The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1895-12-12
A RULING ON ALIMONY
JUDGE BARTHOLOMEW HOLDS HE
CAN PUNISH FOR FAILURE TO PAY.
A Point of Law that Has Never Been
Passed on by the Supreme
Court.

In the Superior Court yesterday Judge
Bartholomew settled a point Of law in a
decision which will no doubt have salu-
tary effect In particular class Of cases.
The point was raised "a the divorce suit
OF Charles a. Lackey against Lille M.
Lackey. The defendant was on March 30.
1895, granted divorce on her cross COM
plant. The court made a final decree re-
curing Lackey to pay 50 each week for
the support and education of the children.
Lackey failed to comply with the order
and recently his wife came into court,
showed that there was $40 due from him
and asked that he be required to show
cause why he had violated the order. 1t
was held by Lackey's attorney that the
order OF the court being a final decree,
1t could only be enforced by the court i'm
the ordinary manner of final judgments
for the collection OF money. Judge Bar
tholomew, In looking up the statutes, found
that the particular point involved has
never been passed upon by the Supreme
Court OF Indiana.
This being the case" he said yester-
day, land as there are several similar petit
tions pending in different causes in the
Superior Court, we are left TO our own
Judgment as to our proceedings herein"
After quoting from Section 1885, statutes
of 1891. which the court holds gives him
the power to make the decree as above
specified. he says:
THE first query for our consideration is,
was the portion of the final decree award
ing the custody of the children. and pro-
viding that the plaintiff should pay the
weekly stipend as specified. or was 1t
continuing order that the court had the
right to make and the power TO enforce as
the ordinary administration of justice. IL
the order or the court, as last specined
was personal judgment, Ii could only be
enforced in execution But In Bush VS..
Bush, 81 Ind, 165, the court says that
an order for the custody of children is
and may be changed upon good cause
shown If this is good law, and being by
our own Supreme Court, this court is bound
by Ii, then an order pertaining to the Gus
tody, support and education of the minor
children in the divorce proceeding is not a
final judgment. / think there is clear
final order, which may result not only in a
Judgment, but carrying with IL a duty to
be performed under the terms thereof, or
in execution of the Anal decree of the
INTENT OF THE LAW.
80 here. 1 conclude, the Legislature,
having placed In this court one Of the
most sacred trusts that of caring for the
support and education of minor children.
providing for their custody and education,
is one that can not be lightly considered
by the court, one that, IL its orders in
such cases may be treated with contempt
and utterly disresarded, would result In
absolute impotency Of justice. and the
courts would become mere tools for the
entry of orders and DEGREES for the pro-
lection OF innocent, helpless children with
no power TO enforce the same, the ex-
ecution and carrying out thereof depend
| ing upon the disposition and will of the
person against whom such orders have
been made. many of them, perhaps. un-
| principled and without any feeling or
moral obligation. Suchra state of affairs
and such execution OF the orders and de-
| crees OF the court for such beneficent
| purposes cannot be accepted by this court
| as the intention OF the ,iaw-making power.
| On the other hand this court sees the
intention OF the Legislature 10 ingraft in
the law, giving the court the power TO
| throw around all such children its mantle
| of protection and tshieid of defense. and
| power TO enforce its orders therein, and
not only the power, but the absolute duty
| to see that the orders made therein shall
| he obeyed and carried out for the benefit,
/ support and educator, of the minor chill
| dren in behalf of whom the orders are
made. ~
This being so, IL follows naturally that
an alternative order may issue in this
| case for the plaintiff to show why he
| should not be punished as for a con-
| temptuous disregard of the order of this
| court in the premises