German v. German

• Decision Date: 06 November 1936
• Citation: 188 A. 429,122 Conn. 155
• Court: Connecticut Supreme Court
• Parties: GERMAN v. GERMAN.

188 A. 429

122 Conn. 155

GERMAN v. GERMAN.

Supreme Court of Errors of Connecticut.

November 6, 1936

Appeal from Superior Court, Fairfield County; Newell Jennings Judge.

Action by Lillian M. German against John W. German asking the enforcement of the alimony provisions of a New York divorce decree, brought to the superior court in Fairfield county where a demurrer to the complaint was sustained, and the plaintiff failing to plead further, judgment was rendered for the defendant, from which the plaintiff appealed.

Sidney Vogel and Margaret Sigsway, both of South Norwalk, for appellant.

Herbert B. Wanderer, of Bethel, for appellee.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN JJ.

MALTBIE, Chief Justice.

The writ in this action describes the plaintiff as a resident of the city of New York and the defendant as a resident of Redding in this state. The complaint and the exhibits attached thereto state the following situation: On October 20, 1916, the plaintiff obtained a decree of divorce in the Supreme Court of New York. In that decree it was provided that the defendant should pay the plaintiff $20 each week until she remarried, for her support and the support and maintenance of the children of the marriage, and the decree incorporated an agreement which had been entered into between the plaintiff and defendant settling their property rights and providing for weekly payments in the event that a divorce should be granted. By the provisions of this agreement the defendant was to pay the plaintiff $20 a week should the divorce be granted, in full discharge and satisfaction of all liability of the defendant for her support and maintenance, this provision to become a part of the decree for divorce, and, further, that the payment of these sums should not prevent the plaintiff from engaging in any occupation, but that it should be an absolute obligation on the defendant's part so long as she remained unmarried.

The plaintiff has not married since the rendering of the decree. The defendant has not paid the weekly sums provided since December 26, 1931, and is in arrears to the amount of $4,380. He is a man of large means, well able to pay his obligations, but having his property so concealed as to put it beyond the reach of legal process. The plaintiff claimed as relief that the decree of the Supreme Court of New York be made the judgment and decree of the Superior Court; that the defendant be required to pay the plaintiff the amount of alimony alleged to be in arrears, and, further, to pay the weekly sums decreed from the date of the complaint until the plaintiff should die or remarry; that the defendant be required specifically to perform the terms of the agreement incorporated in the decree; and such further relief as the court might deem proper. The defendant filed a demurrer to the prayers for relief, the substance of which was that no judgment might be entered in the case other than an ordinary judgment at law for the amount of the alimony in arrears, and further, that the judgment in New York State might be altered, modified, or annulled by its courts and therefore was not entitled to enforcement in the courts of this state.

Where in a decree of divorce alimony is awarded, the provision for alimony, in so far as the award is no longer within the power of the court which rendered the decree to rescind or alter and the right to receive the payments has become vested and absolute, falls within section 1 of article 4 of the United States Constitution, which requires each state to give full faith and credit to the judicial proceedings of every other state. Sistare v. Sistare, 218 U.S. 1, 16, 30 S.Ct. 682, 54 L.Ed. 905, 28 L.R.A.(N.S.) 1068, 20 Ann.Cas. 1061. The constitutional provision, however, only requires that the courts of a state other than that in which the decree is rendered shall give effect to it by the ordinary remedies appropriate to an action upon a judgment; that court is not required to apply any special remedies provided by the laws of the state in which the decree was rendered, nor any such remedies provided by its own laws to enforce similar decrees made by its courts. Lynde v. Lynde, 181 U.S. 183, 187, 21 S.Ct. 555, 45 L.Ed. 810; Sistare v. Sistare, supra, 218 U.S. 1, at page 26, 30 S.Ct. 682, 54 L.Ed. 905, 28 L.R.A.(N.S.) 1068, 20 Ann.Cas. 1061; Grant v. Grant, 64 App.D.C. 146, 75 F.(2d) 665; Weidman v. Weidman, 274 Mass. 118, 124, 174 N.E. 206, 76 A.L.R. 1359. Whether the court in which the enforcement of the decree is sought will apply equitable remedies depends upon the principles of jurisprudence in effect in that state. Courts have answered differently the question whether remedies other than those for a recovery of damages at law may be applied in aid of such a judgment. That they will be applied was decided in Fanchier v. Gammill, 148 Miss. 723, 114 So. 813; Mallette v. Scheerer, 164 Wis. 415, 419, 160 N.W. 182; Ostrander v. Ostrander, 190 Minn. 547, 252 N.W. 449; Shibley v. Shibley, 181 Wash. 166, 170, 42 P.2d 446; Cummings v. Cummings, 97 Cal.App. 144, 151, 275 P. 245; Creager v. Superior Court, 126 Cal.App. 280, 14 P.2d 552; and see Matson v. Matson, 186 Iowa, 607, 618, 173 N.W. 127. On the other hand, such relief has been held to be improper in Weidman v. Weidman, 274 Mass. 118, 174 N.E. 206, 76 A.L.R. 1359; Lynde v. Lynde, 162 N.Y. 405, 418, 56 N.E. 979, 48 L.R.A. 679, 76 Am.St.Rep. 332; Bennett v. Bennett, 63 N.J.Eq. 306, 49 A. 501; Mayer v. Mayer, 154 Mich. 386, 117 N.W. 890, 19 L.R.A. (N.S.) 245, 129 Am.St.Rep. 477; Davis v. Davis, 29 App.D.C. 258, 9 L.R.A.(N.S.) 1071; Grant v. Grant, 64 App.D.C. 146, 75 F.(2d) 665; and see Kossower v. Kossower (N.J.Err. & App.) 142 A. 30. See note, 97 A.L.R. 1197.

Those cases which upheld a resort to equitable remedies for the most part proceed upon the broad ground that a decree for alimony, in the enforcement of the obligation of a husband divorced for his fault to continue to support his former wife, imposes a peculiar obligation which the husband ought not to be permitted to avoid by the mere fact that he has moved from the state where the decree was rendered into another. In Lyon v. Lyon, 21 Conn. 185, 196, we stated the underlying principle which must govern us as follows: " In carrying their decisions into execution, courts will adopt those processes which are established by precedent, and have thus received the sanction of law, where they are adequate for the purpose, but where they are not, would feel authorized and bound to devise other modes, which should be effectual to that end, being careful, however, not to exceed [their] constitutional and legal authority." It is true that the nature of an award of alimony is such that the state itself has a social, and if the wife be a resident in it, a financial interest in the performance of his duty by the divorced husband. Wright v. Wright, 93 Conn. 296, 300, 105 A. 684. But we would hesitate to hold that this fact afforded sufficient ground in itself to justify the extension of equitable remedies in aid of a judgment for damages, in the absence of circumstances bringing the situation within some recognized principle of equitable jurisprudence.

On the other hand, the decisions which deny that such remedies may be applied are expressly or impliedly grounded on the proposition that an action upon a judgment awarding alimony is by its nature one for the recovery of a debt, only cognizable at law, that an action for damages constitutes a full and adequate remedy, and that, as divorce, with its incident of alimony, is wholly a creature of statute, the provisions of the statutes authorizing enforcement by contempt or like proceedings apply only to decrees rendered in the courts of the state where the action is brought and are not available to enforce a like decree rendered in another state. If we admit the premise, that the only proper action to enforce such a decree is one at law for damages, the conclusion to which these courts have come is logical; but we disagree with that premise. In New York State as with us, divorce, with its incident of alimony, is a creature of statute. Ackerman v. Ackerman, 200 N.Y. 72, 76, 93 N.E. 192; Cary v. Cary, 112 Conn. 256, 258, 152 A. 302. It does not, however, follow that an action for divorce is one at law. The Legislature can create equitable rights and provide equitable remedies as well as it can those cognizable in the law courts. Obviously the relief given in a divorce action is not such as could be granted in a common-law court, but is essentially equitable in its nature.

That is peculiarly true in this jurisdiction, where a decree for alimony in its earliest form consisted of an assignment of specific property; Lyon v. Lyon, supra, 21 Conn 185, at page 197; and the fact that, by judicial construction, it came to be held that, in lieu of such assignment, a sum of money might be awarded, and later, by legislative action, an order for periodic payments was authorized, does not change the nature of the award. Sanford v. Sanford, 5 Day, 353, 357; Benedict v. Benedict, 58 Conn. 326, 20 A. 428; Cary v. Cary, 112 Conn. 256, 259, 152 A. 302. In Lyon v. Lyon, supra, the nature of an award of alimony in the form of money is discussed, and while we held that it was not necessary to determine whether the action was one in equity, a decree for alimony was stated to be " analogous to those decrees of courts of equity, which enjoin specifically, or prohibit, the performance of particular acts," and that proceedings to enforce such a decree by contempt were proper, even though there was not then, as there is not now, any statutory authority in this state for such proceedings, and hence they were necessarily referable to the inherent power of a court to...