Majority
p. 762(6 Misc. Rep. 266.) HOLTHAM v. HOLTHAM. (City Court of Brooklyn, General Term. December 26, 1893.) Argued before CLEMENT, C. J., and VAN WYCK, J.
Headnote
Payment of Alimony—Enforcement by Contempt Proceedings.In a proceeding to enforce the payment of alimony as a contempt of court, where defendant claims that he cannot earn enough to make the payments, the burden is on him to establish his poverty.
Appeal from special term.
Action by Minnie Holtham against Harry Holtham for divorce. From an order finding defendant guilty of contempt for failing to-pay alimony awarded by the court, defendant appeals.
Affirmed.
Chas. J. Patterson, for appellant.
Baldwin F. Strauss, for respondent.
This is an appeal from an order finding the-defendant guilty of contempt in failing to pay alimony. The appellant admitted that he owed the amount, $80, but .claimed that he was out of work, and had no means. Assuming, as claimed by counsel for the appellant, that a husband should not be committed1 to jail for contempt for nonpayment of alimony when he is unable to pay, the burden was on the appellant to establish his poverty, and to show that he could not earn money enough to support his wife
p. 763
and two. children, of the ages of eight and ten years. His wife has been compelled to earn her living by washing and scrubbing, and the husband has paid her nothing since June 23, 1893. The judge at special term was not satisfied by the affidavits of the defendant and his mother that he could not pay the amount due, and his conclusion seems to us the correct one, after caréfully reading the record. Order affirmed, with $10 costs and disbursements, to be taxed by the clerk.