208 Ky. 658
Court of Appeals of Kentucky.
April 24, 1925.
Rehearing Denied, with Modification, June 5, 1925.
ACTION: Affirmed.

Appeal from Circuit Court, Bell County.
Action by Ella Hembree against Elbert Hembree. From an order overruling defendant's motion to vacate an order committing him to jail for contempt in failing to pay money to plaintiff and her attorney, he appeals.

In this action for divorce appellant was ordered to pay to his wife, the appellee, for the support of their infant child the sum of $25 a month until further orders of the court, and to pay to his wife's attorney the sum of $50 for his services in the action.

Having failed for more than two months to make any payment either to his wife or her attorney, a rule was issued against appellant, and upon his failure to file response or show cause why he had not done so it was ordered "that the jailer keep him in his custody until said order has been complied with, and said jailer took charge of him."

Thereafter, and on January 9, 1925, he filed a written motion to vacate the order committing him to jail for contempt, his affidavit in support thereof, and a verified answer to the rule, to which he had not previously responded. A demurrer was sustained to this answer, and, having declined to plead further, his motion to vacate was overruled, and it is from that order that he is now appealing.

The ancient remedy for enforcement of chancery decrees by attachment and imprisonment still exists in this state. Hence the order committing appellant to jail for failure to comply with the court's decree is not void, and the only question for decision is whether the allegations of the answer, taken as true, are sufficient to purge appellant of contempt in failing to comply with the decree.

The substance of the answer is that at the time of his commitment to jail "he had no funds and no property wherewith to comply with the aforesaid order of the court herein; and that he has not since received any funds or property wherewith he could comply therewith; and that he now has no money or property save a few cooking utensils, worth less than the sum of seven dollars and fifty cents ($7.50), * * * and he says that he is totally unable, by reason of his lack of money and property, to comply with said order or to pay to the plaintiff the sum which the court ordered him to pay."

It is well settled that in awarding money for the maintenance of his children the court may take into consideration the father's ability to labor and earn money and make an award based thereon, even though the father owns no property.

The mere fact, then, that a father has no money or property at a particular time is no excuse for his persistent refusal or failure to support his children, and, even if appellant had no money or property upon the day of his commitment and since, that fact is no excuse for his continuous failure for more than two months theretofore to make any payment whatever on the award for the support of his child. To have purged himself of contempt for his failure to comply with the court's orders he must have made it clearly appear, not only that he was unable to comply therewith, but also that his inability was not caused by his own neglect or misconduct.

As the answer simply stated appellant's inability to comply with the order at the time of his commitment to jail for contempt and since, it was clearly insufficient, and the court did not err in sustaining a demurrer thereto.

The fact that appellant may effect his release, under the Insolvent Debtor's Act (sections 2180-2185, Ky. Stats.), by complying with its provisions, as was expressly held in Napier v. Napier, 198 Ky. 233, 248 S. W. 529, is in no way involved in this case, and cannot affect its decision.

An independent action before another tribunal is prescribed by that act to secure release from custody thereunder, and even if, as stated in a petition for rehearing and not otherwise manifested by the record, appellant has wrongfully been deprived of such right by another court in a different action, that fact is not available to him here.

Judgment affirmed.

Ky.App. 1925.
271 S.W. 1100, 208 Ky. 658


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