Knight v. Sager

WRIGHT, Presiding Judge.

This is an appeal from denial of a petition for writ of habeas corpus.

Appellant, Samuel Earl Knight, was incarcerated in the Monroe County jail on October 28, 1978, for failure to make support payments to his ex-wife. He filed a petition for writ of habeas corpus and a motion to proceed in forma pauperis along with a supporting affidavit of poverty on March 21, 1979. Without evidentiary hearing the trial court granted appellant’s motion to proceed in forma pauperis but denied the petition for writ of habeas corpus.

In appellant’s affidavit of poverty, he swore that he had no job, no money, and no assets. Our cases have held that imprisonment for contempt should never be imposed by a judge where the failure to pay support is not from willful contumacy, but from inability to comply with the order. Hayes v. Hayes, 339 So.2d 84 (Ala.Civ.App.1976); Muery v. Muery, 46 Ala.App. 617, 247 So.2d 123, cert. denied, 287 Ala. 737, 247 So.2d 128 (1971).

Because of the trial court’s grant of the appellant’s motion to proceed in forma pau-peris, we consider the record shows the appellant financially unable to purge himself of contempt. He is therefore entitled to be discharged from custody.

The denial of habeas corpus is reversed and the trial court is directed to grant the writ and discharge the appellant from custody.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.