Stuart v. Stuart , 123 Mass. 370 ( 1877 )

Gray, C. J.

This is a petition for an attachment for a contempt in neglecting and refusing to obey an order of this court, requiring the respondent to give bond for the payment of alimony to the petitioner! No question as to the form of the petition has been argued or considered. The only question reserved is whether, upon the facts stated in the report, an attachment should issue. But we have not sufficient facts before us to enable us to decide that question.

The respondent’s conveyance and transfer of his property, in anticipation of his wife’s filing a libel against him for a divorce and alimony, and with intent to prevent the execution of any decree for alimony that she might obtain, were a fraud upon her, for which she might in proper form have redress. Burrows v. Purple, 107 Mass. 428, 435. But they could not of themselves constitute a contempt of court; because a person cannot be in contempt of court for disobedience of an order not yet passed, in a suit not yet begun, and of which therefore he cannot have had notice. Thompson v. Baskervill, 3 Rep. in Ch. 114. Winslow v. Nayson, 113 Mass. 411. In re Chiles, 22 Wall. 157, 169.

Such conveyance and transfer by the respondent, with the fact that the grantees were his son-in-law and daughter, were competent evidence upon the question whether the respondent now has in his possession or control the means of obeying the order of the court, and is consequently in contempt for disobedience of that order. But this is a question of fact, which has not been passed upon below, and cannot be reported for the determination of the full court. Gen. Sts. e. 112, § 10. Sparhawk v. Sparhawk, 120 Mass. 390. The matter must therefore stand for Further hearing before a single judge.