
    No. 30
    WEISE v. WEISE
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5959.
    Decided Oct. 26, 1925.
    293. CONTEMPT — 1. Where the evidence is clear that a party is unable to comply with an order of the Court, such party is not guilty of contempt.
    2.Where the order of Court is for payment of money, it is error to commit a party to jail for refusal to comply with such order; fine being the only punishment provided.
    Attorneys — Reed, Meals, Orgill & Maschke for Weise; Smith, Olds & Smith for Katherine Weise; all of Cleveland.
   VICKERY, J.

Katherine Weise obtained an order for alimony of $1000 in the Cuyahoga Common Pleas against her former husband, Aurthur Weise. The alimony was ordered to be paid in installments at the rate of $10 per month. It appears that Aurthur failed to pay as ordered and he was cited for contempt and was committed to jail until he would pay the arrears of $250.00. Error was prosecuted on the ground that under the evidence Weise was not guilty of contempt. The Court of Appeals held:

1. The evidence clearly showed that he had no money and was unable to procure work.
2. This constitutes a good excuse for not complying with the court’s order.
3. Contempt of _ court in such cases is evidenced only by facts showing that the defendant refuses to pay when he could pay or has placed himself in a position where he would be unable to pay, and this is not borne out by the evidence in this case.
4. The statute which provides for commitment to jail until a party complies with an order of court does not apply in cases where the order is for payment of money; in such cases fine is the only punishment. The court below therefore committed error.

Judgment reversed and Arthur Weise discharged.  