Aldrich v. Aldrich

• Citation: 163 So.2d 276
• Decision Date: 22 April 1964
• Docket Number: No. 33138,33138
• Parties: Marguerite Loretta ALDRICH, Petitioner, v. William T. ALDRICH et al., Respondents.
• Court: United States State Supreme Court of Florida

Page 276

163 So.2d 276

Marguerite Loretta ALDRICH, Petitioner, v. William T. ALDRICH et al., Respondents.

No. 33138.

Supreme Court of Florida.

April 22, 1964.

Lane, French, Primm, Lane & Carrier, Miami, and Herman D. Rollins, Charleston, W. Va., for petitioner.

Charles M. Love, Ernest H. Gilbert of Dayton Campbell & Love, Charleston, W. Va., for respondents.

James E. Joanos, of Dye, Tucker & Joanos, Tallahassee, amicus curiae.

ROBERTS, Justice.

We here consider four questions of state law certified by the Supreme Court of the United States to this court for decision as auhorized by Section 25.031 Florida Statutes, F.S.A., Florida Appellate Rule 4.61, 31 Florida Statutes, 31 F.S.A., and our decision in Sun Insurance Office, Limited v. Clay, Fla., 133 So.2d 735. That Court acted in response to a petition for writ of certiorari to the Supreme Court of Appeals of the State of West Virginia in Aldrich v. Aldrich, 375 U.S. 249, 84 S.Ct. 305, 11 L.Ed.2d 304. We appreciate the courtesy of the Supreme Court of the United States in allowing this court to participate in the settling of an important principle of state jurisprudence.

The petitioner, Marguerite Loretta Aldrich, filed suit for and was granted a divorce from her husband, M. S. Aldrich (now deceased), in the Circuit Court of Dade County, Florida, in 1945. The final decree awarded her $250.00 per month as 'permanent alimony' and provided that such monthly sum should be a charge against the husband's estate during her lifetime, in the event he pre-deceased her. No reference was made in the decree as to an agreement between the parties settling their property rights or stipulating for the payment of alimony from the estate of the husband after his death. The original case was not appealed, and we do not have the record of the divorce proceeding before us. It is, however, stated by the Supreme Court of the United States in its opinion, supra, that 'There was no prior express agreement between the parties that the estate would be bound.' No appeal was taken by either party from the final decree.

M. S. Aldrich ('the husband' hereafter) died testate, a resident of Putnam County, West Virginia, in 1958. He was not in default in the payments of alimony to his former wife ('the petitioner' hereafter) at the time of his death. His will, naming his second wife and his son as the sole beneficiaries of his estate, was duly admitted to probate. The petitioner filed the instant suit to recover the amount of unpaid alimony accrued since the date of the death of the husband and the date of the institution of her suit. The trial court held that the provisions of the divorce decree purporting to bind the estate of the husband for the payment of the alimony accruing after his death were 'invalid and unenforceable' and entered summary judgment for the defendants. On appeal to the Supreme Court of Appeals of West Virginia, the decree of the lower court was affirmed by a majority of the court. Aldrich v. Aldrich, W.Va.1962, 127 S.E.2d 385.

Thereupon, the petitioner applied to the Supreme Court of the United States for review, on certiorari, of the appellate court's decision on the basis of the 'full faith and credit' clause of the federal constitution, Sec. 1, Article IV. As noted, the Supreme Court has certified to us for decision four questions of law arising out of the controversy. They are as follows:

'1. Is a decree of alimony that purports to bind the estate of a deceased husband permissible, in the absence of an express prior agreement between the two spouses authorizing or contemplating such a decree?

'2. If such a decree is not permissible, does the error of the court entering it render that court without subject matter jurisdiction with regard to that aspect of the cause?

3. If subject matter jurisdiction is thus lacking, may that defect be challenged in Florida, after the time for appellate review has expired (i) by the representatives of the estate of the deceased husband or (ii) by persons to whom the deceased husband has allegedly transferred part of his property without consideration?

'4. If the decree is impermissible but not subject to such attack in Florida for lack of subject matter jurisdiction by those mentioned in subparagraph 3, may an attack be successfully based on this error of law in the rendition of the decree?

The first question is answered in the negative, with the understanding that 'alimony' is used in its technical sense as the 'nourishment' or 'sustenance' which a husband may be compelled to pay his wife for her maintenance when living apart from her or when she obtains a divorce from him. See Jacobs v. Jacobs, Fla.1951, 50 So.2d 173. This type of permanent alimony was provided for in the statute (enacted October 31, 1828) which first authorized divorces in this state. It was obviously included as a necessary concomitant thereto as a social necessity to prevent the wife from becoming a public charge or an object of charity. It is the statutory equivalent of the common-law obligation of the husband to provide the day-to-day necessities of life--food, clothing, habitation, and the like--to his wife during their coverture and joint lives. See Floyd v. Floyd, 91 Fla. 910, 108 So. 896. As stated in the early case of Phelan v. Phelan, 12 Fla. 449:

'Permanent alimony is not a sum of money or a specific proportion of the husband's estate given absolutely to the wife. It is a continuous allotment of sums payable at regular periods for her support from year to year.'

This original concept of alimony as a periodic payment from year to year in accordance with the needs of the former wife and the ability of the former husband to pay, which could be modified by the court to meet a change in either circumstance, was consistently adhered to by this court, despite efforts by lower courts to broaden it--until, in 1947, the Legislature amended Section 65.08 to provide for periodic payments of alimony or payment 'in a lump sum'. Ch. 23894, Laws of Florida, Acts of 1947. Because of the strict construction of the statute, as amended, as precluding an award of both periodic and lump-sum alimony, see Ehrlich v. Ehrlich, Fla.App.1961, 130 So.2d 630, and cases cited, the Legislature again intervened and amended Section 65.08 by adding the words 'or both', so that a lumpsum award of alimony may now be joined with a periodic-payment award. Ch. 63-145, Laws of 1963.

Relevant here, also, as illustrative of this court's interpretation of Ch. 65, Fla.Stat., F.S.A., in accordance with the common-law principles respecting the obligation of the husband and father to his wife and children, are the decisions respecting the liability of the father towards the children of his former marriage. See Guinta v. Lo Re, 1947, 159 Fla. 448, 31 So.2d 704; Flagler v. Flagler, Fla.1957, 94 So.2d 592; and Simpson v. Simpson, Fla.App.1959, 108 So.2d 632. As stated in the Simpson case,

'Predicated on the common law is the rule that a father is under no legal responsibility to provide for the support of his minor children subsequent to his death. Florida has, by divided court, aligned herself with other jurisdictions which have subscribed to the principle, in cases where no agreement is involved, that upon the death of a father who has been ordered to make payments for the support of a child, the order terminates as to payments which would have accrued subsequent to his death.'

Similarly, predicated on the common-law rule that the obligation of the husband to support his wife ended at his death, it has been uniformly held by this court that his obligation to pay alimony ceases at his death 'The provision in the decree awarding the wife $500 per month to continue so long as she remained single and unmarried (the same as that provided in the contract between the parties) justifies the conclusion that the decree was an approval of the contract, and not an award of alimony, because the court had no authority to make an award of alimony to continue so long as the wife remained single and unmarried but did have authority to approve a contract between the parties containing that provision.' (Emphasis added.)

unless he agrees that his estate is to be bound after his death for such payments. See Allen v. Allen, 111 Fla. 733, 150 So. 237; Underwood v. Underwood, Fla.1953, 64 So.2d 281. The decisions from other jurisdictions cited in the Underwood case in support of the statement, 'By its very nature, alimony is limited to the lifetime of the husband', are significant. Thus, in North v. North, 339 Mo. 1226, 100 S.W.2d 582, 109 A.L.R. 1061, the court was concerned with the question of whether a monthly allowance awarded to the wife by the divorce decree was an award of alimony or an approval of the contractual obligation assumed by the husband. The court said:

And in Dickey v. Dickey (1928) 154 Md. 675, 141 A. 387, 58 A.L.R. 634, also cited in the Underwood case, where the decree incorporated an agreement between the parties and ordered the husband to pay a weekly sum to the wife 'as permanent alimony until her death or remarriage,' the appellate court said that permanent alimony is a provision for the wife's support 'that continues only during their joint lives or so long as they live separate and apart', and pointed out that it would have been impossible for the Chancellor to have allowed 'permanent alimony' as the decree provided, in the absence of the agreement between the parties specifically so providing.

The decisions of this and other courts, referred to above, are in accord with the great weight of authority that, in the absence of statute or agreement between the parties, it is not ordinarily permissible for a court to provide in its decree that alimony payments shall continue to accrue after the death of the ex-husband and be payable out of his estate. See the cases collected in the annotation in 39 A.L.R.2d 1406 et seq. It is contended on behalf of the petitioner, however,...