White v. White, 233 Mass. 39

White v. White

233 Mass. 39 | Mass. | 1919

Carroll, J.

In February, 1918, on petition of the plaintiff in the Court of Chancery in the State of New Jersey, — it appearing in divorce proceedings instituted by the defendant that the plaintiff and the defendant were lawfully married in 1899 and the defendant without justifiable cause abandoned, and neglected to provide for, the plaintiff, — the defendant was ordered to pay her “Ten dollars per week from and after the date of the filing of the bill of complaint in this cause [[August 16, 1915] for and towards the support and maintenance of the complainant and her infant child.” On May 31 an execution issued on this decree for the sum of $1,248 for “ arrears of alimony and maintenance and . . . $161.72 costs,” against the “goods and chattels” and “the lands, tenements, hereditaments and real estate” of the defendant.

In July, 1918, the plaintiff brought a bill in equity in the Superior Court, Franklin County, alleging that she is-the wife of the defendant; that the defendant had failed to make the payments decreed; that “said judgment by said decree is in full force and has not been reversed, annulled or satisfied in whole or in part; . . . that the defendant has removed . . .’ to the Commonwealth *42of Massachusetts, so that said execution cannot be levied upon his body; and that the defendant has no goods or estate in the State of New Jersey,” and praying that “judgment be entered for the plaintiff” and “that a decree be entered authorizing execution to issue in this Commonwealth for the amount due on said execution” with interest and costs. The defendant demurred to this bill. The demurrer was overruled, and no appeal was taken from the order overruling the demurrer. The defendant answered, the case came on for hearing before a judge of the Superior Court and a final decree was entered ordering the defendant to pay to the plaintiff the sum \of $1,435.09 and $17.89 costs, and that execution issue therefor. There was no appeal from this decree, and to enforce it these proceedings for contempt were instituted. The plaintiff moving for an order of notice to the defendant to show cause why he should not be adjudged in contempt, the judge of the Superior Court ruled that the court had no jurisdiction to punish the defendant for contempt for failing to pay money according to the decree of the Superior Court, “when that decree is based upon a decree of a New Jersey court, in separate support or divorce proceedings,” and reported the case with the stipulation that, if his ruling was right, the motion should be overruled; and, if his ruling was wrong, the motion was to stand for hearing.

The right to bring an action at law or a suit in equity upon a decree of a court of a foreign State, ordering the payment of arrears of alimony, was discussed in Page v. Page, 189 Mass. 85. See Allen v. Allen, 100 Mass. 373, 375. In Wells v. Wells, 209 Mass. 282, it was decided that an action at law could be maintained in this Commonwealth upon a final decree of the Circuit Court of Michigan for an ascertained sum of money payable to the divorced wife for the support of herself and children. In Taylor v. Stowe, 218 Mass. 248, an execution for arrears of alimony was issued by the Supreme Judicial Court of Maine. The plaintiff brought an action in this Commonwealth and recovered on the decree. This court said, page 250: “The defendant became indebted to the plaintiff for the instalments of alimony as they accrued. The decree was an enforceable judgment in the State where it was rendered; and, at the latest, after execution was issued, it was not open to revision. Our duty to give effect to it clearly *43results from the full faith and credit clause of the Federal Constitution.” See Sistare v. Sistare, 218 U. S. 1.

A decree for separate maintenance or alimony ordered in divorce proceedings is like any other money judgment in an action at law for a debt, or a decree of a court of equity for the payment of money; and it is immaterial whether the original decree was based on an action of contract or on a petition for separate support in divorce proceedings. Sistare v. Sistare, supra. “Whether the original decree was founded upon a common debt or a claim for alimony is entirely immaterial. In the sister State it was known as a decree for the payment of money, and is seen in no other light.” Page v. Page, 189 Mass. 85, 88.

The New Jersey decree directed the defendant to furnish a bond with sureties to secure the performance of the decree, and if he neglected to give such bond or provide for the payments ordered the plaintiff was at liberty to apply to the court for process of sequestration or for such other order as the court deemed equitable. These were matters of execution and were no part of the judgment. While the judgment will be enforced in our courts, the plaintiff .cannot insist that the foreign judgment be executed by means of the remedies directed in the New Jersey decree. Lynde v. Lynde, 181 U. S. 183. That decree, when it is before the courts of this Commonwealth for enforcement, is a decree merely for the payment of money.

The record presents, on the point reported, the single question whether a court of equity has jurisdiction to enforce a decree by contempt proceedings when that decree is merely for the payment of money. Originally the only way by which a court of equity could enforce its decrees was by process of contempt with imprisonment and sequestration of property, and until the power was conferred by statute or rule of court, a court of equity could not issue an execution in common form. This was true of a decree for the payment of money and such a decree was enforced by’ a process of attachment for contempt, and not by execution as in an action at law. See Dan. Ch. Pl. & Pr. (6th Am. ed.) 1032, 1042; 10 R. C. L. 353; Orchard v. Hughes, 1 Wall. 73, 77; Noonan v. Lee, 2 Black, 499, 509. Power is now given by R. L. c. 159, § 39, to courts of equity to issue writs of execution in common form for the enforcement of their decrees if such process is appropriate, *44and also by Equity Rule 37, which rule provides that where a decree in equity is solely for the payment of money, final process to execute the decree may be by writ of execution in common form. See Burrows v. Purple, 107 Mass. 428, 434; Slade v. Slade, 106 Mass. 499, 500.

Although in modern practice a money decree in equity is generally enforced by process of execution as in ordinary Cases and not by contempt proceedings,— see Clements v. Tillman, 79 Ga. 451; Baily v. Hornthal, 154 N. Y. 648; U. S. Equity Rule 8; Equity Rule 37; Martin v. Barnes, 214 Mass. 29; see, in this connection, Davis v. Davis, 9 L. R. A. (N. S.) 1071; Bennett v. Bennett, 18 Dick. 306, — nevertheless a court of equity still retains its jurisdiction to enforce or carry out its decrees, include ing a decree for the payment of money, by proceedings for contempt. See Dan. Ch. Pl. & Pr. supra; Jones v. Boston Mill Corp. 4 Pick. 507. And this power to enforce a money decree by attachment for contempt is no greater than the power conferred by R. L. c. 168, §§ 80, 81. Brown’s Case, 173 Mass. 498. It follows that the court had jurisdiction to enforce its decree for a money payment by issuing an attachment for contempt, and the ruling of the Superior Court that it “had no jurisdiction to punish the defendant for contempt in failing to pay money according to a decree of that court, when that decree is based upon a decree of a New Jersey court in separate support or divorce proceedings in New Jersey” was wrong.

According to the terms of the" report, the motion is to stand for a hearing.

So ordered.