Sistare v. Sistare

• Decision Date: 05 June 1907
• Citation: 66 A. 772,80 Conn. 1
• Court: Connecticut Supreme Court
• Parties: SISTARE v. SISTARE.

66 A. 772

80 Conn. 1

SISTARE

v. SISTARE.

Supreme Court of Errors of Connecticut.

June 5, 1907.

Appeal from Superior Court, New London County; John M. Thayer, Judge.

Action by Mathilde Von Ellert Sistare against Horace Randall Sistare. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Action to recover upon a New York decree granting periodical payments for future maintenance. Demurrer to complaint overruled. Facts found and judgment rendered for the plaintiff, to recover $5,805, and an appeal by the defendant Judgment set aside, and judgment for defendant ordered.

In 1899 the plaintiff was by the courts of New York granted to separation from the defendant, her husband, and awarded the custody of their minor son. By the judgment it was further ordered, adjudged, and decreed that the defendant from and after the entry thereof should pay to the plaintiff for her maintenance and support and the maintenance and education of said son the sum of $22.50 per week, to be paid into the hands of the plaintiff's attorneys of record on each and every Monday. It was further ordered, adjudged, and decreed that the plaintiff have leave to apply from time to time for such orders at the foot of the judgment as might be necessary for its enforcement and for the protection and enforcement of her rights in the premises. Section 1771 of the New York Code of Civil Procedure then in force, under which this order for payments to the wife for her benefit and that of her son was made, provided that in actions for a separation the court might either in the final judgments or by orders made from time to time before such judgment give such directions as justice required between the parties for the custody, care, education, and maintenance of any of the children of the marriage, and, where the action should be brought by the wife, for her support it was further provided that the court might upon the application of either party, after due notice to the other, by order annul, vary, or modify such directions. The right of the defendant to make such an application was conditioned upon leave of the court to make it having been first obtained. Section 1772 provided that the court might require the husband to give security for the payments which he might be directed to make as aforesaid, and that in case of a failure on his part to make payments or give security as directed, his personal property and the rents and profits of his real property might be sequestered, a receiver thereof appointed, and the property thus sequestered applied under the direction of the court to the satisfaction of the payments ordered as justice should require. Section 1773 further provided that where a husband was in default of his payments, and it appeared presumptively that the proceedings specified in section 1772 would be ineffectual, the court might in its discretion institute proceedings against him for his punishment for contempt. The defendant made none of the payments required of him by said order and decree, and this suit was brought to recover the amount in arrears, which at the commencement of the action was $5,805. Judgment for that sum was rendered. The complaint recited the issuance of the order and its terms in full, that it still remained in full force and effect, and that payments had not been made as ordered to the amount of $8,500, and prayed for judgment for $10,000 damages. The defendant demurred for the reasons that the so-called judgment or decree sought to be enforced was not one for the present payment of a definite sum of money, and therefore could not be enforced in this state; that it did not create a debt or obligation which was enforceable in an action of the character of the present, but only by the court which issued it; and that it was not such a judgment as was entitled to full faith and credit in this state and enforceable by action here. This demurrer was overruled, whereupon the defendant answered over. Upon the trial the same questions which were presented upon the demurrer were again presented. The trial court, however, accepted the rulings upon the demurrer as the law of the case and upon the facts found rendered judgment as stated.

Walter C. Noyes, for appellant. Benjamin Slade, for appellee.

PRENTICE, J. (after stating the facts). The nature, operation, and effect within the state of New York of orders like that in question directing payments in futuro to a wife by a husband living in judicial separation and passed in 1899, pursuant to the then provisions of statute, have been well settled by the repeated decisions of the courts of that jurisdiction. They have been declared to be tentative provisions which remain at all times within the control of the court issuing them and subject to being at any time modified or annulled. Tonjes v. Tonjes, 14 App. Div. 542, 43 N. Y. Supp. 941. The right of modification or annulment which is thus reserved to the court is one which extends to overdue and unsatisfied payments, as well as to those which may accrue in the future. Sibley v. Sibley, 66 App. Div. 552, 73 N. Y. Supp. 244; Goodsell v. Goodsell, 94 App. Div. 443, 88 N. Y. Supp. 101; Kiralfy v. Kiralfy, 36 Misc. Rep. 407, 73 N. Y. Supp. 708; Wetmore v. Wetmore, 34 Misc. Rep. 640, 70 N. Y. Supp. 604. "The amount awarded does not exist as a debt in favor of the wife against the husband in the sense of indebtedness as generally understood." Tonjes v. Tonjes, 14 App. Div. 542, 43 N. Y. Supp. 941. The order is not one "which simply directs the payment of a sum of money," and not such a one as can have enforcement by execution. Weber v. Weber, 93 App. Div. 149, 87 N. Y. Supp. 519. The special remedies provided in sections 1772 and 1773 for the enforcement of the orders are exclusive. Weber v. Weber, supra; Branth v. Branth, 13 N. Y. Supp. 360, 59 Hun, 623. No judgment in another court can be entered upon them. Branth v. Branth, supra. Such being the character of the order before us as declared by the courts of the jurisdiction from which it comes, the conclusion would seem inevitable, not only that the courts of this state are under no constitutional obligation to give effect to it in the manner here sought, but ought not, as an act of comity, to do so, since it would thus be given a greater effect than would be given to it in the jurisdiction of its origin. McElmoyle v. Cohen, 13 Pet. (U. S.) 312, 326, 10 L. Ed. 177; Mills v. Duryee, 7 Cranch (U. S.) 481, 3 L. Ed. 411; Bank v. Wheeler, 28 Conn. 433, 439, 73 Am. Dec. 083.

But we are not left without authoritative declarations as to the extraterritorial value of this New York decree. A Mrs. Lynde was by the Court of Chancery of New Jersey granted a separation from her husband, and it was adjudged that she was entitled to recover $7,840 as alimony then due and payable, and that her husband pay to her permanent alimony at the rate of $80 a week from the date of the decree. The statutes of New Jersey contained no express reservation of power to the court to modify or annul allowances of alimony so made, but the courts had said that they exhibited the intention that the subject should be continuously dealt with according to the varying conditions and circumstances. Gen. St. N. J. p. 1269 et seq.; Lynde v. Lynde, 54 N. J. Eq. 473, 476, 35 Atl. 641. As to the methods of enforcing such decrees the New Jersey statutes contained substantially the same provisions for security, sequestration and receivership proceedings as were embodied in the New York Code when the order in the present case was made as recited in the statement of facts. It thus appears that the provision for the payment of future alimony to Mrs. Lynde in New Jersey was affected by no condition which did not equally affect that to Mrs. Sistare in New York. There was the same reserved power of modification, only the more clearly and emphatically expressed, and the same provision of special remedies which the New York courts had gone so far as to declare to be exclusive. Mr. Lynde having failed to make any of the payments required of him, Mrs. Lynde brought suit against him in the courts of New York for the recovery of both the $7,840 and the amount of the accrued weekly payments. The appellate courts of that state, whose decisions have special interest as embodying the views prevailing in the jurisdiction from which the order before us comes, and the Supreme Court of the United States, to which the case was finally taken upon the federal question involved, concurred in holding that the award of $7,840 created a debt of record to which full faith and credit should be given in the courts of a sister state, and that the order for future payments did not create such a debt, and did not constitute such a judgment or judicial proceeding as was within the purview of section 1, art. 4, of the Constitution of the United States. Lynde v. Lynde, 41 App. Div. 280, 58 N. Y. Supp. 567; Id., 162 N. Y. 405, 56 N. E. 979, 48 L. R. A. 679, 76 Am. St. Rep. 332; Id., 181 U. S. 187, 21 Sup. Ct. 555, 45 L. Ed. 810. The conclusion thus reached is succinctly stated, and the...