Burrows v. Purple

107 Mass. 428 | Mass. | 1871

Gbay, J.

This court has long been vested, by successive statutes, with authority, upon granting to a wife a decree of divorce, either from bed and board or from the bond of matrimony, to allow her reasonable alimony out of her husband’s estate. Sts. 1785, c. 69, § 5; 1805, c. 57; 1810, c. 119. Rev. Sts. c. 76, § 31. Gen. Sts. c. 107, §§ 43, 44. And the practical construction of these statutes has always been that such alimony might, at the discretion of the court, be ordered to be paid in one gross sum, instead of being made payable at stated periods. Orrok v. Orrok, 1 Mass. 341; Rec. 1805, fol. 114. Livermore v. Boutelle, 11 Gray, 217. Chase v. Chase, 105 Mass. 385. In many other states, also, the word “ alimony” is commonly used as equally applicable to all allowances, whether annual or in gross, made to a wife upon a decree of divorce, under similar statutes. Parsons v. Parsons, 9 N. H. 309. Whittier v. Whittier, 11 Foster, 452. Buckminster v. Buckminster, 38 Verm. 248. Sanford v. Sanford, 5 Day, 353. Lyon v. Lyon, 21 Conn. 185. Piatt v. Piatt, 9 Ohio, 37. Hedrick v. Hedrick, 28 Ind. 291. Wheeler v. Wheeler, 18 Ill. 39. Jeter v. Jeter, 36 Alab. 391. In England, indeed, vhe ecclesiastical courts, whose jurisdiction was limited to divorces from bed and board,' uniformly ordered alimony to be paid annually. But the new court of divorce, which has power to render decrees of divorce from the bond of matrimony, is ex pressly authorized by St. 20 & 21 Viet. c. 85, § 32, if it shall see fit, on any such decree, to “ order that the husband shall to the .satisfaction of the court secure to the wife such gross sum of money, or such annual sum of money, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it shall deem reasonable.” In this Commonwealth this discretionary power has not been limited to cases of divorce from the bond of matrimony, for in the earliest and the latest reported cases upon the subject, alimony in gross was decreed upon a divorce from bed and board for the husband’s cruelty. Orrok v. Orrok, and Chase v. Chase, above cited.

This court is empowered, both during the pendency of the libel and upon a decree of divorce, to make such orders and decrees as it deems expedient for the care, custody and maintenance of the minor children of the parties. Rev. Sts. e. 76, §§ 25, 26. Gen. Sts. c. 107, §§ 32, 33. It is also expressly authorized, from time to time, on the petition of either party, to revise or alter its decrees for alimony or the payment thereof; or, on the petition of a wife who has obtained a decree of divorce, to grant alimony or other provision for her maintenance or for the benefit of the children, although none was made or asked for on the original libel; and, in either case, to make such decree as it might have made in the original suit. Rev. Sts. a. 76, § 36. St. 1853, c. 23. Gen. Sts. e. 107, §§ 47, 48. The court is also now authorized by statute, in every case of libel for divorce, to require the husband to pay alimony pending the suit, and such sum of money as may enable the wife to maintain or defend the libel, although exceeding the taxable costs. Gen. Sts. c. 107, § 22. Baldwin v. Baldwin, 6 Gray, 341. It had already the power, as incidental to its jurisdiction of such cases, to award costs to the wife against the husband, both in suits for divorce, and on petitions for increase of alimony. Wheeler v. Wheeler, 2 Dane Ab. 310. Stevens v. Stevens, 1 Met. 279. Bursler v. Bursler, 5 Pick. 427.

The tendency of legislative and judicial action in this Commonwealth has been to assimilate to one another the forms of execu felons issued by this court in the exercise of the various branches oi its jurisdiction. It has long been the practicó to issue executionc to enforce the payment of alimony awarded upon decrees of divorce, which might be levied like executions in ordinary actions upon personal property or real estate. Orrok v. Orrok, Livermore v. Boutelle, and Chase v. Chase, above cited. French v. French, 4 Mass. 587. Slade v. Slade, 106 Mass. 499. The general statutes expressly provide that “ the court may enforce decrees made for allowance, alimony, or allowance in the nature of alimony, pending libels, or upon or after final decrees of divorce, in the same manner as decrees are enforced in equity; ” and “ may issue process of attachment and of execution, and all other proper and necessary processes,” Gen. Sts. e. 107, §§ 45, 53. And in cases in equity, “the court may issue writs of seisin and execution in common form when such process appears to be an appropriate method of enforcing a decree in equity.” Gen. Sts. c. 113, § 23.

Upon libels for divorce from the bond of matrimony for the crime of the husband, and upon libels for divorce from bed and board, “ in order to secure a suitable support and maintenance to the wife and such children as may be committed to her care and custody, an attachment of the husband’s real and personal estate may be made by the officer serving the libel.” Gen. Sts. c. 1G7, § 50. Such attachment is to be made “ in the same manner as attachments are made upon writs in actions at common law,” and is to be made upon, and the amount thereof expressed in, the summons or order of notice issued upon the libel. § 51. “ All laws relating to attachments of real or personal estate shall apply to attachments herein provided for, so far as the same are not inconsistent with the two preceding sections.” § 52. And by those laws both real estate and personal property attached on mesne process are “ held as security to satisfy such judgment as the plaintiff may recover,” “ for thirty days after the judgment, in order to their being taken on execution.” Gen. Sts. c. 123, §§ 32, 42. The object of permitting an attachment upon a libel for divorce is declared to be “ in order to secure a suitable support and maintenance to the wife and such children as may be committed te her care and custody; ” that object can only be effected by holding the attachment to be security for all sums awarded by the court, either for alimony or other allowance, pending the suit, or upon the final decree, or for the costs and expenses of the libellant ; and these are the only sums which the libellant can recover upon her libel.

In determining the amount of alimony, regard is always had to the value of the husband’s property and income, and the amount of his debts. But when once fixed by decree of the court, it takes precedence, as compared with other debts and liabilities of the husband, not according to the date of the obligation, but from the date of the attachment; and cannot be set aside or modified, except on petition to the court that made it, sitting as a court of divorce. The wife who has obtained a decree for alimony, upon a divorce, either from the bond of matrimony, or from bed and board, although not strictly a creditor, is so far in the nature of a creditor, that she may avoid a conveyance made by the husband, after committing the act which constituted the cause of divorce, though before the filing of the libel, with intent to prevent her from enforcing any decree of alimony which she might obtain. Livermore v. Boutelle, 11 Gray, 217. Chase v. Chase, 105 Mass. 385. Morrison v. Morrison, 49 N. H. 69. And where there is no question of fraud, her claim for alimony under the statutes and the decree is as much entitled to be secured as the claim of any creditor.

It is within the discretion of any court having jurisdiction in causes of divorce and alimony, to include in one decree alimony since the filing of the libel, if not already paid, as well as alimony for the future. Robinson v. Robinson, 2 Lee, 593. De Blaquiere v. De Blaquiere, 3 Hagg. Eccl. 322. Wilson v. Wilson, Ib 329 note. Burr v. Burr, 10 Paige, 20, and 7 Hill, 207. Forrest v. Forrest, 25 N. Y. 501. Barber v. Barber, 21 How. 582. And under our practice, there is no valid objection to awarding upon the final decree a gross sum in full of all arrears of alimony pending the suit, and of all costs and expenses in the suit, as well of future alimony, and of all expenses of maintaining the children the custody of wli om has been awarded to the wife.

The decree of the chief justice, upon the demandant’s libel for divorce, for the payment by the libellee of three thousand dollars in one gross sum, was therefore well warranted by law, and the attachment made upon the libel stood as security for the payment of the whole amount. The order “ that execution issue therefor ” authorized the issue of an execution in common form, and its levy upon any property, real or personal, of the husband, in the manner in which like executions issued in actions at law might bo levied. As the real estate attached was not subject to mortgage, the0only mode in which the execution could be levied upon it was by setting off the land and delivering seisin and possession thereof to the libellant or her attorney. Gen. Sts. c. 103, §§ 3-8, 15,16. Her attachment being prior in date to the tenant’s, her levy of execution within thirty days after the decree gave a better title than his.

The order for the issue of execution was not affected by the subsequent clause of the decree, directing the sum awarded to be paid into the hands of the clerk of the court, and by him deposited in bank until the qualification of the trustee appointed by the decree, and then received and invested by him, and applied to the wife’s support and maintenance. The decree contemplated that the sum awarded should be immediately paid by the husband, gave him forty-eight hours to pay it in, and directed how it should be applied to the benefit of the wife, if so paid. But the sum not having been paid by the husband, there was nothing for the trustee to receive, and it became necessary for the wife to take out execution in accordance with the previous clause of the decree.

It is unnecessary in this case to- consider whether, as contended for the tenant, the appointment of a trustee to hold a sum ordered to be paid by the husband by way of alimony, and not in lieu of personal estate of the wife which had come to him by the marriage, was unwarranted by the Gen.. Sts. c. 107, §§ 40, 41; or whether it was justified by § 46, which authorizes the court to require sufficient security to be given for the payment, according to the terms of the decree, of any alimony or allowance for the wife and children. If this part s>f the decree was irregular oi .inappropriate, it may at any time be amended by the court on the petition of the wife or the husband under § 47. But it cannot, in any view, affect the validity, as against the tenant, of the demandant’s levy.

This writ of entry is not a process to enforce the decree of alimony, which must issue from this court, within the rule established in Allen v. Allen, 100 Mass. 373. That decree has been enforced by the execution already issued, and the setting off and delivery of seisin and possession of the premises to the wife by the officer serving the same. Gen. Sts. o. 103, §§ 15, 16. This is but a writ of entry in the usual form, in which the demandant counts upon the seisin thus acquired by her; and might be brought in the superior court. Gen. Sts. c. 112, § 6 ; e. 114, §§ 3, 4.

The result of the whole case is, that none of the objections taken by the tenant to a recovery in this action can be sustained, and that upon the facts agreed there must be

Judgment for the demandant.