Fournier v. Clutton

• Citation: 109 N.W. 425,146 Mich. 298
• Parties: FOURNIER et al. v. CLUTTON et al.
• Decision Date: 07 November 1906
• Court: Supreme Court of Michigan

146 Mich. 298
109 N.W. 425

FOURNIER et al.
v.
CLUTTON et al.

Supreme Court of Michigan.

Nov. 7, 1906.

Appeal from Circuit Court, Wayne County, in Chancery; Flavius L. Brooke, Judge.

Suit by Frances L. Fournier and others against Jonathan L. Clutton and others. From a judgment in favor of defendants, complainants appeal. Reversed.

Argued before CARPENTER, C. J., and McALVAY, GRANT, BLAIR, and MOORE, JJ.

[109 N.W. 426]

Edward S. Grece, for appellants.

Jeffries & Williams, for appellees.

CARPENTER, C. J.

Complainant Frances L. Fournier is the divorced wife of Charles A. Fitzsimmons. The other complainants are the children of Frances L. Fournier and Charles A. Fitzsimmons. Charles and Frances were divorced May 10, 1895. By this decree it was ‘ordered and decreed that the defendant (Charles A. Fitzsimmons) pay to the complainant (Frances L. Fournier) the sum of $1,000 together with the costs to be taxed in said cause, the same being in full of all rights, claims, and demands of the said complainant upon the said defendant for permanent alimony. * * * It is further ordered that the complainant have the care, custody, and education of the children, the issue of said marriage, until the further order of this court.’ On the 27th day of May, 1897, complainant sold, assigned, and transferred said decree to the first-named defendant for the sum of $200. The object of this suit is to set aside said assignment on the ground that a decree for alimony is not assignable. The trial court dismissed said bill. Complainants appeal.

The briefs of counsel and my own research have enabled me to find but two cases touching the question of the assignability of decrees for alimony, viz., In re Robinson, L. R. 27 Chan. Div. 160, and Kempster v. Evans, 81 Wis. 247, 51 N. W. 327,15 L. R. A. 391. Each of these cases hold that such a decree is not assignable. In each of them the alimony assigned was an annuity not yet due. While the circumstance distinguishes these decisions from the case at bar, it cannot be said that the reasoning upon which they rest is altogether inapplicable to this case. The ground of the decision in Re Robinson is found in these words quoted from the opinion: ‘The very nature of alimony is inconsistent with its being capable of assignment. We are familiar with instances of allowances which are not alienable in the case of men, such as the half pay of the officers in the army and navy, which are given them in order that they may maintain themselves in a sufficient...