74 W. Va. 563 | W. Va. | 1914
In an action of debt for the recovery of numerous unpaid installments of temporary alimony, ordered to be paid weekly by the defendant herein to his wife, the plaintiff herein, during the pendency of a suit for separation, not divorce, in the
Upon the hearing of the motion for the order requiring the payment of alimony pendente lite and counsel fees, affidavits of the defendant and other witnesses were .read and filed in opposition thereto, but the court, on Nov. 19, 1904, ordered the defendant to pay the plaintiff $20.00 per week, during tbe pendency of the action for the support of herself and her children, none of which was ever paid. At the date of the institution of this action, the allowances so made aggregated $5700.00 and the interest on them for the average time amounted to $934.80, making a total of $6634.80. The suit in which the order was made was not prosecuted to final decree, however. Nothing seems to have been done in it after the entry of said order.
In August 1905, a second suit for absolute divorce and dissolution of the marriage and the custody of their child was instituted by Mrs. Henry and prosecuted to a final decree in her favor, which was entered Oct. 1, 1906.
Recovery was refused by the trial court on account of the character of the order under which the allowances are claimed, it being interlocutory and not final, and of the dissolution of the marriage by the decree in the subsequent suit for divorce, not quite two years after the entry of the order requiring the payment of alimony. Weekly payments, during the pendency of the suit, having been ordered, it is claimed, on the one hand, 'that the suit is still pending and the installments accruing, and, on the other, that the suit has terminated by abandonment or discontinuance or by force of the dissolution of tire marriage, since the suit for separation cannot consistently be deemed to be pending after the termination of the marital relation by the decree of absolute divorce.
■ The defendant seems to have appeared in defense of the motion for alimony, but there is no proof of service upon him of the order allowing it, and he never made any defense to the later suit for divorce. He left New York and got beyond
Such of these circumstances as are adverted to in argument by the defendant in error are relied upon as tending to sustain the view that the order could not be enforced in the courts of New York, or, at least, would not be, and is, therefore, not enforcible here. "Whether it could be or would be enforced there is not conclusive of the case here. If it is subject to complete vacation or modification, so as to destroy the apparent right to the alimony already accrued under it, in whole or in part, no other court is bound to enforce it or could do so consistently with sound legal principles. To enforce it would be to deal with it as a judgment conferring right to the money specified in it. If it is only conditional- or subject to the will of the court by which it was entered, it does not confer such right, wherefore it cannot be treated, in other courts, as a judgment. Judgments and decrees are recognized, by courts other than those in which they are rendered, as debts of record, but not unless they are final and complete to the extent of vesting absolute and unconditional right in the persons in whose favor they are made. “In order that a judgment should be available as a cause of action, it is plainly necessary that it should be complete and definitive in its nature and a valid and subsisting legal obligation. Hence no action can be maintained upon a merely interlocutory judgment or order.” Black on Judgments, see. 959. To sustain an action on it as upon a judgment, a decree in chancery mast likewise direct payment of a fixed, liquidated and absolute debt in money. Black, Judg. See. 962. This principle appli
Unlike the decree in Sistare v. Sistare, relied upon as controlling us in the disposition of this case, and one upon which, this action is founded was .entered upon a motion before the. cause was matured for hearing on its merits. In the Sistare Case,- the unpaid alimony was permanent alimony, given by a final judgment. This is temporai'y accorded by a mere order. The court held that a New York decree for permanent alimony is not susceptible of modification so as to annul the right to money that has become due and payable under it, but only as .to money to become due under it in the future. The power of modification is merely prospective, not retroactive. As to decrees for temporary alimony, the Sistare Case decides nothing.
The statutory provisions under which the order was made, sec. 1769 Code, Civ. Proc., says the court, in which the action for separation or divorce is pending, “may, in its discretion, during the pendency thereof, from time to time, make and modify an order or orders, requiring the husband to pay any
These provisions read together seem to indicate that the order made on motion before maturity of the cause for final hearing may be allowed to stand as and for a part of the final decree or judgment and does so, unless set aside or superseded by some provisions of the final judgment, and so the New York courts seem to hold. “An order for alimony, pende,nib lite, is superseded by the judgment.” Wood v. Wood, 7 Lans. 204. “If an exparte order for alimony is granted and considerable time afterwards a final decree is made in the cause, and before the notice to set aside such order as irregular, a motion to set it aside after final decree will not be heard.” Longfellow v. Longfellow, Clark’s Chy. R. 240. The same case further declares; “A final decree in a cause disposes of the whole cause and of'all previous interlocutory questions.” The New York code classifies judgments as interlocutory and final, sec. 1200. A subsequent section defining interlocutory judgments has been repealed, Sec. 1201. This leaves the distinction between interlocutory and final decrees, recognized in equity practice in force. Chamberlain v. Dempsey, 36 N. Y. 144; Mundorff v. Mundorff, 1 Hem. 41; Trufant v. Merrill, 37 How. 531.
"While the statute does not define interlocutory judgments, the courts construing it, treat them as mere orders, not judgments at all. A decision overruling a demurrer and a decision of the general term affirming it are declared not to be judgments, but mere orders. Ford v. David et al. 13 How. Pr. 193. A decision disposing of the case, except that a reference
Our conclusion, in view of the New York statutory provisions and their interpretation by the courts of that state, is that the order awarding the temporary alimony is wholly discretionary as to .its enforcement with the New York court, and may be, by it, wholly set aside so as to destroy the right to the accrued and unpaid installments, wherefore there is no right' in the courts of this state, to enforce it. Likely the New York court would not, under the circumstance», set it aside,
Agreeably to this conclusion, the judgment complained of will be affirmed.
Affirmed.