Page v. Page

• Decision Date: 09 September 1905
• Parties: PAGE v. PAGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 85

75 N.E. 92

PAGE v. PAGE.

Supreme Judicial Court of Massachusetts, Suffolk.

September 9, 1905

COUNSEL

Olcott O. Partridge and Edgar C. Bancroft, for petitioner.

Frank L. Young, for respondent.

OPINION

HAMMOND. J.

This is a petition in equity filed in the superior court to recover arrears of alimony claimed to be due under a decree of the Supreme Judicial Court of the state of Maine, by which the court decreed a divorce a vinculo in favor of the petitioner Helen Kelso Page, against the respondent, her husband awarded to her the custody of their minor child, and directed the respondent to pay $6 per week as alimony 'said payment to be made each four weeks.' The petition sets out the decree and alleges that the court had jurisdiction over the case and full authority to pass the decree; that the child is still a minor, and since the date of the decree always has been in the care and custody of the said Helen; that since the decree the respondent has paid only $25; and that at the time of filing this petition there was due from the respondent, by the terms of the decree, the sum of $479, which he, although frequently requested, has refused and neglected to pay. The prayers are, first, that the court may ascertain and decree what sum is justly and equitably due from the respondent; second, that the court may issue execution therefor, or order the respondent to pay such sum within a certain time to be fixed by the court; third, that there may be included in such execution or order such sums as may be found justly due for the support of the child during the time subsequent to this petition and while it is pending; fourth, that the respondent be ordered to furnish sufficient security for the payment of such sums as may from time to time become justly due under said decree; and fifth, for such other relief as to the court may seem meet and proper. To this petition the respondent demurred. The justice of the superior court overruled the demurrer, and, being of opinion that before further proceeding the matter ought to be determined by this court, reported for our determination the questions of law arising upon the petition and demurrer.

The language of the decree is somewhat peculiar. It directs that the sum of $6 per week shall 'be paid by the libelee to the attorney for the libelant for the support of said minor child; said payment to be made each four weeks, and to be in lieu of alimony.' We construe this decree to be in substance an order to the libelee to pay the libelant the sum named, to be used by her in the support of herself and the child, and that the libelant could enforce against the libelee whatever duty was placed upon him by the decree. The provision that it should be paid to the attorney of the libelant, rather than to her in person, was doubtless inserted for the convenience of the parties. At any rate, it does not affect the substance of the liability imposed upon the respondent. We shall therefore treat this case as an application to enforce the payment of arrears of alimony ordered by a competent court of a sister state.

It is to be noted that, as an application to pass upon a question of alimony as such, this petition cannot be maintained. Alimony is incidental to a suit for divorce or judicial separation, and neither at common law nor by the weight of authority in a court of equity, no suit for judicial separation then pending, could it be granted. Originally it was solely a question for the ecclesiastical courts. Shannon v. Shannon, 2 Gray, 285; Pomeroy, Eq. Jur. § 1120, and cases there cited; Lynde v. Lynde, 54 N. J. Eq. 473, 35 A. 641, and cases there cited. In Shannon v. Shannon it was held that in this commonwealth the authority to grant alimony is now derived wholly from the statutes. With the exception named in Rev. Laws, c. 152, § 26, which is not here material, the statutes apply only to cases where the question of divorce or separation is heard in our own courts. Rev. Laws, c. 152, §§ 25, 27-33, both inclusive. Upon this petition, therefore, we cannot make any inquiry as to the proper amount to be allowed as alimony; nor can the order of the Maine court as to alimony be enforced in any of the ways set forth in our statutes. The questions as to whether any alimony should be allowed, and, if so, how much, are not for our consideration, but they are exclusively for the Maine court; and we can have no part in the matter until the question of amount has been there settled, and even then we cannot make use of the statute proceedings, because they are not applicable. Whatever relief we can give must be founded upon general principles.

It is unnecessary at this late day to cite authorities in support of the general proposition that when a court of one state, having jurisdiction over the cause and parties, finally adjudicates that a certain sum of money shall be paid by one party to another, such an adjudication, whether it be in the form of a judgment in an action at law, or of a decree in equity, or a proceeding for divorce or alimony, is entitled, under the first section of the fourth article of the federal Constitution, to full faith and credit in every other state. Such an adjudication is made a debt of record not examinable on its merits, not only in the state where rendered, but in every other state. When an action is brought in a sister state upon such a judgment or decree, the court in which the action is brought has no occasion to inquire into the merits of the case upon which the decree was rendered. The court which rendered the decree has settled that question. Whether the original decree was founded upon a common debt or a claim for alimony is entirely immaterial. In the sister state it is known as a decree for the payment of money, and is seen in no other light. But, in order that decree shall have this force under the Constitution, it is necessary that it shall be final; and the authorities have differed as to whether a decree for the future payment of alimony by installments is a final decree. In many cases a decree for the future payment of alimony by installments has been regarded as within the constitutional provision. In some of these cases the particular decree, although providing for future payment, was in such form as to be regarded not to be subject to further revision by the court which passed it, and therefore final (Brisbane v. Dobson, 50 Mo.App. 170); in some the point that such a decree was not final has not been taken by the defense ( Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227); and in some it has been directly decided that such a decree was final, and within the terms of the constitutional provision (Arrington v. Arrington, 127 N.C. 190, 37 S.E. 212, 52 L. R. A. 201, 80 Am. St. Rep. 791, a majority decision).

But the question whether a decree for the future payment of alimony which is subject to the revision of the court, is a final decree, and comes within the protection of the constitutional provision, seems to have been recently settled by the Supreme Court of the United States. Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810. This case, in its various stages, is very instructive upon this whole question of the extent to and the manner in which a decree for alimony will be enforced in another state, and its importance justifies an extended notice of it. In August, 1893, on libel by the wife, a divorce was decreed between the parties by the Court of Chancery of New Jersey. The decree was silent as to alimony. In February, 1896, the libelant, alleging that this decree was incomplete through the neglect of her counsel, filed a petition in that court, praying for an opening and amendment of the decree by allowing reasonable alimony. Lynde v. Lynde, 54 N. J. Eq. 473, 35 A. 641; Id., 55 N. J. Eq. 591, 39 A. 1114. Thereupon such proceedings were taken that in December, 1897, a final decree supplementary to the...