Summary
In Schaffer v. Schaffer, 209 Miss. 220, 46 So.2d 443, this Court held that "Defaulted installments of alimony can be recovered against the husband's personal representative."
Summary of this case from Rowell v. LoganOpinion
No. 37523.
May 22, 1950.
1. Decrees — alimony — divorce.
When in a divorce case two decrees bearing the same date are entered, one for alimony and the other for an absolute divorce, it will be presumed that the alimony decree was granted first.
2. Alimony — consent decree.
In a divorce case a decree for alimony, entered by consent prior to the decree of divorce, is conclusive and the wife has thereupon a vested right to the alimony so decreed.
3. Alimony — decree for — nature of the obligation.
While a decree for alimony imposes an obligation higher than an ordinary debt, defaulted installments of alimony may be recovered against the husband's personal representative and the claim therefor is probatable as a decree. Sec. 568 Code 1942.
4. Alimony — interest after due date.
As a general rule, interest runs on alimony after it is due.
5. Alimony — statute of limitations.
A decree for alimony is subject to the seven years statute of limitations which bars all claims for installments due for more than seven years on the date of the husband's death. Sec. 733 Code 1942.
6. Alimony — allowance against estate of deceased husband.
In allowing against the estate of a deceased husband all installments in an alimony decree which had become due within seven years next before his death, interest at the rate of six per cent per annum on each installment as it had matured should be added.
Headnotes as approved by Lee, J.
APPEAL from the chancery court of Perry County; LESTER CLARK, Chancellor.
Dudley W. Conner, for appellant.
It is conceded that part of the claim as presented by the claimant for probate, allowance and register is barred by the statute of limitations, and, as shown by the contest, the sum so barred amounts to $5,135.00. However, it is urged, not only upon the law but of good public morals, that the balance of the claim for alimony amounting to $5,395.00, plus the accrued interest at legal rate, is a provable debt against the estate of the deceased and should have been allowed by the chancellor. Sides v. Pittman, 167 Miss. 751, 150 So. 211; Hollis v. Bryan, 166 Miss. 874, 143 So. 687; Felder, et ux. v. Felder's Estate, et al., 13 So.2d 823.
In the face of such announcements by our courts that the wife's right to maintenance out of her husband's property is a "vested right" and that his duty in this regard is deemed by the law to be one of a higher degree than the ordinary contractual obligation, can it be seriously argued that a claim for unpaid alimony is of such a nature that it cannot be presented, allowed and registered as a debt against the estate of the deceased husband? De Marco v. De Marco, 24 So.2d 358.
In our search for authorities we have turned to decisions from other states which we think helpful. Hagedorn v. Hagedorn, 211 N.C. 175, 189 S.E. 507; In re Wakefield's Estate, 182 Wis. 208, 196 N.W. 541; In re Goeckel's Estate, 131 Pa. Superior 36, 198 A. 504; Commons v. Bragg, 80 P.2d 287; Corrigan v. Miller, 338 Ill. App.? 212, 86 N.E.2d 853; Renn v. Renn, 207 Ark. 147, 179 S.W.2d 657; Franklin v. Franklin, 28 N.Y.S.2d 195.
Our Court distinguished the doctrine of laches from the statute of limitations in the case of Vanlandingham v. Meridian Creek Drainage District, 191 Miss. 345, 2 So.2d 591.
In numerous decisions of this Court it has been held that the basis for an award for alimony is the marriage relation. In the very early case of Shotwell v. Shotwell, S. M. Ch. 51, as digested, the Court held while a decree awarding alimony to a wife who has been granted an absolute divorce from her husband results from a decree in her favor in the divorce proceedings, such adjudications are separate and distinct, and the one does not include the other.
Harmon Young, Ben Stevens, and L. Barrett Jones, for appellee.
We attack the probated claim on the ground that the decree for alimony is void because not incorporated in the original decree granting the divorce.
Whatever may have been the law at the time of the decision in Shotwell v. Shotwell, cited by counsel for appellant, we submit that today a divorce proceeding in this state is an entity and that all rights one expects to assert against the defendant must be charged, proved and recovered in one proceeding with one decree.
In the instant case two separate decrees were rendered on May 5, 1931; one granting a divorce to the complainant, the other granted the appellant alimony and support money for a minor child so long as she kept him in school or college. There is no way to tell which decree was signed first, but if the alimony decree was signed first it was void because there was no divorce decree of record and the suit is not for separate maintenance and support, but for divorce.
If the alimony decree was signed after the divorce decree, then it is void because as laid down in 22 C.J.S., par. 231, page 944, under the subject, "Divorce", it is a general rule that where a decree of absolute divorce has been entered and become final and absolute, and such decree does not award alimony, the wife may not be awarded alimony at any subsequent time.
This rule was recognized in Crawford v. Crawford, 130 So. 688, along with the fact that exceptional circumstances as was found in that case would permit the divorced wife to seek alimony after the decree. In that case the wife was confined to the State Insane Hospital and utterly unable to assert her rights.
Another ground of the contest is based on laches and the record would amply justify a decree based on the doctrine. Under the subject "Divorce", 27 C.J.S., par. 256, page 1034, the rule is laid down that the right to enforce a judgment or decree for alimony may be lost by laches and at page 1040 of the same volume the rule is laid down that contempt proceedings for nonpayment of alimony may be barred by laches.
The very Mississippi cases cited by appellant, particularly Sides v. Pittman, 150 So. 211 and Hollis v. Bryan, 143 So. 687, recognized that such a decree may be cut off by laches.
The further ground of the contest raises the question that since no monthly alimony decree is final under our law, that it does not create a final money judgment.
We now cite to the Court the case of Lee v. Lee, 182 Miss. 684, 181 So. 912, holding that a decree for alimony is never final, but always open to change.
We therefore submit with earnestness that a fluctuating right such as a decree for alimony cannot create a money judgment against the defendant which is final in the sense that it may be enforced after his death against his estate.
In this connection, in 27 C.J.S. under the subject "Divorce", par. 240, subdivision b, page 999, it is held that the right to receive alimony and a duty to pay it are generally considered as terminating on the death of either of the parties where no statute to the contrary exists and the decree is silent on the subject. We have no statute to the contrary and the decrees in this case are silent on it.
The contest raises the question that no decree for alimony bears interest.
Nothing but money judgments based on liquidated debts or torts which have been liquidated by judgment bear interest. The alimony decree which is not a judgment for a fixed and final amount, we submit can bear no interest, especially against the estate of the defendant, and we further submit, can bear no interest against him during his lifetime. The accumulated interest here would be nearly as much as the amount of the alimony claimed.
Mrs. J.C. (Katherine) Schaffer probated a claim for $16,341.04 against the Estate of John C. Schaffer. On a contest by the executrix, the court disallowed the claim in its entirety; and Mrs. Schaffer appealed.
The claim arose in this way: On May 5, 1931, a decree was entered by the Chancery Court of Perry County, in the case of J.C. Schaffer v. Mrs. J.C. Schaffer, which recited that an agreement had been previously entered into by the parties, and that Schaffer had executed and delivered a note for $2,200. The decree adjudged that he pay her monthly alimony of $125, as long as their son remained in college, or $100 monthly while the son was not in college. On the same date, another decree granted Schaffer an absolute divorce.
Subsequently, on November 4, 1931, on petition of Schaffer, the monthly alimony to her was reduced to $65. The decree adjudged that he was unable to pay more under the prevailing conditions. Thereafter, she instituted contempt proceedings on account of his failure to pay. The court heard the same, and on May 11, 1935, adjudged that he was in default for $2,270, and ordered him to pay her $100 within ninety days.
There were no proceedings of any kind thereafter — no other contempt action — no decree of modification — and no payment by him.
On May 1, 1947, Schaffer died testate. His will was admitted to probate on May 21st following. The inventory showed $15,300, with his widow as the principal beneficiary. The first notice to creditors was published October 10, 1947, and thereafter, on March 18, 1948, the appellant probated her claim on account of alimony at the rate of $65 per month from November 1, 1933, to April 30, 1947, making a total of $10,530. To this was added six per cent compound interest of $5,811.04, thus aggregating the amount of the probate claim.
A number of grounds were interposed against the allowance of the claim, with the result that it was disallowed, as above stated.
The arguments, pro and con, advance various reasons for overturning, and vice versa, for sustaining the decree. We have duly considered all of these contentions, and now cut through to the heart of the case.
(Hn 1) The decree for alimony recited that the agreement was made on "The — day of April 1931." Since this decree and the one for an absolute divorce bear the same date, it will be presumed that the former was granted first. Cf. Wilson v. Wilson, 198 Miss. 334, 22 So.2d 161, 23 So.2d 303. (Hn 2) This decree for alimony was conclusive. 27 C.J.S., Divorce, Section 251, p. 1027. The wife had a vested right to the decreed alimony. Guess v. Smith, 100 Miss. 457, 56 So. 166, Ann. Cas. 1914A, 300; Felder v. Felder's Estate, 195 Miss. 326, 13 So.2d 823. (Hn 3) While alimony is not a debt in the sense that a discharge therefrom can be obtained in bankruptcy, it is of a higher degree than an ordinary contractual obligation. Felder v. Felder's Estate, supra. Defaulted installments of alimony can be recovered against the husband's personal representative. 27 C.J.S., Divorce, Section 255, p. 1034; 17 Am. Jur. 504. The claim was probatable as a decree. Section 568, Code of 1942. (Hn 4) As a general rule, interest runs on alimony after it is due. 27 C.J.S., Divorce, Section 251, p. 1028.
However, (Hn 5) a plea in bar was interposed, and was effectual to bar all claims more than seven years old on May 1, 1947, the date of decedent's death. Section 733, Code of 1942; Hollis v. Bryan, 166 Miss. 874, 143 So. 687.
(Hn 6) The court was in error in disallowing the claim in its entirety. It should have been allowed to the extent of alimony at the rate of $65 per month for seven years, together with interest at the rate of six per cent per annum after the maturity of each installment in the aggregate of $6,606.60.
Consequently, the decree of the lower court is reversed, and a decree will be entered here to effectuate the decision of the Court, that is, a decree for the appellant in the sum of $6,606.60 as of the date of the decree appealed from. Of course, this amount will bear interest from that date at the lawful rate of six per cent per annum.
Reversed and rendered.