Romaine v. Chauncey

• Decision Date: 20 January 1892
• Citation: 129 N.Y. 566,29 N.E. 826
• Parties: ROMAINE v. CHAUNCEY.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 566

29 N.E. 826

ROMAINE

v.CHAUNCEY.

Court of Appeals of New York.

Jan. 20, 1892.

Appeal from supreme court, general term, first department.

Action by Isaac Romaine, receiver, against Michael Chauncey. From a judgment of the general term reversing a judgment for plaintiff, and sustaining defendant's demurrers to the amended complaint, plaintiff appeals. Affirmed.

George V. N. Baldwin, for appellant.

Cowen Dickerson, Nicoll & Brown, and Noel Gale, for respondent.

FINCH, J.

This case presents an interesting question which we are called upon for the first time to decide. There are no direct and conclusive precedents to be followed, no explicit and specific statutes coming with an appropriate direction, but only a broad general rule on the one side, and a just and strong necessity for an exception to it on the other. The question is whether alimony awarded to an innocent wife by a court of equity as incidental to a decree of divorce in her favor can be appropriated by her creditor to the discharge of a debt contracted by her and actually subsisting prior to the date of the decree. The question was different in Stevenson v. Stevenson, 34 Hun, 157, cited as a pertinent authority; for in that case the decree of divorce was granted in 1855, and the creditor's judgments obtained in 1880. A debt contracted by the wife after the decree, presumably for her support, and with natural reliance upon the alimony by the creditor as the means of payment, stands upon a very different footing from a debt of the wife contracted prior to or during the marriage, and before its judicial dissolution. In the latter case two new elements enter into the question,-one, the imposition f an unfounded duty on the husband; and the other, a perversion of the decree from its definite and intended purpose, and from that authorized by the law. Alimony, as we all understand, is an allowance for support and maintenance, having no other purpose and provided for no other object. Like the alimentum of the civil law, from which the word was evidently derived, it respects a provision for food, clothing, and a habitation, or the necessary support of the wife after the marriage bond has been severed; and since what is thus necessary has more or less of relation to the condition,habit of life, and social position of the individual, it is graded in the judgment of a court of equity somewhat by regard for these circumstances, but never loses its distinctive character. If sometimes, as the appellant claims, regard is had to the brutal and inhuman conduct of the husband, (Burr v. Burr, 10 Paige, 20,) it serves only to make the court less considerate of his situation, and more liberal in its view of the necessities of the wife. Thus the prevailing rule in this country is said to be that, where the wife has sufficient means to support herself in the rank of life to which she belongs, no alimony will be allowed, (1 Amer. & Eng. Enc. Law, 485;) and where the parties are living apart under an agreement of separation, by the terms of which the husband has provided adequate means of support, no temporary alimony will be given, (Collins v. Collins, 80 N. Y. 1;) and, when awarded, it is not so much in the nature of a payment of a debt as in that of the performance of a duty. During the marriage the husband owes to the wife the duty of support and maintenance, although owing her no debt in the legal sense of the word; but, under the modern statutes, he does not owe to her the duty of paying her debts contracted before the marriage or thereafter, if they are solely hers, and not at all his. The divorce, with its incidental allowance of alimony, simply continues his duty beyond the decree, and compels him to perform it, but does not change its nature. The divorce and consequent separation are wholly his own fault, and do not relieve him from the continued performance of the marital obligation of support. The form and measure of the duty are, indeed, changed; but its substance remains unchanged. The allowance becomes a debt only in the sense that the general duty over which the husband had a discretionary control has been changed into a specific duty, over which, not he, but the court, presides. The authorities, therefore, cited to the effect that alimony is not strictly a debt due to the wife, but rather a general duty of support made specific and measured by the court, seem to me to be well founded. Wallingsford v. Wallingsford, 6 Har. & J. 485;Daniels v. Lindley, 44 Iowa, 567;Burr v. Burr, 7 Hill, 207;Gunther v. Jacobs, 44 Wis. 354;Crain v. Cavana, 62 Barb. 109;Jordan v. Westerman, 62 Mich. 170, 28 N. W. Rep. 826. And so it follows that as, during the marriage, the husband, while bound to support the wife, was not bound to pay her pre-existing or separate debts, so, after the divorce, he must continue the support, but is not required to pay out of his means furnished for that purpose the wife's antecedent debt. The decree cannot logically work the miracle of transforming the duty which he does owe into one which he does not and never did owe; and yet that result is inevitable if the antecedent creditor is at liberty to swoop down upon the provision, and carry it a way for his own use.

That result accomplishes another thing. It perverts and nullifies the decree of the court, and leaves the judgment specifically made for one purpose to operate wholly for another, and so obstruct and destory the humane intent of the law. There is no doubt, of course, that the wife's right to alimony comes from the statute, and not from the common law. If that proposition needed the aid of a full and historical argument in its support, such has already been furnished by this court. Erkenbrach v. Erkenbrach, 96 N. Y. 456. We must look, then, to the provisions of the Code of Civil Procedure, which has recast and reproduced the terms of the previous statutes, to see when and for what purpose alimony may be allowed. Section 1769 regulates the temporary alimony which may be awarded pendente lite. The terms of the provision are that in an action for an absolute divorce or for a separation the court may, in its discretion, make orders requiring the husband to pay any sum or sums of money necessary to enable the wife to defend the action, or to provide suitably for the education and maintenance of the children of the marriage, or for the support of the wife, having regard to the circumstances of the respective parties. It seems to me impossible to misunderstand the force or meaning of that provision. Its palpable purpose is to enable the wife to prosecute her suit, and save her from starvation or beggary during the process. Is it conceivable that the court making such order is bound to stand silent and submissive while the whole scope and purpose of its provision is perverted and nullified? If that be so, the law of divorce has no help or remedy for the injured wife...