Slade v. Slade, 106 Mass. 499

Slade v. Slade

106 Mass. 499 | Mass. | 1871

Chapman, C. J.

By the Rev. Sts. c. 76, regulating divorces, the court was authorized to hear cases according to the course of proceedings in ecclesiastical courts and in courts of chancery, and. might issue process of attachment and execution, and other proper process necessary for the dispatch and final determination of such cases. The case of Morton v. Morton, 4 Cush. 518, was decided under this statute, and the court recommended a scire facias as the proper remedy in case of nonpayment of instahnents, and refused, in that case, to issue a process of attachment for contempt. They did not, however, decide that scire facias was the exclusive remedy. Indeed, they could not do so in view of the provisions of the Revised Statutes.

In Newcomb v. Newcomb, 12 Gray, 28, a motion, was filed for the issuing of an execution without notice to the libellee. The court refused to grant it; but an affidavit being filed that alimony had not been paid or discharged, notice was ordered to the libel-lee to show cause why execution should not issue. Such an order implied that the court did not regard scire facias as an exclusive remedy.

In Allen v. Allen, 100 Mass. 373, in which it is held that an action at common law will not lie in the superior court for arrears of alimony, one of the reasons assigned for the decision is, that by the Gen. Sts. c. 107, § 47, the court may from time to time, on the petition of either party, revise and alter its decree respecting the amount of alimony and the payment thereof, and may make any decree respecting such matters, which it might have made in the original suit. By § 45, the court may enforce decrees made for allowance, alimony, or allowance in the nature of alimony, pending libels, or upon or after final decrees of divorce, in the same manner as decrees are enforced in equity. But the court is authorized to issue an execution in common form, to enforce a decree in equity, when such process appears to be appropriate. Gen. Sts. c. 113, § 23. And such process is usually ordered to be issued, when a decree is for the payment of money.

In ordinary cases, alimony is the mere payment of money, and an execution for the amount to be paid is frequently ordered a* tile time of the decree. There may be cases where an attach *501ment for contempt would be ordered; but it is not necessary to enumerate them. There should appear to be a contemptuous disobedience. It is clear that the petitioner is not limited to scire facias; nor has the petitioner made out a case for which an attachment should be issued. But under the Gen. Sts. the libellant may at any time obtain by petition, properly supported, an order of notice, returnable at such time as the court shall direct, and thereupon the court may order the issue of an execution, or such other process as may be appropriate to enforce payment. Other process would be appropriate to obtain security under § 46, which authorizes the court to require security, and in some other cases. A petition is usually preferable to a scire facias, because the proceeding is more speedy and flexible; but no order should be made without hearing or notice.

This case is to stand for further hearing, and such decree to be made as may be appropriate to the circumstances of the case, for the payment of alimony, the giving of security, or the issuing of execution. Ordered accordingly.