Peterson v. Peterson ( 1927 )

¹ Reported in 216 N.W. 940. Action for a divorce upon the grounds stated in the complaint. Defendant answered denying the allegations of the complaint and asking for a divorce from plaintiff upon the ground of cruel and inhuman treatment. Subsequently an order was made requiring defendant to pay certain temporary alimony and suit money. Defendant failed to comply with the order and such proceedings followed that he was adjudged in contempt of court and sentenced to the county jail for a term of 60 days. When the case came on for trial, plaintiff objected to the defendant's participating therein because of his default in complying with the order of the court or giving any excuse for such failure.

The only punishment which the court could impose upon the defendant in the contempt proceeding under G.S. 1923, § 9794, was a fine or imprisonment. He had been summoned into court to answer the complaint. For such purpose he was entitled to his day in court. A litigant may not be denied his day in court as punishment for failure to pay alimony. 2 Schouler, Marriage, Divorce (6 ed.) § 1857; Hovey v. Elliott, 167 U.S. 409,17 S. Ct. 841, 42 L. ed. 215; Naveja v. Naveja, 110 Misc. 279,179 N.Y.S. 881; Gordon v. Gordon, 141 Ill. 160, 30 N.E. 466, 21 L.R.A. 387,33 A.S.R. 294; McMakin v. McMakin, 68 Mo. App. 57. When a court has once imposed full punishment for an offense, it cannot again impose an additional penalty for the same offense. Foley v. Foley, 120 Cal. 33, 52 P. 122, 65 A.S.R. 147.

The defendant had a right to appear and cross-examine the plaintiff and her witnesses. He also had a right to be heard upon the amount and value of his property as bearing upon the question of alimony to be allowed. He was denied these rights, which entitles him to a new trial. It is clear from the settled case that the evidence in support of the amount of alimony allowed is insufficient to warrant the judgment as entered. It follows that the judgment must be set aside and a new trial granted.

Reversed.