| N.Y. App. Div. | Nov 13, 1912
Lead Opinion
The plaintiff is a resident of California, and in an action brought against her by one Anna M. Morris for damages for alienating her husband’s affections, an attachment was issued to the defendant as sheriff of the county of Saratoga commanding him to attach such property of the plaintiff as he should find in his jurisdiction. By virtue of such writ the sheriff levied upon $1,500 past due alimony which had been paid by the plaintiff’s former husband from whom she had obtained a decree of divorce, in compliance with such decree, to a third party for plaintiff’s benefit, and. also upon $200 due upon a debt owing by him to her, as well as upon the plaintiff’s interest in a contract whereby her husband had agreed to turn over to her on the 1th day of December, 1914, $60,000 from a legacy then payable to him under the will of his father, which by contract the plaintiff had agreed to accept in lieu of further alimony provided to be paid by the decree.
Thereupon the plaintiff brought this action to release from such levy the $1,500 due her as alimony from her husband on the ground that it was not subject to attachment in the kind of action which Mrs. Morris had brought against her and in which the attachment was issued.
Neither the levy upon the $200 debt due from the husband to the plaintiff nor the levy upon her interest in the agreement to
The trial court found that the $1,500 of alimony, although past due, was not attachable and directed its release and enjoined the further attaching of any installments thereof.
We think the judgment was right and that it should be affirmed. The authorities are clear that alimony as such cannot be attached in an action against the wife to whom it is awarded except in an action for such necessaries as the husband would be obliged to furnish had the marital relation continued.
In Romaine v. Chauncey (60 Hun, 477" court="N.Y. Sup. Ct." date_filed="1891-06-26" href="https://app.midpage.ai/document/romaine-v-chauncey-5501059?utm_source=webapp" opinion_id="5501059">60 Hun, 477; 129 N.Y. 566" court="NY" date_filed="1892-01-20" href="https://app.midpage.ai/document/romaine-v--chauncey-3589225?utm_source=webapp" opinion_id="3589225">129 N. Y. 566) it is held that alimony granted to a wife in an action brought by . her against her husband for divorce, is granted for the purpose of her support and that public policy will not permit it to be interfered with and diverted from that channel. . This principle was followed in Matter of Bolles (78 A.D. 180" court="N.Y. App. Div." date_filed="1903-07-01" href="https://app.midpage.ai/document/in-re-bolles-5192597?utm_source=webapp" opinion_id="5192597">78 App. Div. 180) where the attorney sought to appropriate alimony for the payment of disbursements in the action itself, and in Matter of Brackett (114 A.D. 257" court="N.Y. App. Div." date_filed="1906-06-27" href="https://app.midpage.ai/document/in-re-brackett-5199823?utm_source=webapp" opinion_id="5199823">114 App. Div. 257) where it was held that the wife could not make a valid contract with her attorney to give him a certain percentage of what she might receive for her support and maintenance in an action for separation from her husband.
In Thayer v. Thayer (145 A.D. 268" court="N.Y. App. Div." date_filed="1911-06-02" href="https://app.midpage.ai/document/thayer-v-thayer-5220643?utm_source=webapp" opinion_id="5220643">145 App. Div. 268), upon which the appellant relies, the court does use the expression that the amount due the wife for alimony is in the nature of a judgment debt against the husband. The question under consideration in that case, however, was whether or not a judgment should be entered, and it was only in justification of its entry that such language was used. The question of the character of the alimony and its attachability was not under consideration and the question here at issue was not there decided.
The action in which the present attachment was issued was to recover damages for a wrong.' If no divorce had ever been granted to the plaintiff from her husband he would not have been liable to pay damages for her torts. He would have been hable for necessaries furnished to her which he had faffed to provide. The alimony which he was directed by the court to pay to her was in lieu of the furnishing of necessaries to her
The main contention of the defendant, however, is that the semi-annual payments of $1,500, although called alimony and directed by the decree of divorce to be paid as such, were not alimony at all but were payments which the husband had agreed by contract with the wife to make to her, and hence were attachable.
The interlocutory decree of divorce was granted on the 11th day of December, 1909, and was followed by a final decree granted on the 15th day of March, 1910. On the 10th day of November, 1909, presumably after the plaintiff’s action for divorce had been begun, the plaintiff’s husband transferred and set over to her $60,000 from his portion of the estate of his father, for her use during her natural life, with .the right to spend any part of the principal for her own use and benefit, which she might see fit, but if any part should remain unexpended at her decease the same to revert to the husband or his heirs or assigns. On the 11th day of December, 1909, the same day on which the interlocutory decree of divorce was granted, the plaintiff and her husband entered into an agreement in writing. This agreement recited the granting of the interlocutory decree and the direction for the payment of $3,000 a year alimony, and further recited as follows: “Whereas, the party of the second part [husband] desires the party of the first part [this plaintiff] to accept in lieu of alimony after the 1th day of December, 1914, a gross sum, to wit, sixty thousand dollars, in the manner provided by a certain conveyance made by the party of the second part to the party of the first part bearing date the 10th day of November, 1909.” Then followed an agreement to pay the alimony as stipulated by the decree, a ratification of the agreement of November 10, 1909, together with other instruments which had been executed between them, and the further agreement on the part of the husband to pay all household bills theretofore contracted, and rent to a certain . time, in consideration of all which the wife, this plaintiff, agreed to accept the $60,000 as provided in' the transfer of
It is very plain that this' agreement was not intended and did not supersede the decree of divorce. So far as the payment of alimony up to the 7th day. of December, 1914, was involved the agreement was merely supplemental to the decree and subordinate to it. It was entirely unnecessary for the husband to agree to pay the alimony. The decree bound him to do that. The $1, 500 which was levied upon was paid as alimony and as directed by the decree. The apparent object of the agreement was the ratification of the various conveyances and agreements had between the husband and the wife, and the fixing of responsibility for household bills and rent and the agreement on the part of the; wife to accept the transfer of the $60,000 in lieu of alimony after the 7th day of December, 1914. It does not appear in the record why this latter date was selected, but presumably it was because on that date'some greater right would accrue to the husband under his father’s will than then existed. By the agreement of November 10, 1909, the transfer of the $60,000 interest is not postponed to a future time but apparently, takes effect at once. Notwithstanding this fact, however, although the trustees of the father’s estate had knowledge of the transfer because the plaintiff’s attorney was one of such trustees, still the plaintiff and everybody concerned assumed that the plaintiff was not entitled to the income of the $60,000 and it was paid over to her husband and he ■ in turn paid such part of it as was necessary to satisfy the provision for alimony. It chances that five per cent on" $60,000. amounts to $3,000 which was the amount of the alimony. But that fact does not make the payments which the husband made payments of interest instead of alimony, and we think the court was entirely justified in saying that the payments which the husband did make were payments in satisfaction of the decree and not a turning over of interest to the plaintiff Which she was already entitled to under the transfer of the $60,000 interest in his father’s estate.
The facts in the case óf Andrews v. Whitney (82 Hum, 117) bear much similarity to those in the case at bar, and the decision illustrates not only the care with which the courts pre
The action is in equity, and the defendant insists that the plaintiff must come into court with clean hands. If the moving affidavits in the attaching creditor’s action are to be taken as true, the present plaintiff would seem quite immoral, and it would be quite impossible to characterize her hands as clean. While equity does not employ itself in settling quarrels amongst rogues, still a rogue may have a clean cause of action, and it is with reference to the cause of action which he produces that the maxim of clean hands applies. So far as the present action is concerned the plaintiff was entirely within her rights in asking that the $1,500 of alimony be relieved from the levy of the attachment.
As we have stated, the levy upon the $200 debt and the interest of the plaintiff in the $60,000 assignment from the estate of the father of the husband remains unaffected by this action or by our determination.
The judgment should be affirmed, with costs.
All concurred, except Kellogg, J., dissenting in opinion.
Dissenting Opinion
It is a mistake to consider that the moneys attached are alimony. A brief statement of the facts indicates clearly that the attachment should stand.
Anna W. Morris, in January, 1912, brought an action in the Supreme Court against Clara Lucas West, the plaintiff in this action, for enticing her husband away, and upon an affidavit that the said parties were living in adultery in the State of California, obtained an attachment which was levied by the sheriff upon the $60,000 interest which the said Clara Lucas West had in the estate of George West, which had been assigned to her November 10, 1909, by her former husband, FredH. West, a son of said George West, and upon $1,500 alimony payable to her and upon $200 due from him to her upon a note. No money or property was actually taken into the
The interlocutory judgment of divorce in favor of the present plaintiff against her husband was dated December 11, 1909, and was entered two days thereafter. It does not appear when the action was brought.
November 10, 1909, her husband assigned to her $60,000 of his share in his deceased father’s estate, which interest was levied upon by the attachment herein. The value of his interest in his father’s estate does not affirmatively appear otherwise than that it yields an income of about $6,000 per year, which on a five per cent basis would represent .$120,000. The assignment purported to take effect immediately, and would carry with it the income on that fund accruing after its date, which at five per cent would be $3,000 per year, from which we infer that the husband had transferred to his wife one-half of his interest in the estate. On the eleventh day of December following she and her husband entered into an agreement reciting that an interlocutory judgment of divorce had been granted her that day and that it provides alimony of $3,000 per year, and the husband desires her to accept in lieu of alimony, after the 7th day of December, 1914, a gross sum of $60,000 in the manner provided for in the said assignment of November tenth. The instrument then witnesseth that in.consideration of a dollar to each party by the other paid the husband is to pay $3,000 per year alimony in semi-annual pay
The husband confirms the following instruments executed by him: (1) The assignment of the $60,000 of November 10, 1909; (2) a hill of sale of a Thomas automobile and other personal property; (3) three promissory notes given by him to her aggregating $4,000 and an assignment to her of $20,000 interest in his father’s estate as security for the notes; (4) a deed of real estate in Saratoga county known as the Fred West garage lot; (5) a bill of sale of a wagon and other personal property. In addition to which he is to pay all household hills and the rent of the premises occupied by her up to May 1, 1910. The 6th item of said agreement is: “ The party of the first part [this plaintiff] agrees to accept the payments and conveyances above described in full of all claims and demands against the party of the second part for alimony or otherwise, and the party of the first part expressly agrees to accept and receive said Sixty thousand dollars on the 7th day of Decemher, 1914, as a gross sum in lieu of alimony from and after the said 7th day of Decemher, 1914, in the manner provided by said conveyance made by said Fred H. West to said Clara L. West on the 10th day of November, 1909.”
The record indicates a friendly divorce made after a full final settlement. Apparently she was to receive $60,000 besides the other items mentioned in consideration of the divorce. The interlocutory and final judgment gave her no property rights which she did not have prior thereto. By the assignment she became the owner of $60,000 interest in the estate; the so-called alimony is $3,000, which represents the interest on that sum at five per cent. The alimony was to be paid until 1914, when the $60,000 was to he delivered over. The benefits purporting to come to her from the divorce, except the right to remarry and a freedom from her husband, she had secured before the interlocutory judgment. She is not in a position to question the legality of the assignment of November tenth. It was ratified by the subsequent agreement, and it was conceded upon the trial that it was executed and delivered on the day of its date and that there has been no paper against it or any changes in it so far as the attorney representing the plaintiff knew.
To fully understand what the parties were doing, this agreement and the interlocutory judgment, which were signed the same day, must be'read together and considered as one transaction, and it then becomes clear that it was understood between the parties that the plaintiff should have no further property rights than those given to her by the agreement of November tenth. If, as suggested, We assume that, under the will of George West, Fred H. West is entitled to semi-annual interest on his share of the estate until 1914, when the corpus is to be paid over, and that nothing was to be paid to him prior to 1914 but interest, that emphasizes the fact that before the divorce was granted full financial arrangements were made between the parties and that the alimony provisions of the decree and the agreement of the same date were simply intended as further assurance for the payment of the moneys provided for by the agreement of November tenth. Reading the decree and the agreement of December eleventh together it becomes clear that her interest in the $60,000 is recognized as her property and that she is to have nothing from her husband aside from what he had transferred to her before a divorce was granted. The only effect of the agreement of December eleventh upon the agreement of November tenth is, that it recognized that for some reason the corpus of the $60,000 is not to be paid to the wife until 1914, but that she is to have an amount equivalent to the interest thereon. In other words, it is recognized as hers, but the date of the final payment is postponed.
• Alimony is usually a sum granted by the .court to the wronged wife to provide the support her husband owes her. This is not such a case. The attachment in question is based upon a cause of action in favor of Mrs. Morris against the pres
There is no warrant for treating the $60,000 assigned by the agreement of November tenth as alimony. It is payable in bulk in 1914 and was her property before the interlocutory judgment and perhaps before action brought. The judgment is clearly wrong so far as it vacates the attachment with reference to that fund. It does not in terms do so, but the interlocutory judgment provides for a perpetual payment of $3,000. The agreement at the worst modifies the interlocutory judgment and makes a settlement in gross for $60,000. That sum is clearly attachable. In my judgment calling the income, which is to be paid semi-annually, alimony instead of interest does not change its character and render it exempt.
I favor a reversal of the judgment upon the law and the facts and a judgment dismissing the plaintiff’s complaint, with costs.
Judgment affirmed, with costs.