15 N.Y.S. 198 | N.Y. Sup. Ct. | 1891
The, precise question here presented is whether the alimony allowed to a married woman by the final decree granting her a divorce can be reached by creditors whose claims and judgments antedate such decree. The facts are these: In July, 1888, this court rendered judgment in favor of Mrs. Ghauncey, and against her husband, granting her a divorce a vinculo, and awarding her alimony. In 1889 the plaintiff was appointed receiver of Mrs. Chauncey’s property by a New Jersey court upon a judgment recovered against her in that state in the year 1884. This action is brought to reach the alimony payable to Mrs. Ghauncey under the decree of this court, and to require Mr. Ghauncey to pay it over to the plaintiff monthly, until the judgment under which he was appointed is fully satisfied. Mr. and Mrs. Ghauncey demurred, and their demurrers were overruled at special term. We think this action cannot be maintained. The alimony awarded to Mrs. Ghauncey cannot be regarded as an ordinary debt due by one person to another, which, may be reached by judgment creditors in the ordinary way. The nature of alimony must not be overlooked. It is not the wife’s property, nor her separate estate. It is simply' a provision compulsorily made for her support by the guilty husband. The law thus enforces the obligation assumed by the husband at marriage, and the alimony becomes a substitute for the maintenance which is the wife’s due, and which she would receive directly from theo husband, and in his home, but for the dissolution of the marriage contract by reason of his infidelity. This was the doctrine of the common law, and the rule was substantially codified, both in the Revised Statutes and the Codes of Procedure. At common law, “alimony” properly signified nourishment or maintenance, when strictly taken. Godol. Ecc. Law, 508. It was not a portion of the husband’s estate, assigned to the wife, and subject to her control, or to be sold at her pleasure, but a provision for her support, to be continued during their joint lives, or so long as they live separate. Martin, J., in Wallingsford v. Wallingsford, 6 Har. & J. 485. “Alimony,” "says Mr. Bishop, “is not a sum of money, or a specific proportion of the husband’s estate, given absolutely to the wife; but it is a continuous allotment of sums payable at. regular periods, for her support from year to year.” Bish. Mar. & Div. § 591.
The maintenance of the children of the marriage and the support of the wife are thus treated as obligations of a like character, to be enforced, not as creditors enforce the contract obligations of their debtors, but by specially coercive proceedings, looking, not only to the sequestration of the husband’s property, but to compulsory payment from even his current earnings, and to imprisonment in case of disobedience to the judicial mandate. It is quite clear that the provision thus made for the wife’s support is non-assignable. The principle upon which policies of life insurance in favor of the wife were held to be non-assignable (Eadie v. Slimmon, 26 N. Y. 9; Barry v. Society, 59 N. Y. 587; Barry v. Brune, 71 N. Y. 261) applies with greater force to such a provision as that of alimony. And what, it may be asked, could an assignee of alimony take ? Could he take a provision made for the support of the wife, payable from time to time in futuro, and determinable by the death, meantime, of either of the parties? And, if he could take such a provision, will it be pretended that the assignment would' carry with it the same right to enforcement, and the same remedies in that regard, which the law has afforded to the wife? The question carries with it the negative answer. We would not have deemed this question worthy of extended consideration but for some observations contained in the opinion of the court in Stevenson v. Stevenson, 34 Hun, 157. That case is, however, materially distinguishable from the present in this: that the judgment there was recovered subsequently to the decree of divorce. If the learned court had placed its decision solely upon the ground that the creditor had furnished the wife with necessaries upon the faith of the alimony judgment, we would have no difficulty in following it unreservedly; for we think it reasonable that a provision made for the wife’s support should be charged with that very support furnished by a tradesman on the strength of the decree. But further than this we are not prepared to go. To charge the alimony provision with a judgment having no relation whatever to the wife’s support would simply be to nullify the statute, and to permit the wife to starve, while the husband, instead of supporting her, is forced to pay her old debts. Two cases are cited in Stevenson v. Stevenson to sustain the proposition that the separate maintenance of a married woman secured by her husband, they living apart, may be reached by a bill in equity by the creditors of the wife. Kenge v. Delavall, 1 Vern. 326; Lillia v. Airey, 1 Ves. Jr. 277. I have examined both of these cases, and I find that they simply hold that a wife’s separate estate is in equity chargeable with the debts contracted upon the credit of that estate. This is an old and familiar rule, and it undoubtedly affords countenance to the proposition that a tradesman may charge even alimony with debts for necessaries contracted upon the credit of the decree. The learned judge who spoke for the general term in Stevenson v. Stevenson (Follett, J.) seemed to think that, unless it could be shown that alimony was exempted by virtue of some statute, it could be reached by an ordinary creditor, in the ordinary way. Accordingly he dis
