Wilson v. Wilson.

• Decision Date: 08 December 1947
• Parties: WILSON v. WILSON.
• Court: Maine Supreme Court

56 A.2d 453

WILSON

v.WILSON.

Supreme Judicial Court of Maine.

Dec. 8, 1947.

Exceptions from Superior Court, York County.

Action of debt on a judgment of divorce by Edith F. Wilson against Louis N. Wilson to recover arrearages in alimony for the support of a child. From the judgment defendant brings exceptions.

Exceptions sustained.

See also 56 A.2d 458.

Lausier & Donahue, of Biddeford, for plaintiff.

Wilfred A. Hay, of Portland, for defendant.

Before STURGIS, C. J., and THAXTER, MURCHIE, TOMPKINS, FELLOWS and MURRAY, JJ.

THAXTER, Justice

This in form is an action of debt on a judgment commenced by a writ of attachment against real estate. The plaintiff obtained a divorce from the defendant at the May Term 1927 of the Supreme Judicial Court for the County of Work. Custody of a minor child was awarded to the libellant. The libellee, the present defendant, was ordered to ‘pay to the said Edith F. Wilson the sum of five dollars per week, for the support of said minor child. The first payment to become due and payable June 11th, 1927, and, in default of payment, upon affidavit filed in the Clerk's office, execution shall issue’. On April 23, 1937 the libellant, the present plaintiff, filed the affidavit referred to in the divorce decree showing an amount due her to April 17, 1937 of $533.50 and execution was issued to her for such amount. No notice was ever given to the libellee of the filing of the affidavit, nor was any hearing ever had by the court to determine the amount due.

The declaration in the present action sets forth the above facts with respect to the decree of divorce, the issuing of the affidavit, the failure of the defendant to pay the amount of the execution, and in addition alleges that he has failed to pay any of the $5.00 weekly payments which have accrued from April 17, 1937 to July 16, 1946, which is apparently assumed to be the date when the child became of age. The defendant filed a plea ‘that no such record or judgment exists' as the plaintiff has set forth. The only evidence was as to the divorce, the issuing of the affidavit, and the plaintiff's testimony as to her not having been paid anything since April 17, 1937. This evidence was objected to. The presiding justice found for the plaintiff in the sum of $2,688.50 which was the amount of the original execution plus $5.00 per week thereafter for 431 weeks, which would seem to carry the time slightly beyond the child's twenty-first birthday, if the mother's testimony as to his age is correct. For the purposes of this case this discrepancy is immaterial. It may be that the year should have been 1946 as set forth in the declaration instead of 1945 as testified to by the mother. The record in the case is somewhat confused but the question is whether an action of debt on a judgment will lie under these circumstances. It is evident from the comments made by the learned judge who heard this action that he not only had grave doubts on this point but also whether any execution could properly have been issued on April 23, 1937 without notice to the libellee.

We believe that an action on a judgment was not in this case a proper remedy. The authorities are in great confusion as to whether installments of alimony, for maintenance, or for support of children are as they mature a component part of the judgment of the court which granted the divorce. This conflict arises because of the peculiar nature of the judgment in a suit for divorce. The case of Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 686, 54 L.Ed. 905, 28 L.R.A.,N.S., 1068, 20 Ann.Cas. 1061, establishes the rule that the right to installments of alimony or for support becomes absolute and vested as they become due and that accordingly the decree requiring their payment is protected by the full faith and credit clause of the Federal Constitution Article 4, § 1, provided no modification of the decree has been made prior to the maturity of the installments. But the opinion concedes that this rule does not obtain where ‘by the law of the state in which a judgment for future alimony is rendered, the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive the instalments ordered by the decree to be paid, even although no application to annul or modify the decree in respect to alimony had been made prior to the instalments becoming due’. It is apparently assumed that if such is the rule within the state granting the divorce there is no final or valid judgment within such state as to the installments until the court before which the proceedings were had forecloses such right to modification. This could of course be done by the entry of an order, after a hearing on proper notice, for execution to issue.

The case of Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82, 157 A.L.R. 163, reinforces and amplifies the doctrine of the Sistare case and reiterates that the question is whether the right to the installments becomes vested as they mature.

The weight of authority seems to be that if there is reserved a right to revoke or modify accrued installments, an action on a judgment will not lie. Allen v. Allen, 100 Mass. 373; Levine v. Levine, 95 Or. 94, 187 P. 609; Bartholomae v. Stellwagen, 277 Mich. 618, 270 N.W. 159; Meister v. Day, 1925, 20 Ohio App. 224, 151 N.E. 786; 27 C.J.S. Divorce, § 256.

In Allen v. Allen, supra, the Massachusetts court at page 376 of 100 Mass. makes it very clear that the proper method to enforce a decree for divorce is by some process from the court which entered the decree: ‘The jurisdiction over divorce and all its incidents is vested exclusively in this court; and we regard it as the necessary result to be collected from all the legislative provisions on the subject, that, within this Commonwealth, a decree for alimony made by this court can be enforced by it only, and not by an action on the decree in the superior court. In Morton v. Morton, 4 Cush.Mass. 518, scire facias was recommended as a proper process to enforce payment of arrears of alimony. But the elaborate discussion of the subject by Chief Justice Shaw, in that case, would have been superfluous, if not inappropriate, had it been regarded possible to bring an action of debt or assumpsit on the decree in this or any other Massachusetts court.’ It should be noted that at the time this case was decided decrees for alimony in Massachusetts were subject to revision and alteration, and that the court distinguishes this case from Howard v. Howard, 15 Mass. 196, for this reason.

In Knapp v. Knapp, 134 Mass. 353, the court points out that scire facias, which is not an original suit but a continuation of the original suit, is a proper remedy to enforce the judgment or decree for alimony. But the court suggests that it is not the exclusive remedy and that a more flexible and appropriate procedure is that suggested in Slade v. Slade, 106 Mass. 499, 501, ‘by petition, properly supported, an order of notice, returnable at such time as the court shall direct, and thereupon the court may order the issue of an execution, or such other process as may be appropriate to enforce payment. * * * A petition is usually preferable to a scire facias, because the proceeding is more speedy and flexible; but no order should be made without hearing or notice.’

We are aware that Stratton v. Stratton, 77 Me. 373, 52 Am.Rep. 779, was an action of debt to enforce the payment of a decree for alimony. There was involved there a contract between the parties incorporated in the decree of divorce for the payment of alimony which extended beyond the lifetime of the husband and was not subject to modification by the court. The right to such being vested, suit on a judgment was unquestionably a proper remedy in that case. Whether...