Weidman v. Weidman

• Decision Date: 08 January 1931
• Citation: 174 N.E. 206,274 Mass. 118
• Parties: WEIDMAN v. WEIDMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 118

174 N.E. 206

WEIDMAN

v.WEIDMAN.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 8, 1931.

Appeal from Superior Court, Middlesex County; Lummus, Judge.

Bill by Bertha Weidman against Abraham Weidman. From a decree dismissing the bill, complainant appeals.

Affirmed.Francis Juggins and Mendon Morrill, both of Boston, for appellant.

Harold I. Klarfeld and Samuel Abrams, both of Boston, for appellee.

RUGG, C. J.

The allegations of the bill in effect are that the plaintiff, now a resident of the state of New York, and the defendant, now a resident of this commonwealth, were married in Poland, where they lived together as husband and wife, as well as in Austria and Germany; that the defendant subsequently deserted the plaintiff and took up his residence in the state of New York, where he instituted a proceeding in the Supreme Court for the annulment of their marriage; that in 1928 in that court, on motion of the plaintiff (the defendant in that proceeding), order was entered that the defendant (the plaintiff in that proceeding) pay to the present plaintiff alimony pendente lite and attorneys' fees; that in 1929 in that proceeding judgment was entered in favor of the plaintiff (the defendantin that proceeding) against the defendant (the plaintiff in that proceeding) for a specified sum representing counsel fees and alimony due the plaintiff, and that such judgment remains in no part satisfied. The main prayer is that the defendant be ordered to pay to the plaintiff the amount now due on that judgment.

The answer of the defendant set up certain defenses to the merits, and further averred that by the allegations of her bill the plaintiff is still the wife of the defendant; that no decree of nullity or dissolutions of the marriage between them has been entered, and that under the law of this commonwealth, in view of those allegations, the bill cannot be maintained.

The matter thus set out in the answer was proper for demurrer, Baker v. Langley, 247 Mass. 127, 132, 141 N. E. 671, or plea, E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110, 163 N. E. 883;Reilly v. Selectmen of Blackstone, 266 Mass. 503, 507, 165 N. E. 660, or it might with like effect be set up in the answer. Russell v. Loring, 3 Allen, 121, 125, 126. Rule 9 of Equity (1926) Rules.

The defendant and the plaintiff are husband and wife according to the averments of the bill. The obligation disclosed by the allegations of the bill on which the suit is founded is the judgment of a court of a sister state. The scope and purpose of that judgment is solely the payment of money. It was settled by Purdon v. Blinn, 192 Mass. 387, 389, 78 N. E. 462, 463, after an exhaustive review of our authorities, that a decree for alimony for a gross sum established an obligation that ‘is plainly in the nature of a debt, and for most purposes it can fairly be called a debt.’ Commonly, action by a court ordering the payment of alimony is termed a decree. It is alleged in this bill to be a judgment. While a decree for alimony is not always accurately describable as a debt, Williamson v. Williamson, 246 Mass. 270, 273, 140 N. E. 799, it seems clear that the allegations of the present bill set forth an obligation constituting a debt of record. Wells v. Wells, 209 Mass. 282, 288, 95 N. E. 845,35 L. R. A. (N. S.) 561;McIlroy v. McIlroy, 208 Mass. 458, 464, 465, 94 N. E. 696, Ann. Cas. 1912A, 934;Dorey v. Dorey, 248 Mass. 359, 361, 142 N. E. 774;Shepherd v. Shepherd, 196 Mass. 179, 182, 81 N. E. 897.

No subject of equity jurisdiction is set forth in the bill. No ground for relief peculiar to equity as distinguished from law is alleged in the pleadings. The design of the bill is to collect the sum of money established as due to the plaintiff by the judgment of the New York court and nothing more. The ordinary means for collecting a judgment debt is by action at law. There can be no resort to equity to that end save where special equitable relief, such as a creditor's bill, is sought outside bald collection. Rioux v. Cronin, 222 Mass. 131, 137, 139, 109 N. E. 898. A complete and adequate remedy is afforded by an action at law. Jurisdiction in equity exists over suits between husband and wife to secure her separate property, to prevent fraud, to relieve from coercion, to enforce trusts and to establish other conflicting rights concerning property. Gahm v. Gahm, 243 Mass. 374, 376, 137 N. E. 876, and cases there cited; Fitcher v. Griffiths, 216 Mass. 174, 103 N. E. 471;Lombard v. Morse, 155 Mass. 136, 140, 141, 29 N. E. 205,14 L. R. A. 273;Young v. Young, 251 Mass. 218, 221, 146 N. E. 574;Powell v. Powell, 260 Mass. 505, 157 N. E. 639;Cram v. Cram, 262 Mass. 509, 160 N. E. 337.

The statutes of this commonwealth enlarging the rights of married women and narrowing their legal limitations do not in general authorize actions or suits between husband and wife. But for the fact that the parties to the present suit are husband and wife, the natural remedy for the wrong alleged in the bill would be an action at law to recover the money said to be due to the plaintiff. Such an action at law cannot be maintained between husband and wife. Golder v. Golder, 235 Mass. 261, 126 N. E. 382. That mere circumstance is not ground for relief in equity. It is provided by G. L. c. 209, § 6, that a ‘married woman may sue and be sued in the same manner as if she were sole; but this section shall not authorize suits between husband and wife.’ That is the general rule. It is only by establishing some special ground for equitable relief, such as those enumerated in Gahm v. Gahm, 243 Mass. at page 376, 137 N. E. 876, that an exception to that general rule can be recognized. Barbour v. Sampson, 266 Mass. 180, 165 N. E. 14.Druker v. Druker (Mass.) 167 N. E. 638;Atkins v. Atkins, 195 Mass. 124, 80 N. E. 806,11 L. R. A. (N. S.) 273, 122 Am. St. Rep. 221. The averments of the present bill do not bring the case within any exception to the general rule. As already stated, the only legal obligation to be gathered from the allegations of the bill is a judgment debt, and the only relief sought is the collection of that judgment debt by payment through the pressure of legal process.

If the substance on which the New York judgment rests be examined, the plaintiff is in no better position. That judgment was founded on alimony and attorneys' fees. The power of the courts of this commonwealth to grant alimony and attorneys' fees is purely statutory. It does not fall under any branch of jurisdiction in equity. Relief of such nature can be afforded only as an incident to proceedings for divorce. It cannot be allowed by independent suit in equity. Parker v. Parker, 211 Mass. 139, 97 N. E. 988, and cases cited.

It follows that, because the parties hereto are husband and wife and no grounds for a suit in equity or for equitable relief are set out in the bill, the suit cannot be maintained.

The point here raised and now decided was left open in Page v. Page, 189 Mass. 85,...