Bray v. Landergren

• Decision Date: 11 January 1934
• Citation: 172 S.E. 252
• Court: Virginia Supreme Court
• Parties: BRAY. v. LANDERGREN.

172 S.E. 252

BRAY.

v.LANDERGREN.

Supreme Court of Appeals of Virginia.

Jan. 11, 1934.

Error to Corporation Court of Alexandria.

Suit by Grace H. (Bray) Landergren against William Stephen Bray. Judgment for plaintiff, and defendant brings error.

Reversed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, J J.

Robert A. Ryland, of Clarendon, for plaintiff in error.

Jesse, Phillips & Klinge and Percy A. Crittenden, all of Clarendon, for defendant in error.

HOLT, Justice.

On August 22, 1929, Grace H. Gray, in the circuit court of Arlington county, instituted suit against her husband, Stephen Bray, a nonresident. The prayer of her bill was that she be granted an absolute divorce from her husband, alimony, costs of suit, including counsel fees, and the custody of their child. The bill charges that the defendant owned certain real estate in Arlington county, describes it and prays that allowances made be declared a lien upon it. There was personal service of process upon the defendant in the state of Utah, which service has the same effect as, and no other than, an order of publication duly executed. Code, § 6071. She also filed against said real estate a lis pendens.

There was no appearance and, on Febru-' ary 25, 1930, that court entered this order:

"It is therefore adjudged, ordered and decreed that the said Grace H. Bray and Wm. Stephen Bray be divorced from the bonds of matrimony which was created by the aforesaid marriage, and that said marriage be, and the same is hereby dissolved, but neither party hereto shall marry again within six months from the date of this decree; and the court doth adjudge, order and decree that, the said Wm. Stephen Bray shall pay to the said Grace H. Bray as permanent alimony, annually, so long as both the said Wm. Stephen Bray and Grace II. Bray shall live, the sum of $600 which shall be paid to the said Grace H. Bray, on the 1st day of May of each year; that the said Wm. Stephen Bray shall pay to Walter T. McCarthy, Counsel for Grace H. Bray, the sum of $100 within ten days from the date of this decree; that the care and custody of Elizabeth Bray, the infant child of the parties be awarded to the said Grace H. Bray, with whom she shall remain, the said Grace H. Bray, being a suitable and proper person to have the care and custody of the said Elizabeth Bray; and that the said Wm. Stephen Bray shall furnish the sum of $300 to the said Grace H. Bray, annually, for the maintenance, support and education of the said Elizabeth Bray, so long as the said Elizabeth Bray shall remain under the age of twenty-one years and unmarried; that the aforesaid payments of alimony and counsel fees shall be a charge upon said Lot No. 3S of Bradley's Subdivision of Woodmont; that this cause be and is hereby referred to J. H. Brewer, Jr., a Commissioner in Chancery for this court to ascertain and report to this court the liens binding on said Lot No. 38 of Bradley's Sub-division of Woodmont, and order of their priority. * * *"

Afterwards and on January 27, 1031, plaintiff, who had intermarried with one Landor-gren, brought this suit in said court to subject the real estate, in her original bill described, to the payment of this judgment. Process was by publication. On April 7, 1931, the cause was transferred to the corporation court of the city of Alexandria. On March 1, 1932, sale was ordered, presumably to pay plaintiff's claim, although the record is silent as to this. On June 1, 1932, Stephen Bray entered a special appearance in which he set out the fact that in the original suit no personal process was had upon him. and claimed that the court was without jurisdiction to enter said decree, that the judgment for alimony was void and asked that it be vacated, annulled, and stricken from the docket. On July 7, 1932, the court overruled his contentions, and that ruling is now before us on appeal.

Is this judgment for alimony which rests upon process executed out of the state upon a nonresident valid, and, if so, to what, extent is it valid?

This court has already defined alimony.

"Alimony is an allowance made to the wife out of the husband's estate or income upon a decree of separation." Latham v. Latham, 30 Grat. (71 Va.) 307.

How is it to be paid?

"The general rule undoubtedly is that the income of the husband, whether derived, or to be derived, from his personal exertions or from permanent property, or from both, is the fund from which alimony is decreed, and the amount, as already said, will depend upon the particular circumstances of each case." Oralle v. Cralle, 84 Va. 198, 6 S. E. 12, 14.

"Alimony is usually an allowance in money out of the husband's estate, but not the estate itself." Lovegrove v. Lovegrove, 128 Va. 449, 104 S. E. 804.

When it is said that the income is the fund from which alimony should be paid, nothing more is meant than that the decree is personal and should not undertake to set apart specific property for its satisfaction. It is a lien upon the husband's real estate for sums due and to be due and may be enforced as other liens are enforced. Isaacs v. Isaacs, 117 Va. 730, 86 S. E. 105, L. R. A. 1916B, 648.

The jurisdiction of our courts of equity in divorce cases is statutory. McGotter v. Carle, 149 Va. 584, 140 S. E. 670; Chandler v. Chandler, 132 Va. 418, 112 S. E. 856; Blank-enship v. Blankenship, 125 Va. 595, 100 S. E. 538, and in Code, § 5111, as amended by Acts 1927 (Ex. Sess.) c. S5, provisions are made for alimony, but they are not exclusive.

In this commonwealth, and indeed in most of the states, divorces at early dates were by act of the Legislature, but courts of equity, at a time when they had no general jurisdiction to grant them, asserted and exercised jurisdiction to decree alimony.

In 1730 jurisdiction to pronounce a sentence of divorce in cases of consanguinity and affinity were conferred upon the general court. 4 Hen. Stats. 245. After the Revolution in 1788 (12 Hen. Stats. 688), this power was transferred to the superior court of chancery and afterwards to the superior courts of law, and not until 1827 was it extended (Acts 1820. 1827, p. 21, c. 23. 1 Minor's Inst., p. 269).

In 1810, Ann Purcell, who was living apart from her husband, brought an independent suit for alimony. Purcell v. Purcell, 4 Hen. & M. (14 Va.) 507. The jurisdiction of the court was challenged.

The chancellor said:

"If the jurisdiction of this court were now to be settled upon English precedents, there might be some doubt about the question, from the cases, as brought into one view, by Mr. Fonblanque; but I shall leave this clashing of English Judges to be reconciled among themselves, and take up the question upon first principles.

"I hold, that in every well regulated government there must somewhere exist a power of affording a remedy where the law affords none; and this peculiarly belongs to a Court of Equity; and as husband and wife are considered as one person in law, it is evident, that in this case the law can afford no remedy; which is universally admitted to be a sufficient ground to give this Court jurisdiction; and therefore it must entertain the bill, if there be sufficient proof of the marriage."

It will be observed that jurisdiction was here taken because law afforded no other relief. Another appealing reason is sometimes assigned.

"Although the power to grant divorces had become identified with the legislative power as the result of long usage, the determination of the legal consequences flowing therefrom was so bound up with the property rights of the parties and so essentially judicial in its nature, that the courts were loath to allow the legislature to assume the same Consequently, although courts of chancery would not assume jurisdiction over divorce in the absence of direct authorization, they nevertheless held that their general equity jurisdiction must be deemed to include the right to award alimony in a proper case, inasmuch as the ecclesiastical courts, to which such jurisdiction rightfully belonged at common law, had never constituted a part of our judicial system. Their conclusion was further strengthened by the fact that in England, during the commonwealth, the ecclesiastical courts were abolished, and in consequence thereof their entire jurisdiction in cases ofalimony and of separate maintenance devolved, as a matter of course and necessity, upon the court of chancery as the only tribunal fitted and competent to decide thereon." 1 R. C. L., p. 876.

"Alimony had its origin in the legal obligation of the husband, Incident to the marriage state, to maintain his wife in a manner suited to his means and social position. * * * " Harris v. Harris, 31 Grat. (72 Va.) 13.

"But the power of courts of equity to decree alimony did not originate in any statute. It is a power inherent in them. Stewart v. Stewart, 27 W. Va. 167, 172, 173, and cases cited; Carr v. Carr, 22 Grat. (63 Va.) 16S, and notes. It had its origin in the legal obligation of the husband, incident to the marriage state, to maintain his wife in a manner suited to his means and social position. Harris v. Harris, 31 Grat. (72 Va.) 17." Reynolds v. Reynolds, 68 W. Va. 15, 69 S. E. 381, 385, Ann. Cas. 1912A, 889.

"Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction." Audubon v. Shufeldt, 181 U. S. 575, 21 S. Ct 735, 736, 45 L. Ed. 1009.

The right to an independent action is now generally recognized. " * * * In a very decided majority of the states it is now the settled rule that the jurisdiction of the equity courts to award alimony is not merely incidental to suits for divorce or separation, but is inherent, and that alimony may be awarded in an independent suit therefor." 1 R. C. L., p. 879.

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