968.28. The father having remarried (with the understanding, we are told, that the contracting parties would pay their own cost of living) before the sale of the property, the second wife, who was an attorney at law, refused to waive her dower interest and was paid $656.09 before she would consent to execute the deed.

This left a balance of $1312.19, out of which was paid $560.40 for the repairs necessary to put the property in saleable condition and for other incidentals, leaving a net balance of $751.79 to be applied to the arrearages which by that time amounted to $1965. At the final hearing on March 9, 1965, the court, having questioned the necessity of preparing the property for sale and challenged the right of the second wife to claim a dower interest in the property, concluded that the father had acted in bad faith and reinstated the effectiveness of the previously entered finding of contempt. And this appeal followed. The father contends that through no fault of his own he was unable to make the payments required by the court, that the