In Re Brown

SHINN, P. J.

Habeas corpus was issued on petition of Stuart P. Brown who was in custody under sentence of five days’ imprisonment for failure to comply with a judgment which ordered him to pay a monthly sum for the support of his divorced wife. The question for decision is whether his failure to go to work and earn money to be applied on his obligation under the judgment warranted his conviction of contempt of the authority of the court.

The issue was framed by the affidavit of his former wife upon which the citation was issued. The affidavit was in the form of a standard questionnaire used in such matters and its averments consisted of answers to specific questions.

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The substance of the affidavit was that by judgment of divorce given on March 28, 1952, pursuant to a property settlement agreement, petitioner was ordered to pay his former wife $350 per month; as of March 28, 1955, he was delinquent in the sum of $800, as the balance of sums accrued during January, February and March. In answer to the question “Has the adverse party sufficient income to comply with the above mentioned order. (State nature and amount of such income. Do not base answers on information and belief.) ’ ’, the affidavit stated as follows: “Defendant is a very well educated, healthy man, 45 years of age. Until Oct. 15, 1954, defendant was employed earning in excess of $18,000.00 per year. Defendant claims to have been unemployed since that date. Defendant is remarried and claims that he is supported by his present wife who has substantial property and income, which he claims is her separate property. Plaintiff alleges that defendant will not sincerely attempt to become employed for the reason that he would be required to pay such income to plaintiff under the existing court order.’’ There were no other statements relevant to the question of defendant’s ability to comply with the order.

Considered as the best answers that could be given by the affiant and in the absence of any other pertinent statements of facts except the fact that petitioner had had the ability to comply with the order from the time the judgment was rendered until January, 1955, the affidavit must be construed as asserting that petitioner was dependent upon his earnings for ability to make the payments. Although the affiant stated her belief that petitioner would not sincerely attempt to become employed because it would enable him to meet his payments, this clearly was not sufficient to charge him with wilfully refusing to work for the express purpose of evading his obligation of support. It was not alleged that he voluntarily gave np his employment or that remunerative employment was available to Mm and that he had refused and would continue to refuse to accept it. This is not to intimate that the affidavit would have shown a contempt had such allegations been made. That question is not before us.