Wells v. Wells

• Citation: 209 Mass. 282,95 N.E. 845
• Parties: WELLS v. WELLS (two cases).
• Decision Date: 19 June 1911
• Court: United States State Supreme Judicial Court of Massachusetts

209 Mass. 282

95 N.E. 845

WELLS v. WELLS (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

June 19, 1911

These are two actions of contract, the first being upon an alleged decree of the circuit court for the county of Wayne, in the state of Michigan, rendered in divorce proceedings between the parties on April 20, 1908, and the second being upon a like decree rendered by the same court on February 23, 1909.

The alleged copy of the petition and the alleged copy of a decree of April 20, 1908, were (in part) as follows:

'State of Michigan. The Circuit Court for the County of Wayne in Chancery.

'Maude M. Wells, Complainant, v. Percy D. Wells, Defendant.

'Your petitioner shows that she is the complainant in the above entitled cause.

'That on the eleventh day of October, 1905, your petitioner was awarded a decree of divorce by this court from the above named defendant. In said decree this court made the following order with reference to alimony and the care, custody, and support of the minor child Gwendolyn, to wit: * * *

'It is further ordered that the said defendant, Percy D. Wells, as permanent alimony, shall pay to the said complainant, Maude M. Wells, the sum of thirty-five ($35.00) dollars per month beginning November 9, 1905, payable at the end of each month thereafter, monthly, for five years from and after October 9, 1905, the payment of such alimony to be in full of all interest in defendant's property, and all dower interest. * * *

'In case of the marriage of said complainant, the said payment of thirty-five ($35.00) dollars per month shall cease and the said defendant shall be released from all further payments which would become due after the happening of such event.

'The provisions with respect to the said child shall remain in force until the said child shall obtain the age of fourteen years or until the further order of this court. * * *

'Your petitioner further shows that it was contemplated in such decree that the said defendant should stand the expense and support of such child for nine months in the year and that he now absolutely refuses to pay or stand any part of the support or expenses of such child. * * *

'That the said defendant is now in arrears in the payment of the permanent alimony ordered and fixed by this court in the original decree of divorce, in the sum of $335.00, on the 9th of April inst., which sum the said defendant has neglected and refused to pay, though abundantly able so to do. * * *'

'The motion of the said complainant to determine the amount of permanent alimony now due her from the said defendant and to determine the amount the said defendant should pay for the past care and support of the child of said parties, and to determine the cost of its future care, having come on to be heard, this court doth order, adjudge, and decree as follows: That on the 9th of April, 1908, there was due, and is still due, to the above named complainant from said defendant the sum of $335 heretofore ordered paid to her by this court as permanent alimony. That she be and is hereby allowed the sum of ($250) for schooling and medical attendance upon said child of said parties to this time, which said sum shall be paid by said defendant to the said complainant forthwith. It is further ordered that execution issue from this court for the said sum of $335 and $250, a total of $585, in favor of complainant and against said defendant.'

The alleged copies of the petition of January 25, 1909, and of the decree of February 23, 1909, were (in part) as follows:

'Your petitioner shows that under a decree of this court dated April 20, 1908, your petitioner was allowed two hundred fifty dollars for the schooling and medical attendance of said child up to that time and your petitioner was further allowed a set sum of $335 as permanent alimony under said original divorce decree, the said sum being payment up to April 9, 1908. In said decree it was further ordered that execution issue for the said sum of $335 and the said sum of $250 in favor of complainant and against said defendant. Your petitioner further shows that no part of said sums have been paid by defendant.

'Your petitioner further shows that said defendant is now further in arrears in the payment of permanent alimony ordered as aforesaid by this court in the original decree of divorce, in the sum of $245, being the rate of $35 per month from April 9th to November 9th last, which said sum defendant has neglected and refused to pay though abundantly able to do so. * * *'

'The motion of the said complainant to determine the amount of permanent alimony now due her from the said defendant and to determine the amount the said defendant should pay for the past care and support of the child of said parties, and to determine the cost of its future care, having come on to be heard, this court doth order, adjudge and decree as follows: That on the 9th of January, 1909, there was due and is still due to the above named complainant from said defendant the sum of $245 heretofore ordered paid to her by this court as permanent alimony. That she be and is hereby allowed the sum of $130 for schooling and keeping said child of said parties from April 20, 1908, to this time, which said sum shall be paid by said defendant to the said complainant forthwith. It is further ordered that execution issue from this court for the said sum of $245 and $130, a total of $375, in favor of complainant and against said defendant, this allowance being to Jan'y 9, 1909, and is in addition to the $585 found due this complainant on February 20, 1908, which order and decree is hereby ratified. It is ordered that execution issue therefor.'

COUNSEL

Brown, Field & Murray, for plaintiff.

E. V. Grabill, for defendant.

OPINION

SHELDON, J.

1. The fundamental question in these cases is whether an action can be maintained in this commonwealth upon the decrees of the circuit court of Michigan which are declared on. If they are final decrees for the payment of ascertained sums of money constituting a debt of record, they are entitled to full faith and credit in every state and may be enforced by suit in the same way as any other judgments or decrees. And while there has been some difference in the decisions we regard it as now settled that prima facie at least a decree for the payment of a fixed sum of money found to be already due and payable to a wife for the past support of herself and her children is to be regarded as a final decree, although an order for future payments as a provision for future support being ordinarily liable to modification at any time, is subject to the control of the court which made the order, and so in not a final order for the payment of a fixed sum. That was the conclusion reached by this court in a carefully considered opinion. Page v. Page, 189 Mass. 85, 75 N.E. 92. It is supported by other decisions. Purdon v Blinn, 192 Mass. 387, 78 N.E. 462, and cases cited; Knapp v. Knapp, 134 Mass. 353; McIlroy v. McIlroy, 208 Mass. 458, 94 N.E. 696; Mayer v. Mayer, 154 Mich. 386, 117 N.W. 890, 19 L. R. A. (N. S.) 245, 129 Am. St. Rep. 477; Trowbridge v. Spinning, 23 Wash. 48, 62 P. 125, 54 L. R. A. 204, 83 Am. St. Rep. 806; Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810, and 162 N.Y. 405, 56 N.E. 979, 48 L. R. A. 679, 76 Am. St. Rep. 332. The defendant contends, however, that under the law of Michigan these decrees were not final, because under the statutes of that state they might at any time, upon the petition of either party, be revised and altered. 3 Comp. Laws Mich. 1897, §§ 8630-8641. Upon this question at the trial each party put in evidence, besides these statutes, certain decisions of the Supreme Court of Michigan and there was testimony of a qualified expert. Among these decisions were the following: In Nixon v. Wright, 146 Mich. 231, 109 N.W. 274, it was held that an order for alimony in a decree for divorce, being subject to modification at any time by the court which made it (section 8641, ubi supra), and that court having full power to enforce it, it is not such a judgment for money that an action at law can be maintained upon it. The point decided went no further than our decision in Allen v. Allen, 100 Mass. 373, and does not settle the question before us. But the language of the opinion tends to sustain the defendant's contention. In Jordan v. Westerman, 62 Mich. 170, 28 N.W. 826, 4 Am. St. Rep. 836, there is a dictum that a decree for alimony vests in a wife no absolute right thereto. In Perkins v. Perkins, 10 Mich. 425, there is a similar dictum, and it was held that an order of the circuit court, opening an order for alimony and ordering a reference to a commissioner to hear evidence and make report to the court, was not a final decree from which an appeal could be taken to the Supreme Court. But it...