Dissenting Opinion
Arterburn, C.J.,I dissent to the majority opinion in this case holding in substance that the Court can not enforce alimony payments by contempt action following a divorce. I think it is time we look the question squarety in the face and recognized the change in our society as well as in the statute. *539Marsh v. Marsh (1904), 162 Ind. 210, 70 N. E. 154, was a case decided under a prior statute which clearly stated that all that could be rendered at the time of a divorce was a judgment in a lump sum in alimony. The Marsh case stated that it was not concerned with “alimony of the common law” under which alimony would be made payable in installments and the obligation of the husband to pay ceased upon the wife’s death or remarriage. That distinction was plainly made in that case as a basis for that decision under the 1873 statute which has now been changed exactly in those particulars under the more recent act. See IC 1971, 31-1-12-17, Burns Ind. Ann. Stat., §3-1218 (Code Edition). This 1949 Act provides for payments of alimony in installments and provides for a discontinuance in case of death or of remarriage of the wife. In other words, it has all the characteristics of support, the same as those with reference to children of the marriage. When a basis for a decision ceases to exist, we should not blindly follow such a decision as I think the majority opinion does in this case. State ex rel. Roberts v. Morgan Circuit Court, (1968) 249 Ind. 649, 232 N. E. 2d 871, is the more enlightened rule. It provides that the alimony payments on installments may be enforced by contempt action.
I fail to follow what I believe is a distinction without a difference in the majority opinion which says that the Roberts case holds only that the Court can enforce by contempt action the payments of installments on a mortgage or a debt by the husband when it is part of the alimony judgment against the husband. I see no difference in compelling, by contempt action, a husband to pay installments on a mortgage on a home given to the wife than in compelling him to pay the future installments on a money judgment, as in the case before us, which was part of the agreed property settlement of the parties.
It is difficult for me to understand why a court, acknowledging it has the power to force a husband to support the children of a marriage, has no power to force a husband to support the former spouse in hardship cases where a divorced wife *540has not been at fault, is in ill health, or is of an age where she can not support herself and is abandoned by her husband who has no visible property which can be levied. If a judgment is rendered, the court should have a right to compel payments, if the husband is capable of making the payments, out of his salary or out of his retirement or pension and to do it by contempt action. I think there is public policy involved in an attempt to protect those involved in a marriage who are not at fault. I can see no historical or rational basis for the distinction attempted to be made in the majority opinion.
Note. — Reported in 307 N. E. 2d 53.