Kempster v. Evans, 81 Wis. 247

Kempster v. Evans

81 Wis. 247 | Wis. | 1892

Gassodat,. J.

It is a general principle of the law of divorce in this country that courts only possess such powers as are conferred by statutes. Hopkins v. Hopkins, 39 Wis. 171; Bacon v. Bacon, 43 Wis. 202; Cook v. Cook, 56 Wis. 203; Clark v. Burke, 65 Wis. 361; Blake v. Blake, 75 Wis. 343. The statute authorizes the court, in the first instance, to adjudge to the wife alimony out of her husband’s “ estate,” or to “ 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 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,” as therein indicated. Sec. 2364, R. S. Of course, where there is a final division in the first instance, there is no good ground for a subsequent modification of the judgment ; and hence the statute declares that, “ when a final division of the property shall have been made under the provisions ” of the section cited, “ no other provisions shall be thereafter made for the wife.” Sec. 2369, R. S. “But where, in the first instance, alimony is adjudged to the wife, whether payable in limited amounts from time to time, ■or in gross, the court is expressly authorized, ‘ from time to *251time, on tbe petition of either of the parties,’ not only to 1 revise and alter such judgment respecting the amount of such alimony or allowance, and the payment thereof,’ but to ‘ make amy judgment, respecting any, of the said matters which such court might hme made in the original action.’ ” Sec. 2369, R. S.; Blake v. Blake, 75 Wis. 343. When the case last cited was here on the first appeal, it was held that “ every provision in a judgment of divorce for the support of the wife, unless it is expressly declared to be a division and partition of the estate of the husband, will be construed as alimony; and the court may afterwards, under changed circumstances, modify such judgment as may be just.” 68 Wis. 303. By the original judgment in that case the husband was ordered and- adjudged to pay to the wife “ the sum of $2,000 upon the execution by her of a release in full of all her dower right that she ever had, now has, or at any time might have, in any of the real estate owned by the defendant, . . . during coverture; ” and yet it was there held that such judgment was not a final division of the estate or property, within the meaning of the sections of the statutes cited. In Campbell v. Campbell, 37 Wis. 219, followed in Blake v. Blake, 75 Wis. 342, “ it was in effect said that all the estate and income of the husband, whenever and however acquired, actually possessed and enjoyed by him at the time of a subsequent judgment for alimony or a subsequent judgment for division of estate, is subject to such subsequent judgment.”

It will be observed, from the statutes quoted and the decisions cited, that alimony or allowance is to be paid out of the estate, income, and resources of the husband, leaving the question of the absolute title to the estate or property, as between him and his wife, untouched; whereas, a final division and distribution of “ 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 husband, between *252the parties,” is therein declared to operate so as to “ divest and transfer the title of any thereof accordingly,” and hence absolutely; and therefore such final division precludes, the court from thereafter making any other provision for the wife in such action. In the case at bar $1,000 annually was adjudged to the wife “as alimony for her personal support and maintenance,” payable as designated, during her natural life, in case she remained unmarried; but provided that, in the event of her marriage, then such alimony should at once terminate. True, it declared that such judgment for alimony should “ be and stand as a final division of property between the plaintiff and the defendant,” but such alimony or allowance was liable to be terminated at any time by such marriage. Besides, it did not undertake to make the final division and distribution of the husband’s estate contemplated by the statutes cited, so as to vest in the wife any absolute and irrevocable right, title, or interest in any portion of such estate, or to vest the title thereof absolutely and irrevocably in the husband, so as to preclude the court from thereafter modifying said judgment and making other provision for the wife.

Such being the law applicable to the alimony so allowed to the plaintiff, the question recurs whether any of the in-stalments thereof, before they actually accrued and became payable, were assignable by her to Mr. Evans in payment or as security for the rent mentioned. It was held, in effect, in Barber v. Barber, 2 Pin. 297, that since a decree for alimony on a divorce in another state is in its nature temporary and liable to be modified or annulled by the court in which it was rendered, it has not the force and effect .of a judgment at law, and hence that an action at law could not be maintained on it. That case was approved in an equity suit between the same-parties in 21 How. 582. In Campbell v. Campbell, 37 Wis. 219, this court went so far as' to hold that “ the court which decrees a divorce cannot, by *253any form of judgment then rendered in reference to alimony, deprive itself of tbe authority given it by statute to revise such judgment.” To the same effect are Coad v. Coad, 41 Wis. 23; Thomas v. Thomas, 41 Wis. 229; Guenther v. Jacobs, 44 Wis. 354. While no case has been cited by counsel directly holding that such allowance or alimony is or is not assignable, yet the principles stated lead to the inevitable conclusion that it is not assignable. Upon examination we find, however, it has recently been so held in In re Robinson, L. R. 27 Ch. Div. 160, where Lindley, L. J., stated, in effect, that the question had never before been distinctly decided. That case was subsequently expressly sanctioned by the Queen’s Bench, in holding that such alimony was not a “ debt or liability ” provable against the husband in bankruptcy, and that, notwithstanding his bankruptcy, he was still liable to continue the payments. Linton v. Linton, L. R. 15 Q. B. Div. 239. To the same effect are Exparte Fryer, L. R. 17 Q. B. Div. 718; Haddon v. Haddon, L. R. 18 Q. B. Div. 778; Re Otway, Ex parte Otway, 58 Law T. (N. S.), 885. Upon the same theory it has been held in Michigan that “ a contract made between a wife and her solicitors in advance of a decree for divorce and alimony, giving the solicitors one half of such alimony, is void, as against public policy.” Jordan v. Westerman, 62 Mich. 170. Hackley v. Muskegon Circuit Judge, 58 Mich. 454, was quite similar, and it was there in effect held that such alimony was not the subject of ap assignment.

We must hold, upon authority as well as principle, that the instalment of alimony deposited with the clerk in March, 1891, did not pass to Evans by the assignment of March, 1890.

By the Court.— The order of the county court is affirmed.