A D.C. Superior Court judge recently took the unusual step in a divorce case of jailing a 34-year-old man who had failed to keep up with the $800 monthly mortgage payments on the couple's house, which the man had been ordered to make until the jointly owned property could be sold.

The man, Derek W. Daugherty, was jailed Sept. 28 and spent 28 days in D.C. Jail. He won his release Oct. 26 after his attorney told the judge, Sylvia Bacon, that she did not have the authority under D.C. law to jail someone who is unable to pay a debt -- unless the payments were for child support or alimony, which was not the case in this divorce.

In releasing Daugherty, Bacon did not admit an error, saying only that "continued commitment" was "inappropriate." Such jailings are rare because American courts have generally ended the practice of imprisoning someone who does not have the financial means to pay a debt.

Daugherty had been living in the house since separating from his wife in April 1984. He kept up with the payments for 18 months, eventually exhausting his savings, he said. When he was jailed, he was $19,200 in arrears, although he was still paying $225 a month in child support on time.

Daugherty testified repeatedly during two hearings before Bacon that he could no longer afford to pay all his bills. But Bacon said, in sentencing him to 90 days in jail for civil contempt of court, "He had a duty to make the payments. He simply did not. As the court found, there was no excuse for not making them," according to a transcript of the hearing.

Several lawyers, including two experts on family law, expressed surprise at Bacon's action, saying they could not recall a comparable case in local courts.

They pointed out that judges have broad discretion in contempt-of-court cases, but they agreed that appeals courts have limited this power in enforcing the payment of a debt.

The lawyers commented on Bacon's decision after being contacted by The Washington Post. Bacon declined to discuss the case because it is pending and the house has not been sold.

Daugherty's arrival at the jail immediately attracted the attention of jail officials, who have been under pressure for more than a year to keep the daily population at a court-ordered ceiling of 1,694 inmates. To comply, the Barry administration has granted early release to hundreds of prisoners serving criminal terms.

The property at issue in the case -- a two-story row house at 2607 11th St. NW in the Columbia Heights neighborhood -- was the only substantial asset of Daugherty and Jacqueline Hamlet-Daugherty when they separated in 1984.

They married in 1979 and bought the house a year later for $67,500, making a $1,000 down payment. They obtained a 12 percent mortgage for the remainder, based on their combined gross annual income of $37,000.

From the beginning, the couple's financial position was precarious. In the summer of 1981, Hamlet-Daughterty was laid off from her consulting job; later that year, Daugherty was laid off from his administrative job at a health clinic. A month later, they learned that Hamlet-Daugherty was pregnant.

For the next two years, the college graduates each collected unemployment compensation before finding new jobs. During this period, they occasionally fell behind in their mortgage payments.

Those financial problems exacerbated personal differences between them, they agreed in separate interviews.

When they separated, Hamlet-Daugherty moved to an apartment with the couple's 19-month-old son. Her husband continued to live in the house, keeping up with the mortgage payments until October 1985. By that time, he had exhausted his savings, cashing in two Individual Retirement Accounts, he said. He was $3,700 in arrears when the divorce became final in March 1986.

In the divorce decree, Judge Harriet R. Taylor ordered Daugherty, who had taken a job as a real estate agent, to list the house for sale. Taylor's order had a remedy if Daugherty failed to keep the mortgage current: The amount in arrears would be deducted from Daugherty's share of the proceeds when the house was sold.

Transcripts in the case -- as well as interviews -- show that the couple's relationship had become so contentious that they could not agree how to proceed in selling the house. Hamlet-Daugherty expected to receive equity from the house, insisting it was worth $80,000, the minimum figure for the couple to earn a profit; Daugherty asserted that it would not sell for more than $70,000, citing comparable sales in the neighborhood. An independent appraisal also valued the house at $70,000.

Hamlet-Daugherty also was upset when she learned that Daugherty was planning to act as agent for the sale, which would bring him a 6 percent commission -- about $4,200.

"It looked like to me that he was trying to set me up," she said. "He would be the only one getting something out of it from the sales commission."

Immediately after the divorce, the house became one of the central issues between the two. Hamlet-Daughterty, concerned about her liability, said she would not sign a listing for the house until Daugherty paid off the $3,700 that was in arrears.

Daugherty then stopped all efforts to pay the mortgage and tried to refinance the house through a federal housing program, an action that held off foreclosure for 14 months. In the meantime, the amount in arrears grew to $19,200.

When the refinancing fell through last summer, Hamlet-Daugherty asked the court to find Daugherty in contempt for not paying the mortgage, leading to a hearing before Judge Bacon on Aug. 27.

At this hearing and two subsequent ones, Daugherty's financial stability became a hotly debated question. His attorney at the time, Ronald C. Jessamy, argued that Daugherty had tried to obey Judge Taylor's order but could not pay all his bills on a gross annual income of $23,000 in 1986.

"Mr. Daugherty's income . . . is grossly inadequate in order to undertake his living expenses and child support and {business} expenses," Jessamy told Bacon.

But Bacon rejected Jessamy's assertions and held Daugherty in contempt, giving him 30 days to pay off the $19,200 mortgage debt, to make all repairs on the house and to list the house for sale at $80,000 -- or go to jail.

At the next hearing, on Sept. 28, Daugherty again testified that he was broke. He said his checking account was $30 overdrawn and that his remaining possessions were his clothes and his car.

Bacon was unconvinced. She ordered him to begin serving his jail term immediately.

"She didn't even hear anything I said," Daugherty said in an interview. "If she had listened to the facts, she could not have moved the way she did . . . . She knew I had no assets."

One of the lawyers contacted by the Post, Marna Tucker, said Daugherty's credibility appeared to be the key issue in the case. Tucker, who reviewed the testimony from the three hearings and the court orders in the case, is a domestic relations lawyer and a past president of the D.C. Unified Bar.

"What really offended {Bacon} is that he was living in the house and he wasn't paying for it," Tucker said. Bacon "just basically didn't believe him . . . . The interesting thing was how the {former} wife feels. Even she has to know that him being sent to jail isn't going to enable him to get her child support."

Hamlet-Daugherty said in an interview that she never thought that Daugherty would end up in jail. She said she filed the contempt-of-court motion as a last resort. "I still have a right to make a profit from that house," she said.

After Daugherty was imprisoned, his parents in Silver Spring hired another lawyer, Charlotte Holden. At an Oct. 26 hearing, Jessamy and Holden both appeared before Bacon.

When Holden challenged Bacon's legal authority to jail Daugherty, citing two D.C. previous cases, Bacon replied that she would review Judge Taylor's original divorce decree to determine whether "the {mortgage} payment was in lieu of alimony or support for" Hamlet-Daugherty.

Holden said Taylor's order made no mention of alimony and that Daugherty was on schedule in his child support payments. "I don't see how the mortgage payment could be construed as alimony," Holden said. "Since the wife doesn't live {in the house} and the minor child doesn't live there, I'm perplexed as to how there could be authority for the imprisonment . . . . "

Although Daugherty is out of jail, he is still under Bacon's orders to make repairs to the house. And during his time in jail, he fell farther behind on the mortgage and lost a month's income.

"This one man's story is, indeed, a sad story," Tucker said. But, she pointed out, Bacon was willing to "reverse herself" once Holden made her argument.

"It is true that this guy was sitting in the pokey for 30 days and that is a terrible tragedy to befall anyone. {But Bacon} didn't say, 'No, I won't rehear it. I was right the first time and take me up on it to the Court of Appeals.' "