Fultz v. Fultz

OPINION

By KUNKLE, PJ.

The above are the orders from which error is prosecuted to this court.

Counsel have submitted very exhaustive briefs. We have carefully examined the same and have also read the bill of exceptions.

The lower court evidently found that the defendant had made no substantial effort to comply with the order of the court in reference to alimony.

From the very brief testimony presented we can not escape the conclusion but that the defendant’s principal complaint in this case consists of the plaintiff’s failure to prosecute her suit for divorce and thus relieve him from his marital obligations.

Reference is made to a separation agreement which was entered into between the parties prior to the bringing of this suit.

This separation agreement is not made a part of the pleadings nor does it appear in the bill of exceptions or elsewhere.

Doubtless there were good reasons why the defendant did not desire this separation agreement to be brought to the attention of the court.

Without attempting to quote from the testimony in detail, the defendant admits that he is in arrears in the payment of alimony in the amount claimed by the plaintiff, and, among other things, on page 8 of the record, he says:

“I made that separation agreement at a time when I had a good salary and you gave me your, word that you people would go right on and get the divorce immediately, which you did not, and you intended to because you gave me your word of honor and you told me over the telephone repeatedly that you would do so and I refused to pay a definite monthly amount until you did so.”

(Black face ours.)

“Every time I was in default you were forced to contact me and you did and then at that time you assured me that just as soon as it could be heard, the case would be heard.

“Q. And you assured us that you would always pay your wife $60.00 a month as long as she remained unmarried? - A. You said we could not put all that in the divorce proceeding. I said if she would' get her divorce quietly and without a lot of publicity so that I could protect my position, and that was the only reason and that was the definite understanding.”

The record does show that defendant at one time agreed to pay his wife $60.00 per month as alimony and as above stated the principal complaint upon the part of the defendant that we are able to gather from this record is that the plaintiff has neglected to press her suit for divorce and secure a divorce from him.

This is not a case wherein the reviewing court might have arrived at a different conclusion from the testimony in reference to a modification of the amount of alimony awarded plaintiff.

The only question for a reviewing court to consider is does the record disclose that the trial court committed prejudicial error in overruling the motion of defendant for a modification of the former order of alimony and in finding defendant guilty of contempt for failure to comply with such former order. According to the record this is not a case where defendant is making an effort to comply or to substantially comply with the former order of the court with reference to alimony.

Upon a consideration of the entire record we would not feel warranted in holding that the trial court abused its discretion or committed prejudicial error in rendering the judgment which it did.

Judgment of the lower court will be affirmed.

BARNES and HORNBECK, JJ, concur.