14 Haw. 152 | Haw. | 1902
Lead Opinion
OPINION OF THE COURT BY
Tbe Circuit Court upon granting the divorce in this case awarded to the wife as or in li'eu of permanent alimony one-half of the husband’s real estate in this Territory, but tbis Court on ■exceptions (13 Iiaw. 654) held tbat under tbe statute tbe Court •could not order a division of tbe husband’s real estate. The Circuit Court then ordered tbe husband to pay to tbe wife within fifteen days $10,000 as alimony in gross. The libellee now firings the case here again on exceptions.
The main contention is that the statute does not permit alimony in gross, and the first question is whether that point is settled by tbe former decision referred to above. In tbat decision tbe majority of the Court, then differently constituted, held (1) tbat alimony could be granted in gross, but (2) that the bus-
But perhaps as important a .question as that of whether an opinion is a decision or a dictum is that of the weight to be given to it if it is a dictum. To hold that an opinion is a dictum is not equivalent to holding either that the court in the particular case acted unwisely in giving it or that no respect should be shown it. There are all shades. Even an actual decision may be reversed if clearly erroneous. An opinion expressed after full argument and due consideration upon a doubtful point closely connected with, or apparently though not necessarily involved in a case, should perhaps, on principle, be given greater weight than an actual decision rendered upon little argument and consideration. It should at least be given greater weight than an opinion expressed merely by the way. See cases supra. There is no doubt a greater tendency now than there was formerly to pass upon questions presented but not necessary to be decided, and doubtless
The question was argued by counsel, including the one who now contends that the opinion upon it was mere obiter, was passed upon by the court with as great care and deliberation as if it had been necessary to decide it, was closely connected with the question upon which the case was decided, and the opinion was expressed with a view to settling a question that would in all probability have to be decided before the litigation was ended. Under such circumstances the opinion should be given considerable weight, and should not be disturbed if, upon consideration of the merits, the question is found to be one upon which there might well be a difference of opinion and the opinion is found to be not contrary to good policy. Such we find is the case.
As to the question of policy, the fact that alimony in gross is now expressly permitted by statute in many of the states and even in England where the contrary view originated and was adhered to in the courts, some statutes even going so- far as to permit a division of the estate in specie-, the fact that doubtful statutes elsewhere have in a number of cases been sio construed; and the fact that this view has often been favorably commented upon and seldom condemned, all go to indicate that there is nothing contrary to public policy to permit alimony in gross. This means, not that an award in gross should usually be made, hut merely that there is no sound objection to the existence of the power to award alimony in gross or to the exercise of such power in proper cases. Some courts which hold that such power exists hold also that it should not be exercised except under special circumstances. As a rule the alimony should bei payable periodically. The court can then control its amount more effectually and change it from time to time according as the means and needs of the parties change. An award in gross may be made appropriately when the husband is likely to vexatiously delay or
• As to the law, it will not be necessary to repeat the statute or review at length the authorities cited .in the former opinion referred to.. Under statutes very similar to ours, it has been held, as pointed out in the former opinion, in California, Illinois and South Dakota, that alimony may be awarded in gross. The Massachusetts cases also are relied on.as holding the Same way. But it is said that they .are distinguishable by reason of the statute being differently worded. That statute contains the.words: . “such part of the .personal estate of the husband and such alimony out of his estate,” while onr statute contains no such words as those we have put in italics. But, as we understand it, alimony is not granted in gross in Massachusetts under the words italicised, for those words permit a division of the estate m specie, but the authority relied on there is the other portion of the statute which reads, “alimony out of his estate,” which permits an award merely of money, whether’ payable out of income or estate, and here lies an important distinction. Power to. award alimony in gross does not, any more than power to award it as an annuity, permit a division of even personal estate in specie. Alimony, whether in gross or periodical, is payable out of income or estate, real or personal, but is not.a part of the.estate. This distinction is brought out more clearly in the Wisconsin cases under a similar statute. Bacon v. Bacon, 43 Wis. 197; Campbell v. Campbell, 37 Id. 206.
•. .Several words and pbraseS in ,the statute are relied on as tending to show an intention on the part of the leg¡islature that alimonl.y should be periodical only. For instance, the allowance is for the wife’s “support.”. The husband may be required to> give ■“reasonable security.” Upon his neglect to give such security or. make payment, the court may “sequester his personal estate and the rents and profits of his real estate,” and cause the same to be applied to.the allowance as to the court shall s’eeam just “from time to time.” Civ. L., Secs. 1943, 1947. Reliance is placed also upon the general principle that the statute should be
No doubt the general impression here, as shown by the prac-' tice, has been that alimony in gross, if not absolutely unauthor
On the whole we do not think sufficient cause has been shown for reversing the opinion expressed at the former hearing.
It is contended further that no alimony could be granted for want of a sufficient prayer in the complaint. The prayer of the amended complaint, so far as it bears on this question, was, “That the court order an equitable division of said property between plaintiff and defendant; that she have alimony during such time and in such amount as the court may decree and that defendant be ordered to pay the costs of this action and reasonable counsel fees; and that plaintiff have such other and further relief as to your honor may seem just and proper in the premises.” The granting of an allowance is, under the statute, ancillary to the granting of the divorce, and while the prayer could easily be improved so far as permanent allowance or alimony in gross is com cemed, it was sufficient.
A further contention is that there was not sufficient evidence to support a decree for alimony, in that it was not shown how much was necessary for the wife’s “support” per month or year, &c:, or what her expectation of life was. In the nature of things it could not, nor does the statute require it to be shown exactly how much she would need, nor in awarding an allowance in gross was it necessary to estimate' the amount by tables of annuities and mortality. The statute provides as to the amount, that it shall be such “as the court shall deem just and reasonable, having regard to the ability of the husband, the character and situation of the parties, and all other circumstances of the case.” Oiv. L., Sec: 1943. Courts elsewhere do not seem as a rule to make use of such tables or to require exact proof of the wife’s needs in estimating alimony in gross.
Lastly it is urged that the amount is excessive. The amount is largely within the discretion of the trial court, but that discretion can be reviewed as in other cases of discretion, when it is
We are also of the opinion that the time allowed for payment is too short. The whole $10,000 was ordered paid within fifteen days. The property was not readily salable — by reason of its character and location. Its value was very uncertain. The title to some of it seems to be uncertain. It is doubtful whether $10,000 could be obtained by mortgage, and, if thei property had to be sold in order to realize the amount required, it would probably be at a great sacrifice, with the result that while the wife would get only what was ordered the husband would lose a great deal more. In Farley v. Farley, 30 Ia. 353, the property was valued at $4,000 and the allowance was $1,300, which was ordered paid, $500 in sixty days, $400 in six months and $400 in nine months. On' appeal the court held that the amount was not excessive but that the time for payment was too- short. The time was changed so that $300 was payable in ninety days, $500 in nine months, and $500 in eighteen months. The time need not be so long now that the amount is reduced to $5,000 as it should be if it were to remain at $10,000, but it seems to us that at least six months should be given in which to pay the greater part of it, and the defendant may be required, to pay interest on it meanwhile.
The exception is sustained, the order excépted to set aside and the case remanded to the Circuit Court for further proceedings consistent with the foregoing views.
Dissenting Opinion
For the reasons stated in the opinion heretofore filed by me in this case (13 Haw. 663), I am still of the opinion that the views expressed by the majority at the former hearing on the question of whether or not our statute permits an awai’d of a sum of money in gross as alimony are obiter dicta as distinguished from actual decision. The foregoing opinion of the majority contains much in support of this view. What the precise distinction, if any, is between judicial dictum and obiter dictum or what shades or degrees of dicta or decisions there are, I deem it immaterial to consider, for I concede to the dicta in this case all the weight and respect to which they are entitled as such. They have not the force, however, of an actual decision. Conceding to the dicta the weight and respect due them, I am unable to reach the conclusion expressed by the majority at the former hearing on the main question now before the Court and therefore respectfully dissent. Nor do the circumstances of the case seem to me to be such as to render obligatory the adoption of the-former opinion of the majority merely because the statute under consideration may perhaps be regarded as one upon the construction of which there may be a difference of opinion.
The authorities are uniform to the effe.ct that in the absence of statutory authorization and, perhaps, of the consent of the parties, the divorce court is without jurisdiction to decree the payment to the wife of a sum in gross. Alimony, within the strict meaning of that term, that is, an allowance to the wife, for her support, to be paid by the husband at stated intervals, is all that can under those circumstances be granted. No consent of the parties has been shown in this ease. The power, then, to decree the payment of a sum in gross, if it exists a.t all, exists, as held by the majority of the Court, by virtue of the provisions of our statute. Section 1943 of the Civil Laws reads: “Upon granting a divorce for the adultery or other offense amounting thereto, of the husband, the Court- may make such further decree or order against the defendant, compelling him to provide for the maintenance of the children of the marriage, and to pro
In many of the States statutes have been enacted conferring in express terms the power now under consideration. Decisions of
The statutes in Illinois, California and South Dakota are similar to ours and the decisions cited by the majority from the courts of those states are undoubtedly authorities in support of the conclusion reached by it. The reasoning employed in those decisions is, however, unsatisfactory to me and, with respect, I decline to follow them.
While there may have been others, but two cases in this jurisdiction have been called to my attention in which the trial court made an award in gross, and in each of those cases exceptions were noted and taken to the Supreme Court contesting the power to make the award. The cases, however, were disposed of on other issues'.
To say that as a matter of public policy there is no sound objection to the existence of the power to award alimony in gross
In my opinion, the case should be remanded to the Circuit Court with instructions to decree a periodical allowance for the wife for her support, payable until further order of the Court.
Concurrence Opinion
OPINION OF
Without assenting to ail of the arguments advanced in the foregoing opinion I concur in the conclusion and judgment announced.