Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

COLE v. COLE

August 13, 1946

COLE
v.
COLE



The opinion of the court was delivered by: HOLTZOFF

This is a motion to adjudicate the defendant guilty of contempt of court for his failure to make certain payments of alimony pendente lite.

An order made by this court on May 31, 1945, in an action for absolute divorce, directed the payment of alimony pendente lite at the rate of $ 100 a month. After a trial on the merits, the complaint was dismissed by a judgment entered on June 12, 1946. Installments of alimony which had accrued prior to the entry of final judgment, and which amounted to the sum of $ 475, remained unpaid. The judgment makes no reference to the subject of alimony or to the arrears. The defendant contends that he is under no obligation to pay the above-mentioned balance in view of the fact that the action has been determined in his favor by a final decree.

 The question presented is whether a final decree dismissing a divorce suit extinguishes the obligation to pay installments of alimony pendente lite which had accrued prior to the entry of the final judgment, or whether payment of the amounts due prior to the termination of the action may be compelled thereafter.

 The statute governing alimony pendente lite empowers the court during the pendency of a suit for divorce 'to require the husband to pay alimony to the wife for the maintenance of herself and their minor children committed to her care.' *fn1" The nature of an order directing the payment of alimony was described by the United States Court of Appeals for the District of Columbia, in Lesh v. Lesh, 21 App.D.C. 475, 484, as follows:

 'An order for the payment of alimony pendente lite, although merely an incident in all these proceedings, is in effect a final order. It is capable of being enforced by immediate execution, and, although it is revocable and may be rescinded by the court, and, although it may wholly fall by a final decision on the merits of the cause adverse to the petitioner, yet as long as it remains in effect to the extent to which it has been enforced by payment or execution, it is an absolute finality. Money so paid cannot be recovered back.'

 Consequently, as soon as an installment of alimony accrues in accordance with the terms of the order, a fixed and binding obligation arises to pay the amount due. Although after a final decision adverse to the wife, the order ceases to have any efficacy as to the future, the conclusion does not necessarily follow that any obligation previously existing becomes extinguished.

 This question was first presented to the United States Court of Appeals for the District of Columbia in Walter v. Walter, 15 App.D.C. 333. In that case a divorce suit brought by the wife was dismissed on the merits after a trial and a divorce was granted to the husband on a cross-petition. During the pendency of the action an order had been made directing the payment of alimony pendente lite. Subsequently to the entry of the final decree, the wife petitioned for a rule to show cause why the husband should not be required to pay arrears of temporary alimony that had previously accrued. The court held that the wife was not in a position to enforce an interlocutory order for the payment of alimony pendente lite which remained partially unexecuted at the time of the rendition of the decree dismissing her petition.

 The same problem was, however, confronted by the United States Court of Appeals again in Lynham v. Hufty, 44 App.D.C. 589, in which that Court reached the opposite conclusion. In that case also the wife sued her husband for divorce and the husband countered with cross-bill. The suit resulted in a final decree in favor of the husband. During the pendency of the action an order had been made directing the payment of alimony pendente lite. Subsequently to the final judgment, a proceeding was brought to compel the husband to pay installments of alimony which had accrued prior to the disposition of the action. The court held that the obligation survived and was enforceable. Mr. Justice Van Orsdel made the following observations on this point (44 App.D.C.at page 593):

 'Strictly speaking, any order or decree made between the parties in a pending suit before final judgment is interlocutory. But, though interlocutory in nature, it may be final as to matters disposed of to the extent that it is enforceable, independent of the final determination of the general matters in controversy. In other words, a judgment, though interlocutory with relation to the final disposition of a suit, may be treated as final and as possessing all the elements of a final and as possessing all the elements of a final judgment if it settles the disputes of the parties as to the particular matters in issue in the interlocutory proceeding and leaves nothing further for consideration.'

 The learned justice referred to Walter v. Walter, supra, and held it inapplicable. He stated (44 App.D.C.at page 597):

 'But the Walter Case was decided in 1899. With the adoption of the Code final effect was given to any unconditional decree for the payment of money. Sec. 1104 of the District Code (31 Stat.at L. 1362, chap. 854), under the general head of 'Execution' provides: 'The foregoing provisions shall be applicable to an unconditional decree in equity for the payment of money. Such decree may be revived by scire facias, and the same writs of execution may be issued thereon within the same time and have the same effect as liens, and shall be executed and returned in the same manner as if issued upon a common-law judgment.'

 'Though not referred to in the Lesh Case, which was decided since the adoption of the Code, the foregoing section may well have been in the mind of the court in impressing a decree of finality upon a mere decree for the future payment of temporary alimony.'

 In Lynham v. Hufty, the court also referred to the fact that a judgment had been entered for the unpaid balance, while such a step was not taken in the Walter case. This difference as to an incidental fact is hardly a distinction in principle, since the right arose and became vested when the payments became due under the original order, rather than when the judgment was entered.

 It seems clear, therefore, that Walter v. Walter must be deemed to have been overruled by Lynham v. Hufty, and that, consequently, installments of temporary alimony previously accruing are collectible after ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.