30 Haw. 637 | Haw. | 1928
The complaint in this case is composed of two counts, to each of which the defendant demurred on the general ground that neither count states facts sufficient to entitle the plaintiff to the relief prayed for. The demurrer was sustained and the complaint dismissed. The plaintiff brings the case here on exceptions.
The first count is predicated on a decree rendered by a court of competent jurisdiction in the State of Wisconsin granting to the plaintiff in the action (who is also *638 the plaintiff in the instant suit) an absolute divorce from the defendant, who was her husband. The decree also provides for the distribution of certain personal property, the payment of certain obligations to creditors and the award of the custody of the minor child to the plaintiff. The decree also orders the defendant to pay to the plaintiff during his life and until the remarriage or prior death of the plaintiff the sum of $150 per month for the support and maintenance of herself and child.
It is alleged in the complaint now before us that defendant has defaulted in the payment of these monthly installments in the aggregate sum of $3,750, for the recovery of which the instant suit is brought.
So far as the first count of the complaint is concerned the sole question presented is whether the decree rendered by the Wisconsin court is final as to the installments of alimony that have not been paid. It is conceded that unless it is final as to these installments the plaintiff has no case under this count. On the other hand, if it is final the first count states a case upon which the plaintiff is entitled to have a trial. The plaintiff pleads two Wisconsin statutes which bear directly on the subject and our attention is directed to several decisions of the supreme court of Wisconsin in which these statutes are discussed and construed. The statutes themselves are as follows:
"Upon every divorce from the bond of matrimony for any cause excepting that of adultery committed by the wife, and also upon every divorce from bed and board, the court may further adjudge to the wife such alimony out of the estate of the husband, for her support and maintenance, and such allowance for the support, maintenance and education of the minor children committed to her care and custody as it shall deem just and reasonable, or the court may finally divide and distribute the estate, both real and personal, of the husband and so much of the estate of the wife as shall have been derived from the *639 husband, between the parties and divest and transfer the title of any thereof accordingly, having always due regard to the legal and equitable rights of each party, the ability of the husband, the special estate of the wife, the character and situation of the parties and all the circumstances of the case; but no such final division shall impair the power of the court in respect to revision of allowances for minor children under the next preceding section. * * *" Rev. Stat. Wis. 1919, V. 2, Sec. 2364.
"After a judgment providing for alimony or other allowance for the wife and children, or either of them, or for the appointment of trustees as aforesaid the court may, from time to time, on the petition of either of the parties, revise and alter such judgment respecting the amount of such alimony or allowance and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any judgment respecting any of the said matters which such court might have made in the original action. But when a final division of the property shall have been made under the provisions of section 2364 no other provisions shall be thereafter made for the wife." Ib., Sec. 2369.
It is evident from section 2364 that the court granting a divorce may adjudge alimony to the wife out of the estate of the husband or may finally divide and distribute between the parties the estate of the husband and so much of the estate of the wife as shall have been derived from the husband and transfer the title to such property in accordance with the provisions of the statute. There seems to be no doubt as to the finality of such a decree — certainly in so far as it divides and distributes the property.
It is contended by the plaintiff herein that the decree of divorce upon which the first count is predicated divided and distributed certain personal property between herself and the defendant and furthermore provided that "the foregoing division shall be and is hereby declared to be *640 a full and final division and declaration of the property rights of the above named parties," and that therefore the entire decree is final under section 2364 and entitles her to maintain her action on it. We think it cannot be denied that the portion of the decree declaring what property the plaintiff should have and what property the defendant should have is final. It vested in the respective parties an interest in such property which we imagine the Wisconsin court could not thereafter disturb. We think it does not follow from this, however, that the portion of the decree relating to alimony is final and therefore outside the jurisdiction of the Wisconsin court to alter or amend. The finality of the decree relating to alimony is no more fixed by the finality of the decree relating to a division of the property than it is fixed by the finality of the decree dissolving the bonds of matrimony. Whether the order to pay alimony is final depends on the provisions of section 2369 of the Wisconsin statutes. This section provides that "after a judgment providing for alimony * * * the court may, from time to time, on the petition of either of the parties, revise and alter such judgment respecting the amount of such alimony * * * and the payment thereof, * * * and may make any judgment * * * which such court might have made in the original action." This section confers upon the courts of Wisconsin a very broad power over decrees of this nature. It does not limit their power to increasing or decreasing installments of alimony not yet due but is comprehensive enough to include the power to deal with the payment of installments that are past due as well. The courts are given power upon the petition of either party to make any judgment they might have made in the first instance. It cannot be doubted, of course, that the Wisconsin court could in its original decree have ordered the defendant to pay a sum less than $150 per month to the plaintiff for *641 her support and maintenance. This being true it is obvious from section 2369 that it would now have jurisdiction, upon the petition of the defendant, to reduce the amount that is past due, and for the recovery of which the present action is brought, to such sum as in its judgment the defendant should be required to pay. The decree thus lacks the quality of finality that is indispensable to the maintenance of an action upon it in a foreign jurisdiction.
The views we have thus far expressed are supported by several decisions rendered by the supreme court of Wisconsin. Inasmuch as the statutes that were under consideration in those cases are the same statutes that are now before us we would not feel at liberty to dissent from the conclusions reached by the Wisconsin court even if we had not agreed with them. In Lally v. Lally,
It is contended by the plaintiff that however conclusive the foregoing decisions may be as to the jurisdiction of the court granting the divorce and ordering the payment of alimony to modify its decree relating to installments of alimony not yet due, they are not conclusive as to the power of the court to relieve against the payment of installments that are in arrears and that as to such installments the Wisconsin court has in later cases reached *645 a contrary conclusion. Two Wisconsin cases are cited in support of this contention: Haritos v. Haritos, 202 N.W. 181 and Inre Wakefield's Estate, 196 N.W. 541.
In the Haritos case the plaintiff filed a petition in the court which had granted the divorce and which had ordered the payment of alimony to her praying that the defendant be required to obey the court's order in that regard. The defendant set up by way of defense that the plaintiff, for a valuable consideration, had agreed to relieve him of his obligation and that therefore the court was without jurisdiction in the matter. This agreement, however, had been procured by unfair and coercive measures and the circuit court held that its jurisdiction was unaffected by the agreement. Upon appeal this judgment was affirmed. The court of appeals said (p. 182): "Our statutes specifically provide that after judgment allowing alimony or other provisions for wife and children, or either of them, the court, from time to time, upon the petition of either party, may revise and alter such judgment respecting the amount of alimony or allowance and the payment thereof. Section 2369, Stats. It necessarily follows that the court has full control of the subject of alimony after a decree awarding alimony, and that the parties are not at liberty to contract away the right of the court in the exercise of its statutory prerogative to control and regulate the payment of alimony after judgment of divorce. As the payments became due, the plaintiff could dispose of them as she should choose, but, as to the future, the court had jurisdiction to modify the judgment as the interest of justice might demand."
In view of the clear and cogent reasoning in the other Wisconsin cases which we have cited and from which we have quoted, which reasoning is broad enough to include arrearages of alimony as well as future installments, and *646 in view of the comprehensive provisions of section 2369 we cannot think it was the intention of the court in the last sentence quoted from the Haritos case to lay down a rule that would preclude the court which had rendered a decree of divorce from subsequently abating, in whole or in part, for good and sufficient cause, installments of alimony that were past due. If such had been its intention it certainly would have made some reference to other Wisconsin cases where a contrary doctrine seems to be announced. It would require a clearer and more emphatic statement than that contained in the Haritos case to induce us to believe that the court intended to abandon a construction of section 2369 that had so long been recognized in that State.
The Wakefield case is even less convincing than the Haritos
case. Mrs. Wakefield obtained a divorce in California from her husband, Thomas Wakefield. The court granting the divorce in its decree ordered the husband to pay to his wife as alimony the sum of $150 per month. Wakefield defaulted in these payments in the aggregate sum of $1200. His father, George M. Wakefield, who died testate in Wisconsin, by his will left certain legacies to his son Thomas Wakefield. Mrs. Wakfield, prior to the payment of these legacies and while the matter was still in suspense in the Wisconsin courts, filed a petition praying that she be allowed to intervene as a creditor of Thomas Wakefield and that the amount due her as alimony be paid to her out of the legacies to which she was entitled. The point was made by Wakefield's counsel that Mrs. Wakefield was not a creditor and therefore had no right to intervene. The court in disposing of this question said (p. 544): "The next contention of respondent is that the petitioner is not a creditor, and that Thomas Wakefield is not a debtor within the meaning of the statute. To sustain this contention counsel cite *647
cases holding that judgments for alimony are not assignable and are not discharged by adjudications of bankruptcy. These cases do not depend on the theory that when a judgment for alimony is secured by a wife she is not a creditor, but on the principle that such judgments are for her personal maintenance, that she should not be allowed to deprive herself of their benefits by anticipation, and that they should not be alienable. The duty of the husband to make provision for his wife is not discharged by divorce or bankruptcy. It is a familiar rule that such judgments, unlike others, are revocable for causes intervening after the decree. The ability or inability of the husband to make payments, the diminishing or increasing needs of the wife, and her remarriage, are all circumstances which may be important considerations in determining whether a provision for alimony should be continued or modified. But the fact that the judgment may be revised by the court in no way indicates that, so long as it stands unchanged, it is of less binding effect than other judgments. When a divorced wife has her judgment for alimony, she is a creditor and entitled to the remedies of other judgment creditors. This is the rule sanctioned by the great weight of authority. * * * Since the judgment was entered in the court of another state having general jurisdiction, it should be given the same faith and credit as in the state where rendered." The court cites in support of its opinion Kunze v. Kunze,
It is evident that in the Wakefield case (the court having in mind the Kunze case) the conclusion that Mrs. Wakefield was a creditor of James Wakefield, her *649 former husband, was based on the assumption that in California the decree upon which her status as a creditor depended was a final decree and therefore beyond the jurisdiction of the California courts to modify or otherwise amend. Our attention has not been directed to any California case construing the statutes of that State relative to judgments for alimony. Plaintiff's counsel, however, in their brief, cite McGregor v. McGregor, 122 P. 390, a Colorado case, which construes the California statutes. In that case the plaintiff brought suit in Colorado, on a judgment rendered in California, for past-due installments of alimony. The question presented was whether the California judgment was final and therefore enforceable in Colorado. The court in deciding that it was final said (p. 391): "The next question, then, to determine, is whether the California court by the law of that state possesses the power to annul or modify the past-due installments which accrued by virtue of the decree which is made the basis of plaintiff's cause of action. The Civil Code of California, § 139, is as follows: `Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support during her life, or for a shorter period, as the court may deem just, having regard to the circumstances of the parties respectively, and the court may, from time to time, modify its orders in these respects.' Section 138 of the Code also provides: `In an action for divorce the court may, before or after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.' There is nothing in either of these sections which expressly or impliedly confers power to *650 revoke or modify an installment for alimony, or for the education and maintenance of a minor child, issue of the marriage dissolved, which had accrued prior to the making of an application to vary or modify it, and in the language of the opinion in Sistare v. Sistare, supra, 218 U.S. page 22, 30 Sup. Ct. 688, 54 L. Ed. 905, 28 L.R.A. (N.S.) 1068, 20 Ann. Cas. 1061: `Every reasonable implication must be resorted to against the existence of such power in the absence of clear language manifesting an intention to confer it.' So far as advised by any decisions of the supreme court of California on the subject, the power of the courts of that state is limited to modifications of future installments for alimony, or the support of minor children, and does not extend to those past due."
Ashby v. Ashby,
It is our opinion, based on the Wisconsin statutes to which we have referred and on the decisions of the Wisconsin court construing those statutes, that the demurrer so far as it relates to the first count of the complaint was properly sustained.
It is likewise our opinion that so far as it relates to the second count of the complaint the demurrer was properly sustained. This count is based on an agreement entered into between the parties prior to the rendition of the decree of divorce.
The terms of the agreement, which was authorized by the laws of Wisconsin, were embodied in the decree of divorce upon which the first count of the complaint is based. Its only function was to inform the court, in the event a divorce was granted, what the parties had agreed upon concerning a division of property, the custody of their child and the amount of alimony and counsel fees that the defendant should be required to pay. When the divorce was granted (and the terms of the agreement embodied in the decree as they were) the agreement itself became functusofficio. It had no force independently of the decree and was subject to the same modification as the decree itself. It would be inconsistent to say that no action could be maintained in *652 this jurisdiction on the decree but could be maintained on the agreement which was the basis of the decree.
The exceptions are overruled.