Wright v. Wright

• Decision Date: 19 February 1919
• Citation: 105 A. 684,93 Conn. 296
• Court: Connecticut Supreme Court
• Parties: WRIGHT v. WRIGHT.

105 A. 684

93 Conn. 296

WRIGHT v. WRIGHT.

Supreme Court of Errors of Connecticut.

February 19, 1919

Appeal from Superior Court, Hartford County; Lucien F. Burpee Judge.

Petition by Eleanor D. Wright against Daniel M. Wright for attachment for contempt. From judgment committing him to county jail the defendant appeals. No error.

The petition alleges that on January 4, 1918, the plaintiff obtained a decree of divorce from the defendant whereby it was adjudged that the defendant pay the plaintiff $10,000 in installments-$3,500 within 30 days, $3,500 within 60 days and $3,000 within 90 days; and that the defendant, in willful violation and contempt of the decree, had refused to pay any part of the $3,500 due 60 days after its date, and any part of the $3,000 due 90 days after its date.

The defendant answered the petition by alleging that on February 27, 1918, he had been garnished in an action brought by one Freeman against the plaintiff, claiming $1,650 damages, in which action " moneys in the hands of the defendant to the amount of $1,650 were attached" ; and that before the beginning of these contempt proceedings, on April 2, 1918, he had been garnished in an action brought by himself against the plaintiff claiming $3,000 damages. The answer then alleged the payment of all alimony not so attached, and that the defendant was ready and willing to pay the balance of $4,650 on being released from the attachments.

To this answer the plaintiff demurred on the ground that alimony cannot be attached or taken by the proceedings set forth in the defendant's answer, and the superior court sustained the demurrer.

Andrew J. Broughel and Birdsey E. Case, both of Hartford, for appellant.

Sidney E. Clarke, of Hartford, for appellee.

BEACH J.

The question is whether alimony in the hands of the husband is subject to garnishment (a) in an action brought against the divorced wife by the husband himself; (b) in an action brought against her by a third party.

The first branch of the question is answered by the mere statement of it. The decree, until reversed, " must be obeyed, or the party must purge himself of contempt by showing his inability to pay it, and that the inability is not occasioned by his own act for the purpose of avoiding payment." Ex parte Spencer, 83 Cal. 460, 466, 23 Prac. 395, 397(17 Am.St.Rep. 266); Schuele v. Schuele, 57 Ill.App. 189. Obviously the defendant's attempt to factorize himself was his own act, done for the purpose of avoiding payment. He cannot purge himself on the ground that he has seen fit to prevent himself from obeying the decree, or on the ground that he ought not to be compelled to obey it, lest he should become responsible to himself in scire facias proceedings for the amount of his own attachment.

Incidentally it may be observed that it has never been held in this state that a plaintiff may factorize himself in his own suit. The point was raised, but not decided, in Beach v. Fairbanks, 52 Conn. 167, 172, where the authorities on both sides of the question are collected.

The answer to the other question-whether alimony in the hands of the husband is subject to garnishment in an action brought against the divorced wife by a third person-turns upon our foreign attachment statute. Under section 5915, Gen. St., the only subjects of foreign attachment are the effects of the defendant when concealed in the hands of his agent or trustee, debts due the defendant from any person, and legacies and distributive shares due from estates of deceased persons or insolvent debtors.

Although the decree " operates as a division or partition, between the husband and wife, of his property, in such proportion as the court, by its decree, determines" (Lyon v. Lyon, 21 Conn. 185, 198), it seems clear that when the decree is not for a specific division of property, but for a commutation payment in money, the husband cannot be said to have any property or effects of the divorced wife in his hands. No specific fund in the husband's hands can be identified as dedicated to the payment of alimony, for the reason that the decree is a charge upon the husband's whole estate, and not a severance of a part of it. Therefore the allegation of the answer that by the Freeman garnishment " moneys in the hands of the defendant to the amount of $1,650 were attached," is a wrong statement of the legal effect of the garnishment.

Evidently the only theory on which the defendant can be protected by the Freeman garnishment is that it operated on the intangible obligation of paying the plaintiff certain sums at fixed times. If that obligation was a debt, and in this case a judgment debt, due from the defendant to the plaintiff, then the debt itself-the obligation to pay-was secured in the hands of the garnishee for the payment of any judgment which Freeman might recover in that action. But if the decreed obligation to pay alimony is not a debt, then the statute does not subject it to garnishment at all.

This precise question has been settled in this state in Lyon v Lyon, supra, which was also an application for commitment for contempt of a decree for alimony. It was contended in that case that a commitment for contempt would deprive the defendant of the exemption from imprisonment for debt, or take away the privilege of the oath provided by law for poor debtors; and it was held that " the court does not *** decree and assign alimony, as a debt due to the wife, or as damages to be paid to her, by her late husband," etc. In Scott v. Scott, 83 Conn. 634, 639, 78 A. 314, 316 (21 Ann. Cas. 965), this language is repeated with approval, and alimony is described as " an allowance out of the estate of the husband...