In re Nowell

• Decision Date: 02 March 1900
• Docket Number: 2,355.
• Citation: 99 F. 931
• Parties: In re NOWELL.
• Court: U.S. District Court — District of Massachusetts

99 F. 931

In re NOWELL.

No. 2,355.

United States District Court, D. Massachusetts.

March 2, 1900

Elihu G. Loomis, for petitioner.

Felix Rackemann and H. M. Davis, for respondent.

LOWELL District Judge.

The bankrupt here seeks an injunction to restrain his wife from prosecuting in the state court contempt proceedings against him to obtain alimony granted her by a decree of that court. This court has therefore to determine the effect of bankruptcy upon alimony. If a discharge in bankruptcy will bar the wife's claim for alimony, she may be enjoined from seeking to collect it by contempt proceedings or otherwise.

Section 17 of the bankrupt from all his provable debts, with certain inapplicable exceptions. This court has here to consider therefore, if alimony be a provable debt. Section 63 defines those debts which may be proved. The only clause in the section supposed to be applicable to alimony is the first 'A fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition. ' The nature of alimony is not precisely the same in all jurisdictions, and this case is concerned only with alimony allowed by virtue of the laws of Massachusetts. I have to determine, therefore, if the alimony decreed by a Massachusetts court is a fixed liability absolutely owing at the time of the filing of the petition.

In this commonwealth, the law of alimony has developed considerably during the past century and a half. According to the decisions and to the existing statutes, alimony appears now to be an allowance made by the decree of a competent court for the benefit of a wife. In a sense, this decree fixes the amount to be paid during the joint lives of husband and wife; but not only is the decree always open to modification in respect of future alimony by reason of a change in the situation of husband or wife, but also, if the wife seeks legal process to collect the arrears which have not been paid to her according to the decree, that process will not issue as of right or without notice to the husband. Upon an order of notice to the husband to show cause why process should not issue, he may, without modification of the original decree, move that the amount to be collected by the process be reduced, by reason of a change in his circumstances or in those of his wife. The process granted may be execution, scire facias, or an attachment for contempt. When any process is once issued, it is ordinarily governed by the rules applicable to the same process when issued in other cases. Alimony may be secured by attachment, and this attachment will extend to secure future installments, as these become due. It may be allowed in a lump sum, instead of by way of monthly, quarterly, or yearly payments. A domestic decree for alimony cannot be enforced in Massachusetts by an independent action of contract, but only by the court which decreed the alimony. Arrears due at the husband's death can be recovered from his estate, but are not an absolute debt, and may be modified on motion of the executor. Alimony is sometimes called a debt, and is sometimes said not to be a debt. Plainly, it has some analogy to a debt, yet differs therefrom in important respects. Pub. St. c. 146, especially sections 11-18, 36-40; Orrok v. Orrok, 1 Mass. 340; West v. West, 2 Mass. 223; French v. French, 4 Mass. 587; Bursler v. Bursler, 5 Pick. 427; Morton v. Morton, 4 Cush. 518; Shannon v. Shannon, 2 Gray, 285; Livermore v. Boutelle, 11 Gray, 217; Chase v. Ingalls, 97 Mass. 524; Allen v. Allen, 100 Mass. 373; Slade v. Slade, 106 Mass. 499; Burrows v. Purple, 107 Mass. 428; Foster v. Foster, 130 Mass. 189; Knapp v. Knapp, 134 Mass. 353; Downs v. Flanders, 150 Mass. 92, 22 N.E. 585; Southworth v. Treadwell, 168 Mass. 511, 47 N.E. 93. In the development of the law, the court and the legislature have not been disposed to abolish the anomalies connected with alimony, but rather the reverse. For instance, it was at one time held that debt would lie to collect alimony (Howard v. Howard, 15 Mass. 196); but this case was overruled long afterwards (Allen v. Allen, 100 Mass. 373). When, however, a particular remedy has been granted to recover alimony, there is a tendency to permit its operation as when granted in other cases. No reported decision in Massachusetts has been found by counsel or by the court concerning the effect of insolvency and a discharge therein upon alimony, past or future; but I am informed that by some judges of the state courts of insolvency arrears of alimony have been held not to constitute a debt provable in insolvency.

Is a claim for arrears of alimony, which has been decreed by a court of Massachusetts, released by a discharge in bankruptcy? As has been said, these arrears are not, prior to the issue of an execution to collect them, a fixed liability, absolutely owing; for the amount of the liability may be modified by the court which has decreed the alimony and issues the execution. Even arrears of alimony, therefore, are not a provable debt, within the letter of the present bankrupt law, and, upon the whole, the decisions concerning alimony and bankrupt laws in general hold alimony not to be provable.

In Kerr v. Kerr (1897) 2 Q.B. 439, it was held, by two able judges against the dissent of one, that arrears of alimony were not a provable debt, under the present English bankrupt act. The dissent was founded altogether upon the case of Hardy v. Fothergill, 13 App.Cas. 351, which permitted the proof of contingent debts, under the English bankrupt act, to an extent outside the utmost possibility of the construction of the present bankrupt act of the United States. No judge treated arrears of alimony as a fixed liability. The analogy of the English law is therefore strongly against the contention of the bankrupt in this case.

In Re Cotton, Fed.Cas.No. 3,269, it was held that a payment ordered by a state court to be made for the maintenance of a bastard child was not provable under the bankrupt act of 1841; and a similar decision was reached by the supreme court of Ohio in Hawes v. Cooksey, 13 Ohio, 242. The act of 1841 permitted the proof of 'debts,' which, as applied to alimony, does not seem a more restricted term than that of the present...