Crews v. Mooney

• Decision Date: 31 October 1881
• Citation: 74 Mo. 26
• Parties: CREWS v. MOONEY, Appellant.
• Court: Missouri Supreme Court

74 Mo. 26

CREWS

v.MOONEY, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Barry Circuit Court.--HON. W. F. GEIGER, Judge.

AFFIRMED.

Norman Gibbs and L. C. Krauthoff for appellant.

The statute prescribes the manner of enforcing the payment of alimony by security, and provides that when it is in gross the judgment shall be a general lien on the realty of defendant; (R. S. 1879, §§ 2179, 2180;) and no court has power to render any other or different judgment, or to provide or authorize any other mode of enforcing payment of alimony. The Audrain circuit court had no jurisdiction to decree to the plaintiff the title to specific personal property as alimony in her divorce suit against the defendant. To this extent the decree was void. Maguire v. Maguire, 7 Dana 181, 182, 189; Crain v. Cavana, 62 Barb. 109. The right of the wife to alimony is a personal claim on the husband, and she has no lien on any specific property therefor. The court has no more power to assign to her specific property at her suit, than it has to do so in an action by an unsecured creditor. 2 Bish. Mar. and Div., (6 Ed.) § 427; Almond v. Almond, 4 Rand. 662, 668; Russell v. Russell, 4 Greene (Iowa) 26, 29; Phelan v. Phelan, 12 Fla. 449, 456; Calame v. Calame, 25 N. J. Eq. (10 C. E. Green) 548. Even if the decree in divorce gave the respondent the right to the property in controversy, still she must then have sought the possession thereof through a writ from the Audrain court, and not have made the decree the basis of a new action in another court of the State. Each circuit court has the power to enforce all of its own valid decrees within the State.

Forrist for respondent.

SHERWOOD, C. J.

Mary B. Mooney, now Crews, brought replevin against defendant, her former husband, for certain articles of personal property: a piano, sewing machine, pony, etc., which were decreed to her by the Audrain circuit court, as alimony in gross, in a suit for divorce brought by the wife against her then husband, in which suit a final decree was rendered, both parties being present in person and by attorney. Such final decree also gave to the wife the care and custody of her infant child, and ordered that the defendant pay to the plaintiff $120 annually, for the support and maintenance of such child. Plaintiff, in her own behalf, testified that she was the owner of the property sued for by virtue of the decree aforesaid; that it had been rendered on a compromise or agreement between the respective attorneys of defendant and plaintiff; that prior to the commencement of this action demand had been made of defendant for the property. At the time of the entry of the decree and of the demand made, the property was in Barry county, Missouri. The defendant also testified that he consented to the decree as rendered.

Our statute respecting divorce provides that “where a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as, from the circumstances of the parties and the nature of the case, shall be reasonable.” 1 R. S. 1879, § 2179. And the next succeeding section provides that “upon a decree of divorce in favor of the wife, the court may, in its discretion, decree alimony in gross or from year to year,” and this section further declares that “when alimony is decreed in gross, such decree shall be a general lien on the realty of the party against whom the decree may be rendered, as in the case of other judgments.”

I.

The jurisdiction of the Audrain circuit court to render a decree in the premises, divorcing the parties, is unquestioned. The only portion of the decree questioned is that which gives plaintiff alimony in gross in and of the personal property aforesaid. And the question arising upon this record is: Did the Audrain circuit court by that decree vest in the plaintiff the title of such personal property? If it did, she can maintain this action-- otherwise not.

Alimony is said to be: An allowance made to a wife out of her husband's estate or income for her support, upon her divorce or separation from him, or during a suit for the same. 2 Bishop Mar. and Div., § 427. The usual signification of the term alimony, in the English books, is a sum or portion allotted to the wife for her maintenance, from year to year, either during a matrimonial suit or upon a divorce. 1 Black. Com., 441. “It is not, under the unwritten law, a gross sum, or a specific part of the husband's estate, transferred to the wife in specie; but it is a continuous allotment of sums payable at regular periods for her support from year to year.” 2 Bishop Mar. and Div., § 427. And it has been held that: “The court cannot decree to the wife as alimony a gross sum, an absolute title in specific property, or a sale of a part of the husband's estate for her use.” Ib.

But however correct the above definitions and remarks may be when applied to divorces at common law, so many changes have been wrought by statutes of the different states, that we must look to the statute law of each state in order to determine the exact status and rights of parties litigant in matrimonial suits. By reason of statutory enactment alimony has come to possess a broader signification that it once had. In Illinois, the 6th section of whose divorce law is substantially like section 2179, supra, it was held that as the statute authorized the court to “make such an order for the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as from the circumstances of the parties, and the nature of the case, shall be fit, reasonable and just;” that by virtue of the statutory power thus bestowed, a gross sum amounting to one-fourth of the husband's estate having been allowed and allotted to the wife, as her sole and separate property, as her alimony, and in lieu of other payments, such allowance was in full discharge and satisfaction of all claims for future support of the wife. Plaster v. Plaster, ...