42 N.Y.S. 439 | N.Y. App. Div. | 1896
Lead Opinion
It appears that on the 12th of June, 1891, the appellant brought an action against her husband, Edwin A. Thrall, in the supreme court, the venue being laid in the county of Kings, to obtain a separation from her husband, upon the ground of cruel and inhuman treatment. The defendant in said action duly appeared, and such proceedings were had that on the 31st of July, 1894, an order was made in said action allowing the appellant herein the sum of $50 a week for her support and maintenance for and during each week from the 12th of May, 1894, until the final termination of the action or the further order of the court. An appeal having been taken, this order was modified byproviding that the alimony should commence on the 5th of July, 1894. On or about the 27th of January, 1896, the attorney for the appellant made application to this court, in said action for separation, for an allowance for counsel fee, and such application was granted. On the 18th of March, 1896,
It is difficult to see upon what basis the appellant can found any claim. It is clear that she has no right to compel the defendant in the divorce suit to pay this alimony, the action having been discontinued. All proceedings to' compel the payment of alimony pendente lite must be taken in the action in which the order for alimony was granted; and, there being no action, the order for the payment of alimony necessarily fell. The appellant certainly can enforce no claim against the defendant in that action for alimony alleged to have accrued during its pendency; and, if the appellant has no claim against the defendant in the action for separation, she has none against his estate, because it is only the obligations which have matured, and which are existing at the time of the application, that can be enforced against the estate. If proceedings were taken to enforce the collection of this alimony pendente lite against the defendant, the discontinuance of the action would clearly be an answer to such application. All intermediate, preliminary, and provisional orders necessarily fell when the action ceased to exist. It would have been the same had the complaint been dismissed as to the defendant, in which case it certainly could not be claimed that provisional remedies survive, although judgment had been rendered in favor of the defendant.
WILLIAMS and PATTERSON, JJ., concur.
Dissenting Opinion
(dissenting). The obligations which exist by which a duty devolves upon the husband to support and maintain the wife is not a debt owing by the husband to the wife. There is nothing in the nature of a promise by which the husband agrees to pay to the wife a sum of money which could be the basis of an action against the husband, and nothing that would justify the court in taking hold of the property of the husband, and applying it to the performance of this duty, or preventing him from applying it in other ways, even though it would leave him without property with which to perform this duty. The obligation, however, exists. It springs out of the relation created by the marriage contract necessary for the protection of the family, and for the support and education of the children. This duty of support assumed by the husband on his entering into the marriage relation exists from that time until the marriage tie is dissolved. This condition has been recognized by the court of appeals of this state in Romaine v. Chauncey, 129 N. Y. 570, 29 N. E. 826. We have thus the existence of the duty of support. We then come to the question as to how that duty is to be enforced, for it is obvious that, without some proceeding to enforce it,—without a method by which a husband may be compelled to perform the duty,—the fact that the duty existed would, in most cases, be of no possible advantage to any one. The law therefore provides a method for the enforcement of this duty, but the duty exists independent of the method of enforcement; and the liability of the husband rests upon existence of the duty, and not upon the method by which it may be enforced.
Thus, in Romaine v. Chauncey, 129 N. Y. 566, 29 N. E. 827, it was said:
“During the marriage the husband owes to the wife the duty of support and maintenance, although owing her no debt, in the legal sense of the word. * * * The divorce, with its incidental allowance of alimony, simply continues his duty beyond the decree, and compels him to perform it, but does not change its nature. The divorce and consequent separation are wholly his own fault, and do not relieve him from the continued performance of the marital obligation of support. The form and measure of the duty ¿re, indeed, changed, but its substance remains unchanged. The allowance becomes a debt only in the sense that the general duty, over which the husband had a discretionary control, has been changed into a specific duty, over which, not he, but the court, presides.”
Applying this principle here, this defendant owed his wife this duty of support. He had assumed it when he entered into the marriage state. To enforce that duty, application was made to the court: and the court, for such purpose, ordered this defendant to pay to the wife a sum of money for her support. When that order was entered, whether it was an order directing a payment of tern
“The form and measure of the duty are, indeed, changed, but its substance remains unchanged. The allowance becomes a debt only in the sense that the general duty, over which the husband had a discretionary control, has been changed into a specific duty, over which, not he, but the court, presides. The authorities, therefore, cited to the effect that alimony is not strictly a debt due to the wife, but rather a general duty of support, made specific and measured by the court, seem to me to be ,well founded.”
It seems to follow from my construction of this obligation that, upon each day fixed by the court in the order for the payment by the husband of a sum of money, there became an existing obligation in favor of the wife that the husband was bound to discharge, and that it was the duty of the court to see to it that the husband discharged that obligation. The court had power to enforce that, by committing the husband for contempt if he refused to obey the order.
The court is given specific power, by sequestration proceedings, to take possession of the husband’s property to enforce its order, or, in the event that such proceedings are ineffectual, under the general equity power of the court it has authority to adopt such other remedies as would enforce its orders, and maintain respect for its procedure. An instance of this is found in the case of Wetmore v. Wetmore, 149 N. Y. 528, 44 N. E. 169. It seems to me that under this principle, established in this case, upon the entry of the
I think, therefore, that the order should be reversed, and the motion granted.
O’BRIEN, J., concurs.