Kadlowsky v. Kadlowsky

Mr. Justice Waterman delivered the opinion of the Court. Upon the hearing of the rule to show cause why the defendant in the divorce proceeding should hot be attached for contempt in failing to comply with the order of the court as to the payment of alimony, it appeared that five months previous the complainant departed with her two children for Germany, where she has since remained; that the defendant was unable to earn more than eight dollars per week, and was indebted for money borrowed to enable him to commence housekeeping when complainant, after filing her bill for divorce, came back to him; that he has no money save five dollars which he had paid to the clerk of the court, in compliance with its order, nor has he any property save some incumbered real estate which he can not sell unless the complainant will join in a deed thereof, which sale he offers to make and pay the alimony if she will join in a deed. The obligation of a husband to maintain his wife in Europe pending proceedings for divorce, instituted by her, may be conceded, and yet it does not follow that a husband unable so to do can be confined in jail because of a failure to so maintain. To the wife in Europe, the imprisonment of her impecunious husband in jail in Chicago, might be gratifying, but in no other way can such incarceration be useful to her. Although ordered by a court to pay, it is not contempt of court to fail to pay what one is, without fault, unable to pay. Blake v. The People, 80 Ill. 11; Wightman v. Wightman, 45 Ill. 167; Schuele v. Schuele, 57 Ill. App. 189. The order of commitment to jail is reversed.