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 the entry of a final judgment dismissing the action.
The recent ruling of the United States Court of Appeals in Holmes v. Holmes, App. D.C., 155 F.2d 737, dealt with a different problem. In that case a decree for a limited divorce provided for the payment of alimony. Subsequently, the decree was enlarged into a judgment for absolute divorce. The second decree was silent on the subject of alimony. An attempt was made to collect alimony pursuant to the first decree for a period subsequent to the date of the second decree.
The court held that the obligation to pay alimony merged in the final decree insofar as concerned the future. The question whether alimony previously accrued if unpaid would have been collectible, was not involved and was not discussed
Several States have held that alimony pendente lite accruing prior to a final judgment dismissing the action, is collectible even after the entry of the decree. Thus, in Caldwell, v. Caldwell, 189 N.C. 805, 813, 128 S.E. 329, 334, the Court stated:
'The termination of the action, by judgment of nonsuit or upon a verdict, does not affect liability of husband for alimony pendente lite, due at date of judgment.'
In Grattage v. Superior Court, 42 R.I. 546, 551, 109 A. 86, 88, the same doctrine was applied. The court made the following statement on this point:
'In the case at bar the respondent was ordered to fulfill an obligation imposed upon him by law, namely, to provide for the support of his wife. At the time of the hearing on the petition he was in default but made no application to the court for a modification of the order for alimony. The petitioner was a creditor of the respondent to this extent: That she was entitled to bring a suit at law as for a debt, or to have an execution at law issue against the respondent. The extent of the obligation and the time for its discharge had been fixed by the court. Until this order was changed by the court, the legal obligation of the respondent to his wife was established, and was not dependent on further proceedings in the action for divorce, and consequently is not affected by the decision in this cause on the petition.'
The opposite result was reached by the Supreme Court of Florida in Duss v. Duss, 92 Fla. 1081, 1091, 111 So. 382. This conclusion was, however, predicated on the postulate that the wife acquires no vested right under an interlocutory order for the payment of temporary alimony. The law of this jurisdiction is to the contrary, Lesh v. Lesh, supra; Lynham v. Hufty, supra. Consequently, Duss v. Duss is not apposite.
On principle, the husband becomes liable for the payment of installments of alimony as they accrue. The wife was a vested right to collect them. The wife has a vested right to collect them. The obligation is enforceable by execution, by sequestration or by contempt proceedings. Failure to make the payments constitutes a serious default. To hold that the husband is relieved of the obligation and that the debt becomes extinguished if the action is later dismissed, would be to permit the husband to profit by his own wrong, and to gain by his neglect of a duty imposed by an order of the court. No reason is perceived why the husband should derive an advantage from his refusal to make payments directed by the court. The attitude of the husband is not to be commended, as he flaunts his own failure to obey punctually an order of the court as an excuse for not paying money which the court directed him to pay. Tardiness in meeting an obligation should not result in a cancellation of the debt. Otherwise a premium would be placed on wilful disobedience of judicial decrees.
The defendant is adjudged guilty of contempt of court for failure to pay the arrears of temporary alimony accruing prior to the date of the final decree and amounting to the sum of $ 475. He will be committed to the custody of the Marshal for a period of 30 days unless he makes the payments due within the time to be specified in the order of the court. Submit proposed order.