Smith v. Smith
7 F. Supp. 490
W.D.N.Y.
1934
Check Treatment
KNIGHT, District Judge.

Thе plaintiff and defendant are husband and ‍‌‌‌​​​‌​​​‌‌‌‌​​‌‌​‌‌‌​​​‌‌‌​​‌‌​‌​‌‌‌​‌​‌‌​‌​‌​‍wife. An action was brought in thе Su *491 preme Court, Erie County, New York, by tbe plaintiff against the defendаnt, to procure a judgment of separation and' for an award of alimony for the support and maintenance of the plaintiff. ‍‌‌‌​​​‌​​​‌‌‌‌​​‌‌​‌‌‌​​​‌‌‌​​‌‌​‌​‌‌‌​‌​‌‌​‌​‌​‍Upon the trial of the issues the defendant set up a counterclaim for divorce. ■On the trial of the issues plaintiff obtаined judgment awarding permanent alimony and costs of the action.

An execution for the recovery of the costs was issued and returned unsatisfied, and a garnishee execution subsequently issued. The defendant thereafter filed a petition in bankruptcy аnd was adjudicated a bankrupt. This motion is made to set aside thе garnishee execution upon the ground that judgment for costs оf the action is a dischargeable debt. Chapter 3, § 17, of the ‍‌‌‌​​​‌​​​‌‌‌‌​​‌‌​‌‌‌​​​‌‌‌​​‌‌​‌​‌‌‌​‌​‌‌​‌​‌​‍Bаnkruptcy A.et (11 USCA § 35) provides: “A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as * * * are * * * f0r alimony due or to beeome due, or for maintenаnce or support of wife or child.” It is a contention of thе bankrupt that the costs included in a judgment awarding alimony do not come within the exception mentioned.

“Alimony does not arisе from any business transaction, but from the relation of marriage. It is nоt founded on contract, express or implied, but on the naturаl and legal duty of the husband to support the wife. * * * The bankruptcy law should receive such an interpretation ‍‌‌‌​​​‌​​​‌‌‌‌​​‌‌​‌‌‌​​​‌‌‌​​‌‌​‌​‌‌‌​‌​‌‌​‌​‌​‍as will effectuate its beneficent purposes, and not make it an instrument to deprive dependent wife and children of the support and mаintenance due them from the husband and father, which it has ever bеen the purpose of the law to enforce.” Wetmorе v. Markoe, 196 U. S. 68, 25 S. Ct. 172, 174, 49 L. Ed. 390, 2 Ann. Cas. 265. The language quoted is specially significant here. The right to alimony is not founded on contract. The costs included in the judgment were necessary in order that the alimony might be dеcreed. A judgment for costs is a provable, ‍‌‌‌​​​‌​​​‌‌‌‌​​‌‌​‌‌‌​​​‌‌‌​​‌‌​‌​‌‌‌​‌​‌‌​‌​‌​‍debt. Chapter 1, § 1, Bаnkruptcy Act (11 USCA § 1). But the court will look behind the judgment to ascertain the nature of the action out of which the judgment arose. Lovеland on Bankruptcy, § 296; Peters v. United States (C. C. A.) 177 F. 885. While the costs and the award of alimony are necessarily distinct and separatе amounts, the result is no different than that in an action arising out of а tort which is not dischargeable and in which the costs are includеd as a part of the judgment. In no such case which has been called to my attention has there been an attempt to distinguish liаbility for costs from liability for the tort itself. The costs are accessory to the judgment and follow the nature of the liability on which thе judgment is based. Therefore, since alimony comes within the exсeption made in subdivision a (2), § 17, Bankruptcy Act (11 USCA § 35), these costs come ■within the same exceptions.

No ease with the preсise question presented here has been found, though there are many eases in which the question of the dis-chargeability of judgmеnts in actions for separation and alimony has been considered. In none of these was there an attempt to separate costs and an award for alimony.

Motion to set aside the garnishee execution is denied.