Andrew v. Andrew
| Citation | 20 A. 817,62 Vt. 495 |
| Parties | HENRIETTA ANDREW v. GEORGE ANDREW |
| Decision Date | 03 October 1890 |
| Court | United States State Supreme Court of Vermont |
GENERAL TERM, OCTOBER, 1889.
Petition that the petitionee be adjudged in contempt for the non-payment of alimony. Heard upon demurrer at the December Term, Bennington County, 1888, TAFT, J., presiding. The demurrer was overruled and the defendant excepted. The case appears in the opinion.
Judgment affirmed and cause remanded for further proceedings.
Waterman Martin & Hitt, and W. B. Sheldon, for the defendant.
The county court is the tribunal appointed by statute to hear and determine libels for divorce. It is authorized to issue process of attachment and execution, and other proper process, necessary for the dispatch and final determination of such causes. After a libel for divorce is filed, the court may order the payment of temporary alimony. Upon a dissolution of marriage it may decree to the wife such part of the real and personal estate of the husband, or such sum of money to be paid in lieu thereof by the husband, as it deems just. It is also empowered to require sufficient security to be given for the payment of alimony according to the terms of its decree. It may order the money into the hands of trustees, and direct the manner in which the income shall be applied to the support of the wife and children. After a decree in regard to alimony, the court may from time to time, upon the petition of either party, revise and alter such decree, either as to the amount or the manner of payment. R. L. 2368, 2377, 2381, 2383, 2385, 2386.
The petitioner, on obtaining a divorce from the petitionee, was decreed alimony in the sum of three hundred dollars, payable in annual instalments of fifty dollars each. The petitionee failed to pay the first instalment when due, and upon a subsequent demand refused to make such payment. This petition is brought to procure the enforcement of the order by the punishment of the petitionee for contempt. The petition is demurred to.
The question for consideration is, whether the court is authorized to enforce the payment of permanent alimony by proceedings for contempt. It is by no means certain but that express authority for this course may be found in R. L. 2368; but the argument has proceeded upon the ground of implied authority, and as we consider the position taken by counsel for petitioner fully sustained by reason and precedent, we dispose of the question upon the ground which has been argued, without passing upon the exact effect and application of the section referred to.
The position of the petitionee is that there is no provision in the statute which authorizes the enforcement of a decree for the payment of permanent alimony by means of this process and that the court has no power beyond that expressly conferred by the statute. It is true that the jurisdiction of the county court in divorce proceedings is statutory, but this does not justify the conclusion that its power is limited by the letter of the statute. That the jurisdiction is not statutory in the strict sense contended for is apparent from the case of LeBarron v. LeBarron, 35 Vt. 365. We learn from the opinion in that case that before the passage of any statute authorizing the granting of temporary alimony, the supreme court, in which the divorce jurisdiction was then lodged, granted such alimony, on the ground that the power to do so grew out of the nature of the proceeding and was necessary to prevent a failure of justice. The case above named was a libel for annulment on the ground of impotence, and the court ordered a medical examination of the petitionee, although there was no provision in the statute authorizing it. It was urged upon the court that its jurisdiction was statutory, and that it had no power to require what the statute did not authorize. But the court considered that when the Legislature made impotence a ground for annulment it conferred the power necessary to ascertain the fact, and that the power was to be exercised in accordance with the practice of the English ecclesiastical courts so far as that practice was applicable to our circumstances and laws. In that case the court found in the established course of the ecclesiastical tribunals a practice which it thought consistent with our institutions, and so was enabled to give effect to the statute through methods of procedure derived from the English law. It is not claimed that any aid towards the enforcement of the order in this case can be obtained from that source. The former English practice of enforcing the payment of alimony by excommunication is not applicable, and the English statutes providing other methods of enforcement are too recent to be a part of our common law. But the right to make the statute effectual does not depend upon the finding of suitable process in the English law or practice. No further power is required than that incidentally conferred by the Legislature. In the absence of any other provision, the authority to make the order carries with it the power to enforce it. When the process employed for the enforcement of like orders by the ecclesiastical courts is inapplicable, the court will adopt such other adequate means of enforcement as may be justified by the general principles of civil procedure. 2 Bish. Mar. & Div. s. 498.
The position taken by counsel for petitionee leaves them nothing to suggest except that the decree is a judgment upon which suit may be brought; and it is said that a collection may thus be effected by the ordinary process of attachment and execution, and that if no property can then be found the judgment will still stand against the petitionee. If this means of redress is available, the inadequacy of the proceeding is too apparent to permit a belief that the Legislature intended to leave the suitor without other remedy. The libellee in a divorce suit may place his property beyond the reach of attachment. The property on account of which the alimony is decreed may be exempt from attachment. The jurisdictional limit may compel the libellant to sue in an inferior court, and after obtaining judgment she may be brought into the court where the decree was made, as an appellee. The suit, wherever brought, will be subject to such delays and contingencies as are possible in a proceeding of that character. Meanwhile the libellant must care for herself and children as best she may, while the libellee retains the money which the court has assigned for their support. But in view of the nature of the decree it may be questioned whether an action upon it can be maintained. Many of the reasons given in Nary v. Braley, 41 Vt. 180, why debt cannot be maintained upon an order for temporary alimony, are equally applicable to a decree for permanent alimony. Such a decree is not beyond recall, even as to a sum past due. It remains within the control of the court which made it. Its terms are subject to alteration from time to time upon the application of either party. The allowance may be reduced on account of the misconduct of one party or the financial misfortunes of the other. It is possible that a decree subject to modification in this manner cannot be treated as a judgment to be collected by suit. It has been held in Massachusetts that a decree for alimony made in that State cannot be collected by suit in the courts of that State. Allen v. Allen, ...
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