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Gane v. Gane

45 N.Y. Super. Ct. 355 13 Jones & S. 355 Court N.Y. Super. Ct. Decision date 1879-11-03 English

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p. 355
RUTH A. GANE, Plaintiff and Respondent, v. GEORGE A. GANE, Defendant and Appellant.

Headnote

Divorce, judgment of.—Alimony included therein.
Enforcement of the same by proceedings to punish defendant for contempt of court, in the disobedience of the judgment.
The order appealed from directed, in substance, that the defendant pay to plaintiff the alimony due to her under the judgment of divorce, to the date of the order, to wit: the sum of $775; and also that he pay, after the date of the order, $600 annually, in weekly payments, and that he give security for the future payment of the $600, and in default thereof, that an attachment issue, punishing said defendant for a contempt of the court.
The original judgment might have been enforced by execution, and for that reason the court had no power to enforce it, in cáse of disobedience, by commitment for contempt (Code Civ. Pro. §§ 14, 1241).
The statute, in permitting the requirement of reasonable security as a means of enforcing the order or judgment, does not permit a commitment for contempt; and in case of disobedience, the only relief is the application, through sequestration, of the defendant’s property to the payment of the allowance (Lansing v. Lansing, 4 Lans. 37 ; and see statutes cited in the opinion of the court).
p. 356
Before Sedgwick and Freedman, JJ.
Decided November 3, 1879.
Appeal from order, directing that defendant pay a certain amount as alimony, directed to be paid by final judgment; and that he give security for the 'future payment of said alimony ; and in default thereof, that an attachment issue, punishing him as for a contempt of court.
Thomas J. McKee, attorney, and of counsel, for appellant, urged:
I. Proceedings for a contempt of court, having in view the commitment of the defendant to close custody, cannot be had for disobedience of a final judgment, where, by law, an execution can be awarded for the collection of a sum of money, directed and ordered to be paid by such final judgment (Code Civ. Pro. § 14, subd. 3; Lansing v. Lansing, 4 Lans. 371 ; 2 R. S. Edm. ed. c. 8, tit. 13).
II. Under a judgment and decree in a divorce suit, a vinculo matrimonii, ordering and directing the payment of alimony, judgment may be entered from time to time for the alimony accruing under such final judgment, and an execution issued thereon for the collection of the same (Miller v. Miller, 7 Hun, 208 ; Marsh v. Marsh, Daily Reg. January 16, 1879).
III. The order appealed from, ordering and directing the defendant to give security for the future payment of said $600, alimony, is erroneous, and utterly void. The jurisdiction of the court over the parties to this suit terminated with the entry of final judgment, except to enforce the judgment as rendered. The relation of husband and wife, is terminated by the decree (Kamp v. Kamp, 59 N. Y. 212 ; Leitch v. Cumpston, 4 Paige Ch. 476 ).
Robert W. Todd, attorney, and of counsel, for re
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spondent, urged:
I. (a) The defendant, by committing adultery, subjected himself and his property to the jurisdiction of the court, so far as to enable the court to order his property to be applied to the support of his family, both during the litigation and afterwards. And the power of the court extends to compelling the defendant to apply a portion of his daily earnings to the same object (Kirby v. Kirby, 1 Paige, 261; Lawrence v. Lawrence, 3 Id. 267; Bishop on Marr. & Div. 5 ed. §§ 446, 447, 481; Ford v. Ford, 41 How. Pr. 169 ; Cary v. Cary, 2 Daly, 425 ). (b) The court, in granting a decree of divorce, at the suit of the wife, is authorized to make a decree, or order, compelling the defendant to provide such suitable allowance to her, for her support, as the court may deem just, having regard to the circumstances of the parties respectively (3 R. S. 6 ed. p. 156, § 58). This order, or decree, the court may enforce by sequestration (Id. p. 159, § 74). Sequestration, in the court of chancery, was not in the nature of an execution against property. It was a process which issued where a party was in contempt; its object was to compel obedience to the orders of the court, and it issued, sometimes, when the party was in custody for contempt, and persisted in his contempt. It did not require the collection of any definite amount, but commanded the sequestration to take all the personal property, and all the rents and profits of the real estate (1 Barb. Ch. Pr. 67; 2 Id. 382; Bouv. Law Dic. “ Definition”), (e) The counsel for the appellant may claim that this case comes under subdivision 3 of section 14 of the Code of Civil Procedure, being for the non-payment of a sum of money, and that an attachment cannot issue, because an execution can be awarded. But it has already been shown that sequestration is not an execution for the collection of a sum of money, but is a process of punishment for contempt ; so that it is not apparent, from the provisions re
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lative to divorce, that an execution for alimony can be awarded ; and, again, subdivision 8 of section 14 of the Code of Civil Procedure retains attachments and proceedings for contempt as they have been usually adopted and practiced.
When, in a decree for a divorce, the court awards alimony, the court decides that in the circumstances of the parties, respectively, it is the duty and in the power of the defendant to pay to the plaintiff the amount allowed for her support; as it was his duty to support her while she remained his undivorced wife, so it continues to be his duty now that, for his fault, she has been relieved from" her marriage duties. His failure to do this is a violation of duty, and a contempt of court, unless excused by inability ; this is not the case of a debt which a defendant owes, whether or not he has the means of paying; but on the basis, partly of the defendant’s property, and partly of his ability to earn money, the court decides that he can pay, and ought to pay, so much towards the support of the woman whom he has wronged.
II. The defendant should be compelled to give security for the payment of the alimony awarded to the plaintiff herein.
This is expressly provided for by statute, as follows:
“Whenever the court shall make an order or a decree, requiring a husband to provide for the maintenance of his children, or for an allowance to his wife, the court may require such husband to give reasonable security for such maintenance and allowance ” (3 R. S. 6 ed. p. 159, § 74; Forrest v. Forrest, 3 Abb. Pr. 144 ; Davis v. Davis, 1 Hun, 444 ).

This was an action for divorce a vinculo. In 1871 the plaintiff had judgment in her favor, among other things, ordering and adjudging that the defendant pay to the plaintiff, there

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after, $25 each week for her support. This was paid until 1878, when there were arrears. On August 21, 1878, the plaintiff entered a judgment against defendant, in the sum of $576, as the arrears of the alimony. No question is made, on this appeal, of the regularity of either judgment. An execution against the property of the defendant was returned unsatisfied, and he was examined in proceedings supplementary to the execution. His examination did not show that he had money or property, which the court could order him to apply to the judgment.

On all the proceedings, and a demand and refusal to pay, the defendant was ordered to show cause “ why he should not be punished for his misconduct in disobeying ” the order “ and judgment of this court by not paying the alimony, by said order and judgment directed to be paid to plaintiff, and why he should not give security for the future payment of said alimony.”

The order made thereupon was, that the defendant pay to the plaintiff, “ within ten days after the service of a certified copy of this order upon him, the alimony due and owing under the judgment of July 28,1871, from August 18, 1878, to the date of this order, to wit, the sum of $775. That from and after the date of this order and until the further order of this court, he pay to the plaintiff or her attorney, for and on account of the alimony directed to be paid by the judgment of July 28, 1871, the sum of $600 annually, in weekly payments, said payments to be on the Tuesday of each week; and that he give security for the future payment of said $600; and in default thereof, that an attachment issue, punishing said defendant as for a contempt of court.”

The final judgment was for the payment of money, by the defendant to the plaintiff. The money to be paid was not a specific fund. It was not to be paid to the court or to an officer of the court. If the court had

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exercised, at the time of final judgment, the power it possessed, of requiring the defendant to give reasonable security (3 R. S. 6 ed. 159; 2 R. S. 148, § 60), the provision in that respect would not have been a part of the judgment in the true sense, but only a means of enforcing the judgment.

The judgment might have been enforced by execution, and for that reason the court had no power to enforce it, in case of .disobedience in not giving the security or in not paying the money, by commitment for contempt (Code Civ. Pro. §§ 14, 1241). Evidently the court could not order the giving security only for the purpose of permitting the plaintiff to say that the disobedience was to an order that required security to be given, and was, therefore, for the doing of something else than the payment of money. The only ground, for a judicial direction is, either that such is the right or such the legal means of enforcing the right. Now, the statute, in permitting the court to require reasonable security, as a means of enforcing the order or judgment, does not permit a commitment for contempt; and the only result, incase of disobedience, is the application, through sequestration, of defendant’s property to the payment of . the allowance (see R. S., cited above). Lansing v. Lansing ( 4 Lans. 377 ) suggests all that has been said.

Moreover, if the consequence of disobedience is to be imprisonment, it is of the very first importance that the mandate be clear and definite. The order should specify the kind and quantity of the security ordered.

Order reversed, with $10 costs, and disbursements to be taxed.

Freedman, J., concurred.

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