Opinion

Ensley v. Ensley

  • 239 Ga. 860
  • 238 S.E.2d 920
  • 1977 Ga. LEXIS 1360
Court
Supreme Court of Georgia
Filed
Oct 20, 1977
Status
Published
Author
Jordan
On the bench
Hill, Jordan
Cited by
37 cases
Authority
More cited than 7.0%

reciting principles that “imprisonment conditioned upon payment of alimony is not imprisonment for debt where the contemnor is found to be able but unwilling to pay”; that “[a] man who refuses to pay alimony or child support when he is able to do so is imprisoned for his refusal to abide by the court’s order, not for debt”; that “[t]he imprisonment must be clearly for the contempt of the process of the court, and be of one who is able and unwilling to obey the order of the court”; and that “[t]he moment it appears that there is inability, it would clearly be the duty of the judge to discharge the party, since it is only the contempt, the disobedience upon which the power rests”

How later courts described this case

  • reciting principles that “imprisonment conditioned upon payment of alimony is not imprisonment for debt where the contemnor is found to be able but unwilling to pay”; that “[a] man who refuses to pay alimony or child support when he is able to do so is imprisoned for his refusal to abide by the court’s order, not for debt”; that “[t]he imprisonment must be clearly for the contempt of the process of the court, and be of one who is able and unwilling to obey the order of the court”; and that “[t]he moment it appears that there is inability, it would clearly be the duty of the judge to discharge the party, since it is only the contempt, the disobedience upon which the power rests”
  • noting the difference between civil and criminal contempt
  • “If the contemnor is imprisoned for a specified unconditional period . . . , the purpose is punishment and thus the contempt is criminal.”
  • “Where the primary purpose is to provide a remedy for an injured suitor and to coerce compliance with an order, the contempt is civil.”

Written by the judges who cited it.

The opinion

Jordan, Justice,

dissenting.

I dissent for the reasons stated in Brown v. Brown, 237 Ga. 122 (2) ( 227 SE2d 14 ), a unanimous opinion of this court concurred in by the author of the majority opinion.

In my opinion the ratio decidendi in Brown and Mathews v. Mathews, 222 Ga. 311 ( 149 SE2d 666 ) is sound law and should not be disturbed. Trial courts have generally been able to enforce alimony and child support payments by civil contempt, giving the contemnor "the keys to the jail” by allowing release upon condition of payment. I see no necessity to extend criminal contempt to this area of the law.

I respectfully dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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