Turner v. Turner
| Decision Date | 20 May 1901 |
| Docket Number | 850. |
| Citation | 108 F. 785 |
| Parties | TURNER v. TURNER. |
| Court | U.S. District Court — District of Indiana |
James L. Harman, for petitioner.
Dodge & Waltz, for respondent.
This is a petition for an injunction restraining the prosecution of proceedings supplementary to execution in a court of the state. On March 1, 1899, the defendant, then the wife of the complainant, filed her complaint in the circuit court of Elkhart county, Ind., against the complainant for divorce and alimony, on the ground of his cruel and inhuman treatment. Summons was personally served on the complainant herein, and such proceedings were had in the state court as that a decree of divorce was granted to the above-named defendant against the above-named complainant, and the court further adjudged and decreed that the defendant herein 'do have and recover of and from the complainant herein the sum of $500 as alimony, together with the costs of suit. ' An execution was issued on the judgment for alimony, and was returned nulla bona. On February 15, 1901, said Turner filed his voluntary petition in bankruptcy in this court, and on the same day he was adjudged a bankrupt. The schedule filed with his petition discloses indebtedness to the amount of $653 $600 of which consists of the alimony decreed to his wife with interest thereon. On March 28, 1901, the above-named defendant instituted proceedings supplementary to execution in the state court to enforce the payment of said decree for alimony. These supplementary proceedings are still pending. On May 13, 1901, the above-named complainant filed his petition for injunction in this court, asking the court to restrain the above-named defendant from the further prosecution of the proceedings supplementary to execution.
The right to the restraining order depends on the question whether the alimony decreed to the defendant is a debt provable against the bankrupt's estate. The assets of the bankrupt, as shown by his schedule, amount to the sum of five dollars. It is apparent that, if the decree for alimony is a provable debt, the wife will be wholly deprived of the provision made for her support by the statute of this state and by the decree of the court. Alimony is an allowance for the support and maintenance, having no other purpose and provided for no other object. It is solely intended to furnish a provision for food, clothing, and habitation for the wife, who has been driven to seek a divorce on account of the husband's wrongful breach of the marriage contract. The amount necessary for this purpose depends more or less on the condition, habits of life, and social position of the parties, and, while the judgment of the court will be somewhat influenced by these considerations, the primary and distinctive purpose of support will never be lost sight of. It is not awarded as a debt, but for the enforcement of a duty growing out of the marital relation, which is not severed by the husband's misconduct. He owes this duty while the marital relation subsists, and the decree of alimony but continues this duty in force after the dissolution of the marriage contract. As has been well said, the allowance only becomes a debt in the sense that the general duty over which the husband had a discretionary control has been changed into a specific duty over which he has no control. The authorities hold that alimony is not strictly a debt due to the wife, but rather a general duty of support made specific by the decree of the court. 2 Am.& Eng.Enc.Law (2d Ed.) 117, and cases cited in notes. It is not a debt or liability which the wife can assign, nor can it be appropriated for a debt existing prior to the divorce. These special attributes of property are denied to the wife. It is evident that it is not an ordinary debt due to the wife, which she may deal with at her pleasure. It is a special fund, devoted to the support and maintenance of the wife, provided by the policy of the state to protect her from becoming a public charge, and to secure her against the temptations to a life of vice. The bankrupt in this state is entitled to an exemption to the amount of $600 from debts founded on a contract, express or implied. He is entitled to no exemption on a judgment for alimony. The bankrupt on debts founded on contract, express or implied, is entitled to claim his exemption, and thus, if the decree of alimony is a provable debt, the wife is left wholly dependent while her husband retains the $600, which by the policy of the state ought to be applied to her support.
It is claimed that this fund, provided in a wise public policy,-- a policy essential to good morals and having its foundation in the family relations,--is an ordinary debt, which is extinguished by proceedings in bankruptcy. If this be so, it will at once be seen how effectually the bankrupt law overturns and defeats one of the wisest and most humane provisions of state policy for the protection of the injured wife. The policy of the state is to give bread to the divorced wife, but the bankrupt act on complainant's contention would give her husks instead. It would rob the wife of her support, and reward the guilty husband by granting him a full and free discharge. It may be that congress has the power indirectly through a bankrupt law to defeat the policy of the state regulating the dissolution of the contract of marriage. It could not do it directly, because the regulation of the domestic relations is a matter purely of state concern. The court ought not to impute to congress a design to defeat the policy of the state unless the language...
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