Lally v. Lally ( 1913 )

Tbe following opinion was filed November 19, 1912:

ViNJE, J".

Tbe plaintiff claims tbe judgment entered was for alimony; tbe defendant, that it was a final division of bis estate. If it was a judgment for alimony, then it may be modified at any time upon tbe application of either party. Sec. 2369, Stats. (1898); Campbell v. Campbell, 37 Wis. 206; Thomas v. Thomas, 41 Wis. 229. If it was a judgment decreeing a final division of defendant’s estate, then tbe court has no power to modify it after tbe term. Sec. 2369, Stats. (1898); Bacon v. Bacon, 43 Wis. 197, 206; Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028. It cannot be both. Von Trott v. Von Trott, 118 Wis. 29, 94 N. W. 798; Kistler v. Kistler, supra.

Sec. 2364, Stats. (1898), provides that in lieu of alimony tbe court may “finally divide and distribute tbe estate, both real and personal, of tbe husband . . . between tbe parties and divest and transfer the title of any thereof accordingly.” Was such a division, distribution, and transfer made by tbe judgment in the present case ? True, the trial court said so in the judgment when it was rendered and it said so when the order dismissing the petition was entered. In cases of doubt great weight should be aecordéd the recitals in the judgment, but they cannot be permitted to override the plain commands of the statute, nor can they change the inherent qualities of the judgment rendered. If the judgment in fact makes no final division of the husband’s estate, it is not a judgment of final division though so named therein. The label may be useful in ascertaining what kind of judgment is rendered, but it is not conclusive. If the judgment rendered bears all the characteristics of a judgment for alimony and contains none of the essential requisites of a judgment of final division, then it is of little importance what name it gives itself. The judgment rendered-provides (1) for the payment, monthly, by the husband, his heirs, executors, and administrators, of $300 to the wife; (2) that such payments are to cease upon the death or remarriage of the wife; and (3) that upon a refusal or neglect of the husband to make the adjudged payments the plaintiff may apply to the court for an order for the enforcement of the same. These are all the provisions the judgment makes in respect to the husband’s estate. Tested by the statutes and decisions they are all essential characteristics of a judgment of alimony, to wit, monthly payments, ceasing upon death or remarriage and enforceable by further application to the court. It is true the provision for payment by his heirs, executors,- and administrators does not harmonize with the idea of alimony, for that ceases upon the death of the husband. Campbell v. Campbell, 37 Wis. 206; Maxwell v. Sawyer, 90 Wis. 352, 63 N. W. 283. But in view of the failure of the judgment to meet the requirements of the statute relating to a final division of the husband’s estate, that cannot be considered very significant. It was probably tbe result of inadvertence, perhaps of babit, for the words “his heirs, executors, and administrators” are' customarily linked with the name of an ob-ligor. In any event it is a nullity, for alimony is not a charge upon the husband’s general estate. Campbell v. Campbell, 37 Wis. 206. It may be made a charge upon specific real estate owned by him. Sec. 2367, Stats. (1898). The judgment fails to comply with the statute because (1) it does not divide the estate between the parties; (2) it does not distribute it between them; and (3) it does not divest and transfer the title of any thereof to the wife. She is given no estate that she can own, control, mortgage, sell, or bequeath. For, confessedly, monthly payments ceasing upon either of two such uncertain contingencies as marriage and death are not very valuable assets to offer in the financial market, and are not subjects of a bequest in a will, as they cease upon the death of the testator. It was held in Kempster v. Evans, 81 Wis. 247, 51 N. W. 327, that an instalment of alimony to be paid the wife was not assignable before due. The same rule might perhaps be applicable to the payments provided for in this judgment, even if it were held to be a division of property, on the ground that each payment is no-more than necessary for the support of the wife and child until the next one falls due. The statute contemplates that when a wife is given a portion of her husband’s estate as a final division of his property such portion should by the judgment be transferred and set over to her to be and become her separate estate, subject to her control and dominion, and capable of being disposed of by her will or otherwise. It is true the wife’s portion may be required by the court to be paid to her in any reasonable number of payments running-through a series of years, because of the hardship upon the husband to pay it in one or several payments within a short time. But the number of payments, their time of commencement and termination, must be fixed by the judgment. They cannot rest upon any contingency nor be made defeasible by remarriage. Such provisions for a number of payments, however, do not prevent the wife from ascertaining, when the judgment is rendered, just how much of the estate she gets or when she is to receive it. Nor do they prevent her from mortgaging, selling, or bequeathing her portion. Such judgment i£ a division within the statute, and, like an ordinary money judgment, becomes a lien upon the husband’s estate, and may be enforced like any money judgment — not by an application to the court for a further order, in his discretion, as is provided for in the judgment in question.

Assuming, but not deciding, that the court could, as a final division of property, require the wife to take an annuity, still the payments provided for in the judgment cannot be regarded as an annuity within the meaning of the statute relating to a final division of the husband’s estate. It ceases upon remarriage. No final division of property under the statute can be made so that the wife’s share reverts .to the husband upon her remarriage. Whatever is given her as her share of the property remains hers forever. She cannot be made to forfeit it by remarriage — not even if she remarries her former husband. Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028. The statute requires a final division, distribution, or transfer of title. Nothing less will satisfy it. Kempster v. Evans, 81 Wis. 247, 51 N. W. 327.

The findings show that the husband had an income of at least $10,000 a year and the wife none. The custody of one child was awarded to the wife and the custody of the other child to the husband. In view of his income and station in life, a monthly allowance of $300 to the wife would' seem to be only all adequate amount for her support and for the maintenance and education of the child whose custody was awarded to her. Payments made for support, whether in a gross sum or at stated intervals, must be regarded as alimony. Brenger v. Brenger, 142 Wis. 26, 125 N. W. 109.

If it be urged and conceded that a final division of property in the form of monthly payments during life or widowhood is more advantageous to the wife than the receipt of a gross estate at once, the answer is that the statute does not contemplate or permit such a judgment, and no judgment of final division not within the statute can lawfully be made. Bacon v. Bacon, 43 Wis. 197; Brenger v. Brenger, supra.

If the judgment be one for alimony, then the stipulation of the parties, recited by the trial court, that the sum of $3,600 per year be accepted as an absolute, full, and final division of the estate, is not a bar to the modification of the judgment. In Blake v. Blake, 68 Wis. 303, 32 N. W. 48, the wife stipulated to receive $2,000 in full of alimony and for a full share of her claim in and to any property of which the husband had been seised during coverture. But it was held such stipulation did not preclude the court from afterwards modifying the judgment, which was construed to be for alimony. See, also, Blake v. Blake, 75 Wis. 339, 43 N. W. 144.

That the legal effect of the judgment must govern and not the mere language used therein was decided as early as Bacon v. Bacon, 43 Wis. 197. In that case the judgment awarded “as further allowance and alimony to the plaintiff” the sum of $2,750 in money out of the husband’s estate. Chief Justice RyaN, in speaking of this part of the judgment, says:

“It is quite apparent that the original judgment of the court below was framed upon a different theory, and regards both the real and personal estate assigned to the wife as alimony. Indeed it expressly so calls them. But this is a patent and mere misuse of the word, not affecting the legal construction of the judgment. The words, alimony and allowance, used in it, are superfluous. The judgment must be taken according to its legal effect as judgment for division and distribution between the parties of the husband’s estate, real and personal.”

So, also, in Kempster v. Evans, 81 Wis. 247, 51 N. W. 327, the judgment awarded to tbe wife $1,000 annually “as ■alimony for ber personal support and maintenance,” payable as designated during her natural life in ease she remain unmarried. It further declared that such judgment for alimony should “be and stand as a final division of property between the plaintiff and the defendant.” The court held that this was not a final division of the husband’s estate because the payment or allowance was liable to be terminated at any time by marriage, and further, because it did not undertake to make the final division and distribution of the husband’s estate contemplated by the statute, so as to vest in the wife any absolute and irrevocable right, title, or interest in any portion of such estate, or to vest the title thereof absolutely and irrevocably in the husband, so as to preclude the court from thereafter modifying said judgment and making other provision for the wife. In Von Trott v. Von Trott, 118 Wis. 29, 94 N. W. 798, the judgment decreed “that the said defendant pay to the said plaintiff the sum of $3,900 out of said defendant’s estate as alimony, support, and maintenance and as a full and final division, partition, and distribution of said estate.” It was held that the judgment was one of final division and not of alimony. In Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028, a judgment reciting that it was for “permanent alimony and division of property” was construed to be a judgment of final division. So it will be observed that, whether the recitals in the judgment as to what kind of a judgment it is are consistent or inconsistent with themselves, the court must look to the legal effect of the decree and determine from such effect what was in fact the judgment rendered. Tested by this rule it seems clear that the legal effect of the judgment under consideration was the granting of alimony and not the division and distribution of the husband’s estate. The court therefore erred in dismissing the petition on tbe ground that it had no jurisdiction to alter or modify the judgment after the term at which it was rendered.

By the Court. — Order reversed, and cause remanded for further proceedings according to law.