McFarlane v. McFarlane, Motion No. 430.

• Decision Date: 02 September 1941
• Docket Number: Motion No. 430.
• Citation: 298 Mich. 595,299 N.W. 728
• Parties: McFARLANE v. McFARLANE.
• Court: Michigan Supreme Court

298 Mich. 595

299 N.W. 728

McFARLANE

v.McFARLANE.

Motion No. 430.

Supreme Court of Michigan.

Sept. 2, 1941.

Action by Ethel McFarlane against Walter Glen McFarlane to recover a sum awarded in a divorce proceeding. Summary judgment was entered for the plaintiff who thereafter caused several writs of granishment to be issued on the judgment, and the defendant filed a motion for an order permanently staying the issuance of any writs of garnishment or execution or other proceeding to collect the judgment on ground that the debt was discharged in bankruptcy. From an order denying the motion, defendant appeals in the nature of mandamus and asks for an order staying further proceedings to collect the judgment.

Order denying the motion set aside and motion granted.

See, also, 294 Mich. 648, 293 N.W. 895.Appeal from Circuit Court, Wayne County; James E. Chenot, judge.

Argued before the Entire Bench.

Charles Bowles, of Detroit, for appellant.

Charles O. Crain, of Detroit, for appellee.

BOYLES, Justice.

In 1929, the plaintiff herein was granted a decree of divorce from defendant. The decree contained the following provisions:

‘And it is further ordered, adjudged and decreed that the plaintiff shall be paid by the defendant the sum of $1565, to be paid to her through the Friend of the Court at the rate of ten dollars per week until the whole sum of $1565 has been paid, and that the question of further and additional permanent alimony is hereby expressly reserved by this court for determination after the payment of the $1565 as aforesaid.

‘And it is further ordered, adjudged and decreed that the provision herein made for the plaintiff Ethel McFarlane is in lieu of her dower in the property of the defendant, Glen D. McFarlane, and in full satisfaction of all claims that the said Ethel McFarlane may now or hereafter have in any property which the said Glen D. McFarlane owners or may hereafter own, or in which he may have any interest.’

In 1938, plaintiff brought suit against the defendant in the circuit court for Wayne county for the above $1,565, together with interest. In that case, the plaintiff declared on the common counts, with an added count based on the decree, claiming nonpayment and asking for judgment. Plaintiff filed a motion for summary judgment on the expressed ground that the suit was based ‘upon a money decree heretofore entered’ in the divorce case, and the affidavit in support of the motion set up the same claim. A summary judgment was entered for the plaintiff in the sum of $2,092. Thereafter, the defendant filed a petition in bankruptcy in the district court of the United States for the eastern district of Michigan, southern division, in which proceeding defendant scheduled the above judgment. In February, 1940, defendant was duly discharged in bankruptcy ‘from all debts and claims which are made provable by said act against his estate, except such debts as are, by said act, excepted from the operation of a discharge in bankruptcy.’

While the bankruptcy proceeding was pending, and also subsequent to the discharge, the plaintiff caused several writs of garnishment to be issued on the above judgment, claiming that it was not a debt dischargeable in bankruptcy. The defendant filed a motion in the case asking the circuit court for an order permanently staying the issuance of any writs of garnishment or execution or other proceeding to collect the judgment. After hearing, an order was entered denying the motion, and defendant now seeks reversal of this order by appeal in the nature of mandamus, and asks for an order staying further proceedings to collect the judgment. Defendant claims his discharge in bankruptcy cancels the judgment.

The only question for consideration is, whether the decree provides for payment of alimony, or is a decree for payment of money in lieu of dower and in satisfaction of property rights. If it is a decree for alimony, plaintiff's remedy should have been by contempt proceedings before the court where the decree was entered instead of by bringing suit to obtain the judgment. It lies within the jurisdiction of the court in chancery to modify or enforce its decrees for alimony. On the contrary, a decree which provides for payment of money in lieu of dower or other rights in property cannot be enforced in a court of equity, or modified or...