West v. Washburn

Houghton, J.: The plaintiff is a resident of California, and in an action brought against her by one Anna M. Morris for damages for alienating her husband’s affections, an attachment was issued to the defendant as sheriff of the county of Saratoga commanding him to attach such property of the plaintiff as he should find in his jurisdiction. By virtue of such writ the sheriff levied upon $1,500 past due alimony which had been paid by the plaintiff’s former husband from whom she had obtained a decree of divorce, in compliance with such decree, to a third party for plaintiff’s benefit, and. also upon $200 due upon a debt owing by him to her, as well as upon the plaintiff’s interest in a contract whereby her husband had agreed to turn over to her on the 1th day of December, 1914, $60,000 from a legacy then payable to him under the will of his father, which by contract the plaintiff had agreed to accept in lieu of further alimony provided to be paid by the decree. Thereupon the plaintiff brought this action to release from such levy the $1,500 due her as alimony from her husband on the ground that it was not subject to attachment in the kind of action which Mrs. Morris had brought against her and in which the attachment was issued. Neither the levy upon the $200 debt due from the husband to the plaintiff nor the levy upon her interest in the agreement to [462] accept $60,000 in lieu of further alimony is attacked, and the propriety of the levy as to those two items is not in controversy in the present action. The trial court found that the $1,500 of alimony, although past due, was not attachable and directed its release and enjoined the further attaching of any installments thereof. We think the judgment was right and that it should be affirmed. The authorities are clear that alimony as such cannot be attached in an action against the wife to whom it is awarded except in an action for such necessaries as the husband would be obliged to furnish had the marital relation continued. In Romaine v. Chauncey (60 Hun, 477; 129 N. Y. 566) it is held that alimony granted to a wife in an action brought by . her against her husband for divorce, is granted for the purpose of her support and that public policy will not permit it to be interfered with and diverted from that channel. . This principle was followed in Matter of Bolles (78 App. Div. 180) where the attorney sought to appropriate alimony for the payment of disbursements in the action itself, and in Matter of Brackett (114 App. Div. 257) where it was held that the wife could not make a valid contract with her attorney to give him a certain percentage of what she might receive for her support and maintenance in an action for separation from her husband. In Thayer v. Thayer (145 App. Div. 268), upon which the appellant relies, the court does use the expression that the amount due the wife for alimony is in the nature of a judgment debt against the husband. The question under consideration in that case, however, was whether or not a judgment should be entered, and it was only in justification of its entry that such language was used. The question of the character of the alimony and its attachability was not under consideration and the question here at issue was not there decided. The action in which the present attachment was issued was to recover damages for a wrong.' If no divorce had ever been granted to the plaintiff from her husband he would not have been liable to pay damages for her torts. He would have been hable for necessaries furnished to her which he had faffed to provide. The alimony which he was directed by the court to pay to her was in lieu of the furnishing of necessaries to her [463] a.nrl would have been attachable if the action had been brought against the plaintiff for necessaries, but was not attachable, the action being for a tort for which the husband was in no wise responsible. The main contention of the defendant, however, is that the semi-annual payments of $1,500, although called alimony and directed by the decree of divorce to be paid as such, were not alimony at all but were payments which the husband had agreed by contract with the wife to make to her, and hence were attachable. The interlocutory decree of divorce was granted on the 11th day of December, 1909, and was followed by a final decree granted on the 15th day of March, 1910. On the 10th day of November, 1909, presumably after the plaintiff’s action for divorce had been begun, the plaintiff’s husband transferred and set over to her $60,000 from his portion of the estate of his father, for her use during her natural life, with .the right to spend any part of the principal for her own use and benefit, which she might see fit, but if any part should remain unexpended at her decease the same to revert to the husband or his heirs or assigns. On the 11th day of December, 1909, the same day on which the interlocutory decree of divorce was granted, the plaintiff and her husband entered into an agreement in writing. This agreement recited the granting of the interlocutory decree and the direction for the payment of $3,000 a year alimony, and further recited as follows: “Whereas, the party of the second part [husband] desires the party of the first part [this plaintiff] to accept in lieu of alimony after the 1th day of December, 1914, a gross sum, to wit, sixty thousand dollars, in the manner provided by a certain conveyance made by the party of the second part to the party of the first part bearing date the 10th day of November, 1909.” Then followed an agreement to pay the alimony as stipulated by the decree, a ratification of the agreement of November 10, 1909, together with other instruments which had been executed between them, and the further agreement on the part of the husband to pay all household bills theretofore contracted, and rent to a certain . time, in consideration of all which the wife, this plaintiff, agreed to accept the $60,000 as provided in' the transfer of [464] November 10, 1909, as a gross sum in lieu of alimony after the 7th day of December, 1914. It is very plain that this' agreement was not intended and did not supersede the decree of divorce. So far as the payment of alimony up to the 7th day. of December, 1914, was involved the agreement was merely supplemental to the decree and subordinate to it. It was entirely unnecessary for the husband to agree to pay the alimony. The decree bound him to do that. The $1, 500 which was levied upon was paid as alimony and as directed by the decree. The apparent object of the agreement was the ratification of the various conveyances and agreements had between the husband and the wife, and the fixing of responsibility for household bills and rent and the agreement on the part of the; wife to accept the transfer of the $60,000 in lieu of alimony after the 7th day of December, 1914. It does not appear in the record why this latter date was selected, but presumably it was because on that date'some greater right would accrue to the husband under his father’s will than then existed. By the agreement of November 10, 1909, the transfer of the $60,000 interest is not postponed to a future time but apparently, takes effect at once. Notwithstanding this fact, however, although the trustees of the father’s estate had knowledge of the transfer because the plaintiff’s attorney was one of such trustees, still the plaintiff and everybody concerned assumed that the plaintiff was not entitled to the income of the $60,000 and it was paid over to her husband and he ■ in turn paid such part of it as was necessary to satisfy the provision for alimony. It chances that five per cent on" $60,000. amounts to $3,000 which was the amount of the alimony. But that fact does not make the payments which the husband made payments of interest instead of alimony, and we think the court was entirely justified in saying that the payments which the husband did make were payments in satisfaction of the decree and not a turning over of interest to the plaintiff Which she was already entitled to under the transfer of the $60,000 interest in his father’s estate. The facts in the case óf Andrews v. Whitney (82 Hum, 117) bear much similarity to those in the case at bar, and the decision illustrates not only the care with which the courts pre [465] serve alimony for the support of the wife and prevent its diversion to other sources, hut also the hesitancy which they manifest in permitting outside agreements to interfere with the decree of the court directing it to be paid. The action is in equity, and the defendant insists that the plaintiff must come into court with clean hands. If the moving affidavits in the attaching creditor’s action are to be taken as true, the present plaintiff would seem quite immoral, and it would be quite impossible to characterize her hands as clean. While equity does not employ itself in settling quarrels amongst rogues, still a rogue may have a clean cause of action, and it is with reference to the cause of action which he produces that the maxim of clean hands applies. So far as the present action is concerned the plaintiff was entirely within her rights in asking that the $1,500 of alimony be relieved from the levy of the attachment. As we have stated, the levy upon the $200 debt and the interest of the plaintiff in the $60,000 assignment from the estate of the father of the husband remains unaffected by this action or by our determination. The judgment should be affirmed, with costs. All concurred, except Kellogg, J., dissenting in opinion.