Holtham v. Holtham — 58 N.Y. St. Rep. 130

Majority

p. 130

Minnie Holtham, Resp’t, v. Harry Holtham, App’lt.

(Brooklyn City Court, General Term,

Filed December 26, 1893.)

Headnote

Contempt—Non-payment of alimony.

In a contempt proceeding, for non-payment of alimony, the burden is upon the defendant, where he claims that he cannot earn enough to make ' the payments, to establish his poverty.

Appeal from an order finding defendant guilty of contempt for failing to pay alimony awarded by the court.

Chas. J. Patterson, for app’lt; Baldwin F. Strauss, for resp’t.

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 committed to jail for contempt for non-payment of alimony when he is unable to pay, the burden was on the appellant to establish his povei’ty, and to show that he could not earn money enough to support his wife 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 carefully reading the record.

Order affirmed, with $10 costs and disbursements, to be taxed by the clerk. _