Petrie v. Petrie, Docket No. 11980

• Decision Date: 26 May 1972
• Docket Number: Docket No. 11980,No. 1,1
• Citation: 41 Mich.App. 80,199 N.W.2d 673
• Parties: Nancie Hug PETRIE, Plaintiff-Appellee, v. Peter Lee PETRIE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 673

199 N.W.2d 673

41 Mich.App. 80

Nancie Hug PETRIE, Plaintiff-Appellee, v. Peter Lee PETRIE, Defendant-Appellant.

Docket No. 11980.

Court of Appeals of Michigan, Division No. 1.

May 26, 1972.

Released for Publication Aug. 18, 1972.

Leave to Appeal Denied Sept. 7, 1972.

A. Donald Kadushin, Rothe, Marston, Mazey, Sachs, O'Connell, Nunn & Freid, Detroit, for defendant-appellant.

Dee Edwards, Detroit, for plaintiff-appellee.

Before FITZGERALD, P.J., and McGREGOR and O'HARA ^*, JJ.

O'HARA, Judge.

The question here presented is offirst impression. It is of measurable significance to the trial bench and the profession. It involves an apparent conflict between two statutes. The first purports to place payments made pursuant to an award of the Workmen's Compensation Act beyond reach of any liability for debt. We set it forth. ¹

'Sec. 821. (1) No payment under this act shall be assignable or subject to attachment or garnishment or be held liable in any way for any debts. In case of insolvency every liability for compensation under this act shall constitute a first lien upon all the property of the employer liable therefor, paramount to all other claims or liens except for wages and taxes which lien shall be enforced by order of the court.'

The second Per contra purports to impose a lien on all property, real or personal, of any party who has been ordered to make payments pursuant to a judgment of divorce. We set forth that provision also. ²

'Sec. 27. In all cases where alimony or allowance for the support and education of minor children shall be awarded to either party, the amount thereof shall constitute a lien upon such of the real and personal estate of the adverse party as the court by its judgment shall direct, and in default of payment of the amount so awarded the court may order the sale of the property against which such lien is adjudged in the same manner and upon like notice as in suits for the foreclosure of mortgage liens; or the court may award execution for the collection of the judgment, or the court may sequester the real and personal estate of either party and may appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate to be applied to the payment thereof or the court in lieu of a money allowance may award such a division between the husband and wife of the real and personal estate of either party or of the husband and wife by joint ownership or right as he shall deem to be equitable and just.'

The conflict is more apparent than real. In irreducible simplicity, payments ordered by a judgment of divorce are not 'debts' as that term is used in the Workmen's Compensation Act.

In considering whether an arrearage in alimony payments was a debt dischargeable in bankruptcy, the United States Supreme Court held such arrearage was not a 'debt'.

'Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction.' Audubon v. Shufeldt, 181 U.S. 575, 577, 21 S.Ct. 735, 736, 45 L.Ed. 1009, 1010 (1900).

Again that Court addressed itself to the question in Wetmore v. Markoe, 196 U.S. 68, 74, 25 S.Ct. 172, 174, 49 L.Ed. 390, 393 (1904), where, in addition to alimony, support for children was involved.

'We think the reasoning of the Audubon Case recognizes the doctrine that a decree awarding alimony to the wife or children, or both, is not a debt which has been put in the form of a judgment, but is rather a legal means of enforcing the obligation of the husband and father to support and maintain his wife and children. He owes this duty, not because of any contractual obligation, or as a debt due from him to the wife, but because of the policy of the law which imposes the obligation upon the husband. The law interferes when the husband neglects or refuses to discharge this duty, and enforces it against him by means of legal proceedings.' (Wetmore, supra.)

We think precisely the same reasoning applies to payments ordered by the Workmen's Compensation Commission.

Our Supreme Court in discussing the legislative intent of the Michigan Workmen's Compensation Act (in another context) opined:

'The act was originally adopted to give employers protection against common-law actions and to place upon industry, where it properly belongs, not only the expense of the hospital and medical bills of the injured employee, but place upon it the burden of making...