Merriman v. Hawbaker

• Decision Date: 02 January 1934
• Docket Number: No. 620.,620.
• Parties: MERRIMAN v. HAWBAKER et al.
• Court: U.S. District Court — Eastern District of Illinois

5 F. Supp. 432

MERRIMAN v. HAWBAKER et al.

No. 620.

District Court, E. D. Illinois.

January 2, 1934.

W. A. Doss, of Monticello, Ill., for plaintiff.

E. J. Hawbaker and R. P. Shonkwiler, both of Monticello, Ill., for defendants.

LINDLEY, District Judge.

This is a bill filed on December 30, 1933, against the wife of the plaintiff, her two solicitors, E. J. Hawbaker and R. P. Shonkwiler, and the judge of the circuit court of Piatt county, seeking to enjoin each of them from the enforcement of an order of the said circuit court entered on the 18th day of December, 1933, in a divorce proceeding brought by the present plaintiff against his wife, Nelle P. Merriman. In that order the judge allowed to Mrs. Merriman for her solicitors' fees in the divorce suit, the sum of $225, subject to a credit of $50 previously paid, and directed payment of the balance of $175 within a certain time.

It appears from the bill that after plaintiff had sued his wife for divorce, on October 11, 1933, he filed his voluntary petition in bankruptcy in this court and was thereupon adjudicated bankrupt and that, though the order making an allowance to his wife for solicitors' fees was entered subsequent to the commencement of the bankruptcy proceeding, it was based upon services rendered the wife before that time. The question submitted to the court then, is this: "Is an allowance to a party in a divorce suit for solicitors' fees within the meaning of the word alimony or of such character as to make it a non-dischargeable debt?" If the answer is in the affirmative, the application for injunction must be denied and the bill dismissed for want of equity. If the answer is in the negative, there should be a decree for a permanent injunction.

Alimony, a word derived from the Latin term alere, meaning to nourish or sustain, commonly means in law all allowances, whether partial or in gross, which a husband by order of court, in pursuance of his common-law or statutory duty to support his wife pays her for her maintenance while they are separated or divorced. Alimony pendente lite ordinarily includes a reasonable allowance for prosecution of the wife's suit or in defense of that of her husband. The subject-matter is fully covered by a statute in Illinois (Smith-Hurd Rev. St. Ill. 1933, c. 40, § 16, Cahill's Rev. St. Ill. c. 40, par. 16) containing inter alia re the following provisions:

"In all cases of divorce the court at any time after service of summons and proper notice to the husband or wife may require the husband to pay to the wife or pay into court for her use or may require the wife to pay to the husband or pay into the court for his use during the pendency of the suit such sum or sums of money as may enable her or him to maintain or defend the suit; and in every suit for a divorce the wife or the husband, when it is just and equitable, shall be entitled to alimony during the pendency of the suit. * * * The court may, however, in its discretion reserve the question of the allowance of attorney's fees and suit money until the final hearing of the case and may then make such order with reference thereto as may seem just and equitable regardless of the disposition of the case. * * * Whoever wilfully refuses to comply with the court's order to pay alimony during the pendency of the suit or attorney's fees and suit money, may be declared by the court in contempt of the court and punished therefor."

It is said that alimony cannot be regarded as a debt owing from a husband to wife, Barclay v. Barclay, 184 Ill. 375, 56 N. E. 636, 51 L. R. A. 351; but that it is rather to be considered as a penalty imposed for the failure to perform a duty, Wetmore v. Markoe, 196 U. S. 74, 25 S. Ct. 172, 49 L. Ed. 390, 2 Ann. Cas. 265; Romaine v. Chauncey, 129 N. Y. 566, 29 N. E. 826, 14 L. R. A. 712, 26 Am. St. Rep. 544. And a discharge in bankruptcy does not bar the collection of alimony and an allowance for the support of minor children, Dunbar v. Dunbar, 190 U. S. 340, 23 S. Ct. 757, 47 L. Ed. 1084; Wetmore v. Markoe, 196 U. S. 68, 25 S. Ct. 172, 49 L. Ed. 390, 2 Ann. Cas. 265; Deen v. Bloomer, 191 Ill. 416, 61 N. E. 131. In 1903, section 17 of the Bankruptcy Act, governing discharge, was amended to prevent discharge of "liabilities for * * * alimony due or to become due, or for maintenance or support of wife or child," etc. 11 USCA § 35.

Although judgments are, by statute, liens on the defendant's real estate, a decree for alimony payable by installments does not create a lien unless the record affirmatively shows that the court so intended, Scott v. Scott, 80 Kan. 489, 103 P. 1005, 25 L. R. A. (N. S.) 132, 133 Am. St. Rep. 217, 18 Ann. Cas. 564, and note. In the absence of a statute there is no lien, Kerr v. Kerr, 216 Pa. 641, 66 A. 107, 9 Ann. Cas. 89; Swansen v. Swansen, 12 Neb. 210, 10 N. W. 713; Campbell v. Trosper, 108 Ky. 602, 57 S. W. 245; Masters v. Masters, 249 Ill. App. 252.

The Supreme Court of Illinois has in Stillman v. Stillman, 99 Ill. 196, 39 Am. Rep. 21, defined "alimony" as follows:

"Alimony is that allowance which is made to a woman on a decree of divorce for her support out of the estate of her husband. At common law it was usually settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case....