Belting v. Marschner
| Citation | 222 N.W. 137,245 Mich. 111 |
| Decision Date | 04 December 1928 |
| Docket Number | Motion No. 399. |
| Parties | BELTING v. MARSCHNER, Circuit Judge. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Mandamus by Peggy Alfredia Belting against Hon. Adolph F. Marschner, Wayne Circuit Judge, to compel respondent to set aside its order dismissing contempt proceedings. Writ denied.
Argued before the Entire Bench.
J. Paul Wait, of Sturgis, for relator.
Hoffman & Miller, of Detroit, for respondent.
On July 28, 1924, Roy O'Keeffe, had pro confesso decree of divorce from plaintiff herein. The decree provided:
‘It is further ordered, adjudged and decreed, that the plaintiff, Roy O'Keeffe, shall pay to the defendant Peggy Alfredia O'Keeffe, the sum of fifteen hundred ($1500) dollars, said sum to be paid at the rate of one hundred twenty-five ($125) dollars per month beginning on the 15th day of August, A. D. 1924, which sum shall be in lieu of her dower or dower interest in and to any property now owned by the said Roy O'Keeffe, or which he shall hereafter acquire, and shall be in full satisfaction of all claims that the said defendant may have in and to any property now owned by the said Roy O'Keeffe, or which he may hereafter acquire, and shall be in full satisfaction of any claims the said defendant, Peggy Alfredia O'Keeffe, may hereafter have under and by virtue of the statutes of the state of Michigan.’
This provision was made in pursuance of a property settlement between the parties. O'Keeffe still owes $880 of the award. On November 29, 1927, plaintiff commenced proceedings against him for contempt in not paying the sum due. On return of order to show cause, the court dismissed the order on the ground that the provision in the decree was not for payment of alimony, but was in lieu of dower rights. This action is mandamus to compel the court to set aside its order of dismissal.
The statute requires every decree of of divorce to make provision in lieu of dower, 3 Comp. Laws 1915, § 11436. An order of court for payment of alimony, either permanent or temporary, is enforceable by proceedings for contempt, 3 Comp. Laws 1915, § 12268 (5). Other orders for payment of money are not so enforceable unless by law execution for collection cannot be awarded. Comp. Laws 1915, § 12268 (5); Carnahan v. Carnahan, 143 Mich. 390, 107 N. W. 73,114 Am. St. Rep. 660,8 Ann. Cas. 53;Jones v. Wayne Circuit Judge, 236 Mich. 313, 210 N. W. 319. Decrees of a court of chancery may be enforced by execution. 3 Comp. Laws 1915, § 12965.
[2] Alimony is ‘the substitute for the common-law right of marital support.’ West v. West, 241 Mich. 679, 217 N. W. 924. Permanent alimony has been defined as a provision for the support and maintenance of a wife out of her husband's estate during her lifetime, ordered by a court on decreeing a divorce. It is essentially a different thing from a division of property. Mesler v. Jackson Circuit Judge, 188 Mich. 195, 154 N. W. 63. It is also different from an award in lieu of dower. Thus the court has power to revise and alter the amount of alimony allowed in a decree. Comp. Laws 1915, § 11417. But a provision in lieu of dower or on a property settlement is final, and cannot be modified or altered except, of course, for fraud or other cause upon which any other final decree may be reviewed. Kutchai v. Kutchai, 233 Mich. 569, 207 N. W. 818. A final decree for general payment of money is a debt; for payment of alimony it is not. Toth v. Toth, 242 Mich. 23, 217 N. W. 913.
In Mesler v. Jackson Circuit Judge, supra, relied on by plaintiff, the wife obtained the decree....
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