193 A. 860 | Pa. Super. Ct. | 1937
Argued May 3, 1937. On March 7th, 1936, plaintiff issued a writ of foreign attachment in assumpsit, and summoned Fidelity Trust Company as garnishee. The said writ was served on the garnishee on March 7th, 1936, and returned nihil habet as to the defendant. The garnishee and the defendant, by their respective counsel, both entered appearances de bene esse on March 17th, 1936.
On May 21st, 1936, the plaintiff filed her affidavit of cause of action and statement of claim wherein it appears that the plaintiff is a resident of the State of Florida, and is the wife of the defendant and that the defendant is a non-resident of Pennsylvania. The plaintiff's claim is based upon a decree of Circuit Court of the Eleventh Judicial Circuit of the State of Florida, denying a divorce to the defendant in the attachment proceeding and awarding alimony, in the amount of *570 $325 per month, and the sum of $4,750 to her for the use and benefit of her solicitors. Plaintiff claims the sum of $775 with interest.
On May 29th, 1936, upon petition of the garnishee, a rule was granted upon plaintiff to show cause why the writ of foreign attachment should not be quashed, or the attachment dissolved. As appears by said petition, the garnishee asserted that the plaintiff had improperly joined causes of action; that the affidavit of cause of action and statement of claim was insufficient in that it failed to disclose that the decree of the Florida court was a final decree, entitled to full faith and credit; and that the greater part of defendant's property in the hands of the garnishee was exempt from his attachment, being the defendant's interest in a spendthrift trust.
On June 29th, 1936, the court, in an opinion by ROWAND, J., refused the petition of the garnishee.
On September 23rd, 1936, upon petition of the defendant, a rule was granted upon the plaintiff to show cause why the writ of foreign attachment should not be quashed or the attachment dissolved, or at least dissolved with respect to the defendant's interest in the spendthrift trust. The averments of the defendant's petition were substantially the same as those in the petition of the garnishee.
On October 17th, 1936, the court discharged the said rule for the reasons set forth in the opinion of the court dated June 29th, 1936.
From the order of the court dismissing the defendant's petition, the defendant appealed to this court under the provisions of the Act of Assembly of April 26, 1917, P.L. 102 (Title 12 P.S.A. Section 1108-1110 inclusive).
The entire record of the proceeding at which the Florida decree of January 3, 1936, was entered is attached as Exhibit "A" to plaintiff's affidavit of cause *571 of action and statement of claim. The tenth and eleventh paragraphs of the decree, which paragraphs form the principal basis for the cause of action in this case, read as follows: "Tenth: That the plaintiff and cross-defendant, Henry S.A. Stewart, Jr., do pay the defendant and cross-complainant, Bertie Gennett Parkes Stewart, $325 on January 19th, 1936 and $325 on the 19th day of each month thereafter as permanent alimony for maintenance and support, the said payments to be made to the clerk of this court for the use and benefit of the defendant and cross-complainant, Bertie Gennett Parkes Stewart.
"Eleventh: That the plaintiff and cross-defendant, Henry S.A. Stewart, Jr., do pay to the defendant and cross-complainant, Bertie Gennett Parkes Stewart, for the use and benefit of her solicitors Bryant Pittman, the sum of $4,750 as final counsel fees, said sum being in addition to the temporary fees heretofore allowed by this court; that said money be paid by the plaintiff and cross-defendant, Henry S.A. Stewart, Jr., to the clerk of this court for the defendant and cross-complainant, Bertie Gennett Parkes Stewart, for the use and benefit of her solicitors, Bryant Pittman, which sum shall be payable as follows: $250 per month, payable at the same time and in a like manner as the alimony payments."
The record as attached to the statement of claim also contains a judgment for unpaid alimony through March 24, 1936, which judgment, after reciting the decree, reads as follows: "It is ordered and adjudged that the defendant and cross-complainant, Bertie Gennett Parkes Stewart, do have and recover of Henry S.A. Stewart, Jr., the plaintiff and cross-defendant, the sum of one thousand three hundred and fifty dollars, lawful money of the United States of America for which let execution issue."
The arrearages due at the time the attachment was *572 entered, according to plaintiff's affidavit of cause of action and statement of claim amounted to $775.
Appellant in support of his motion to quash or dissolve the attachment specifies two grounds: (a) The plaintiff has improperly joined causes of action in this suit, brought in her own name; and, (b) The affidavit of cause of action and statement of claim are insufficient.
In the petition filed by defendant in the lower court the ground for quashing are as follows: (1) — An alleged improper joinder of a cause of action in plaintiff's own right and one for the use and benefit of her solicitors. (2) — The failure to aver that the Florida decree is final and that the same has not been appealed from, or that the time for filing the appeal has elapsed. (3) — That the record shows that the Florida court reserved jurisdiction for the purpose of settling future questions involving alimony and suit moneys and therefore that the decree is not final and not entitled to full faith and credit. (4) — The record fails to set forth that the Florida court is without power to alter, vary or modify the decree. (5) — Failure to aver that the Florida court has liquidated or reduced to judgment any sums claimed under its decree.
We do not believe that there is any misjoinder of actions. Both the original decree covering alimony and counsel fees, as also the judgment entered by the court on March 24, 1936, covering judgment for arrearages, order and direct that the respective sums "be paid by the said plaintiff and cross-defendant, Henry S.A. Stewart, Jr., to the defendant and cross-complainant, Bertie Gennet Parkes Stewart."
The court in Florida has followed the practice of the Pennsylvania courts, in decreeing a certain sum to the wife for alimony and a certain other sum for counsel fees. Both sums are payable to the wife. There is no joinder of causes of action of two separate plaintiffs. *573 Under our practice, the wife and not the attorney is the proper party to proceed for the failure to pay counsel fees. The right of a wife to require her husband to pay her counsel fees is no more a representative right than her right to compel her husband to give her money to pay her living expenses.
As to the alleged failure to aver that the decree of the Florida court, dated January 3, 1936, is a final decree which has not been appealed from, or to aver that the time for filing an appeal has elapsed: — The decree in question, as shown by the exemplification of the same attached to and made part of the statement of claim, is, on its face, a final decree, and it is so stated. It is so referred to by the defendant, Henry S.A. Stewart, Jr., in his petition filed for a reduction of alimony. On March 24, 1936, the court in entering the order denying Henry S.A. Stewart, Jr.'s petition for reduction, refers to the "Final Decree heretofore entered herein dated January 3, 1936."
The certificate of the Clerk of Courts of Dade County, Florida, properly verified under the Act of Congress, certifies that the record attached is a correct and complete copy of all the orders entered by the court, and lists among those orders "final decree, filed January 3, 1936" and the judgment filed March 24, 1936. It also lists the pleadings on file, none of which discloses the existence of an appeal.
But even if an appeal had been taken from the original decree, unless there also had been a stay of proceedings, it would not bar an action thereon in another state pending the appeal. SeeMerchants' Insurance Co. v. De Wolf et al.,
"The judgment entered in New Jersey was rendered by a court of competent jurisdiction. It must receive full faith and credit as to all matters in controversy, and which, with proper diligence, might have been interposed as a defense in the original action:Hunt v. Snyder,
"The affidavit of defense filed in this case is insufficient to prevent the entry of judgment."
The Supreme Court affirmed per curiam.
On reargument, the court vacated the judgment because the Supreme Court of New Jersey had reversed the judgment sued upon and remanded the case for further proceedings, and the Pennsylvania Supreme Court remitted the record to the court below to stay proceedings until a counter-claim could be disposed of in the New Jersey courts.
In Christian v. Bennett,
The Supreme Court in its opinion thus outlines the law and facts (24-25): ". . . . . . The court quashed the writ on the ground that `no judgment unliquidated in amount and conditional in its terms can support a foreign attachment.' The order appealed from must be reversed. The West Virginia judgment was liquidated and unconditional, although execution was stayed, and full faith and credit must be given to it: Article IV, section I, of the Federal Constitution, 28 USCA, section 687; Roche v.McDonald,
"Foreign attachment lies `in all actions ex contractu' (Act of June 13, 1836, P.L. 568, section 44, and supplements, 12 PS, section 2891), and compels appearance by the non-resident defendant (Clauss v. Ainey,
". . . . . . As there was no defect in the record rendering the proceeding fundamentally irregular and void, it was error to quash the writ: Pasquinelli v. Southern Macaroni Mfg. Co.,
The faith and credit to which a judgment is entitled is the faith and credit, validity and effect which it has in the State where it was rendered. Quoting from the opinion of the Supreme Court of the United States in Roche v. McDonald,
The reservation of jurisdiction for the purpose of settling future questions in reference to alimony and suit moneys does not change the character of the decree as a final decree. The reservation of jurisdiction is for one purpose only, namely, "for the purpose of settling any future questions involving the same" (alimony and suit moneys).
In Pace v. Pace,
"It is certain that the final decree cannot be reached and corrected on motion for rehearing because of the rule announced in Mabson v. Christ, supra, but we think the bill to correct and modify the final decree may be treated as a bill of review. . .. . ."
The Florida statute providing for the modification of alimony decrees is a statute to modify prospectively. See the Act of June 1, 1935, Session Laws of 1935, Ch. 16780, page 53, Sec. 1, material portions of which read as follows: "Whenever any husband and wife heretofore, or hereafter, . . . . . . (the omitted portion covers agreements) . . . . . . or whenever any husband has pursuant to the decree of any court of competent jurisdiction been required to make to his wife any such payments, and the circumstances . . . . . . of the husband shall have changed since the . . . . . . rendition of such decree, either party may apply to the Circuit Court . . . . . . for an order and judgment decreasing or increasing the amount of such separate support, maintenance or alimony, and the Court . . . . . . shall make such order and judgment as justice and equity shall require, with due regard to the changed circumstances and the financial ability of the husband, decreasing or increasing or confirming the amount of separate support, maintenance or alimony provided for in such . . . . . . decree, and thereafter the husband shall pay and be liable to pay the amount of separate support, maintenance or alimony directed in such order and judgment, and no other or further amount. . . . . ."
Furthermore, as to the unpaid installments, the Florida Court has definitely refused any modification of its final decree.
On March 24, 1936, the Florida Court entered an order confirming the final decree and denying a petition for reduction and entered a judgment on the same day for arrearages under the final decree.
This question has been specifically ruled upon by the *578
Supreme Court of the United States in the case of — Sistare v.Sistare,
In reversing a judgment of the Supreme Court of Connecticut, which had refused to accord the New York decree full faith and credit, the Supreme Court said, per Mr. Justice WHITE, the following: "First, that, generally speaking, where a decree isrendered for alimony and is made payable in future installmentsthe right to such installments becomes absolute and vested, uponbecoming due, and is therefore protected by the full faith andcredit clause, provided no modification of the decree has beenmade prior to the maturity of the installments. Since as declared in the Barber case, `alimony decreed to a wife in a divorce or separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is' . . . . . ." (16-17).
"But it is equally certain that nothing in this language expressly gives power to revoke or modify an installment of alimony which had accrued prior to the making of an application to vary or modify, and every reasonable implication must be resorted to against the *579 existence of such power in the absence of clear language manifesting an intention to confer it. The implication, however, which arises from the failure to expressly confer authority to retroactively modify an allowance of alimony is fortified by the provisions which are expressed. Thus the methods of enforcing payment of future alimony awarded provided by the statute, all contemplate the collection and paying over as a matter of right of the installments as they accrue as long as the judgment remains unmodified, or at least until application has been made or permission to make one in pursuance to the statute has been accorded."
". . . . . . We think it becomes quite clear that the mere enlargement of the power of the court so as to permit modification of the allowance for alimony upon the application of the husband did not confer the authority to change or set aside the rights of the wife in respect to installments which were overdue at the time application was made by the husband to modify the decree." To same effect see Barber v. Barber, 21 How. 582.
As the Florida court has already refused to modify its decree, and as to such installments as are embraced in the present action and sought to be recovered through the present attachment, the record itself is a sufficient averment of the finality of the plaintiff's judicially established right to the accrued installments.
The fact that the judgment of March 24 was entered after the attachment does not prevent the plaintiff relying upon the same in its affidavit of cause of action or statement of claim, at least to the extent of what moneys were due on March 7th, the date the attachment issued. The judgment is a mere liquidation of overdue installments for the purpose of giving a right to issue execution: Dickenson v. Sharpe,
There is no reason to quash or dissolve the writ of *580 foreign attachment in whole or in part, with relation to defendant's interest in the spendthrift trust created for him.
The spendthrift trust was created by deed of trust dated October 21, 1921, made by defendant's father.
Defendant also has an interest in a testamentary trust under his father's will, the right to attach which defendant does not deny. It has no spendthrift provision.
The questions involved in relation to the liability of spendthrift trusts for the support of the wife have been fully discussed and considered in Moorehead's Estate,
The court reviews the contention that the case is governed by the case of Everhart v. Everhart,
"This being so, we think it follows in this jurisdiction that a non-resident, as well as a resident, wife can *582 reach her husband's interest in a spendthrift trust. If, as now settled, such a trust is void as against the claims of a wife, it would be a narrow conception indeed of the public policy which denounces it as immoral to hold that the mere residence of the wife can remove the taint in the instrument. A wife's right to support exists wherever she may reside, and decisions, some of which protect the fundamental rights of wives, while others, by denying them, assist husbands in refusing or neglecting to perform their correlative fundamental duties, cannot be reconciled either in reason or good morals upon any such irrelevant basis as that of residence.
"For the foregoing reasons, we think that plaintiff can reach the spendthrift trust of which her husband is the beneficiary in this action. . . . . ." These questions and the alleged assignments by defendant prior to the attachment, as set forth in defendant's petition to quash or dissolve the attachment, may all be disposed of, either at the trial or on the answers to interrogatories.
As Judge ROWAND of the lower court said in his opinion (68a): ". . . . . . The liability of the funds involved, as we view them, cannot successfully be raised in this proceeding.
"As we review this record there are no defects rendering the proceeding fundamentally irregular and void and we cannot grant the petition to quash the writ or to dissolve it in part. The right to attach the spendthrift trust, as set forth in the petition, can be properly raised and passed upon either at the trial or on the answer to interrogatories, which will no doubt later become a matter of record in these proceedings."
Appellant has shown no defect in the record which renders the proceeding fundamentally irregular and void so as to entitle him to have the writ quashed. Appellee having shown a proper cause of action, there is *583 no ground for a dissolution of the attachment. An averment of some defense on the merits is not enough.
As stated by Chief Justice MOSCHZISKER in the case ofPasquinelli v. Southern Macaroni Mfg. Co.,
The motion to dissolve attachment is designed primarily to take advantage of a failure to present a cause of action in the affidavit. See Mindlin v. Saxony Spinning Co.,
We see no error in the action of the lower court.
The assignment of error is overruled and the order of the lower court is affirmed.