Smiley v. Smiley

Mount, J.

On the 20th of November, 1912, a decree of divorce was entered in favor of the respondent, which, among other things, awarded the respondent alimony at the rate of twenty-five dollars per month. The appellant was in default in the payment of this alimony, and on the 14th of November, 1916, the lower court entered an order citing the appellant to appear and show cause why he had failed to pay the alimony and why he should not be punished for failure to comply with the terms of the divorce decree. The appellant appeared to that order and filed his affidavit, in which he set out in detail his business affairs, alleging that he had no property and no funds, and no prospect of receiving funds from which to pay the alimony, or any part thereof. This affidavit was not denied. Thereupon the court entered an order requiring the appellant to pay to the divorced wife the sum of fifty dollars or be deemed in contempt of court. This appeal is prosecuted from that order.

In Holcomb v. Holcomb, 53 Wash. 611, 102 Pac. 653; Boyle v. Boyle, 74 Wash. 529, 133 Pac. 1009, and Crombie v. Crombie, 88 Wash. 520, 153 Pac. 306, we held, in substance, that a divorced husband cannot be adjudged guilty of contempt for failing to pay alimony where it appears by clear and satisfactory evidence that he has neither the means nor the ability to do so. The affidavit of the appellant, in which he declared he had ño funds and no means of raising funds, being undenied, brings him within the rule stated.

We are of the opinion, therefore, that the court erred in entering the order requiring him to pay the fifty dollars, or be deemed in contempt. The order appealed from is therefore reversed.

Ellis, C. J., Chadwick, Moréis, and Holcomb, JJ., concur.