Bacon v. Bacon

43 Wis. 197

• Court: Wisconsin Supreme Court
• Decided: August 15, 1877
• Status: Published

Opinion

Ryan, C. J.

After this appeal had been argued on the merits, we directed a reargument on the question whether the original judgment is one for alimony under sec. 24, remaining within the revising power of the court below, or for division aud distribution of the husband’s estate under sec. 29, ch. 111, R. S., and therefore final.

“ It is an undoubted general principle of the law of divorce in this country, that the courts, either of law or equity, possess no powers except such as are conferred by statute; and that, to justify any act or proceeding in a case of divorce, whether it be such as pertains to the ground or cause of action itself, to the process, pleadings or practice in it, or to the mode of enforcing the judgment or decree, authority therefor must be found in the statute, and cannot be looked for elsewhere, or otherwise asserted or exercised.” Barker v. Dayton, 28 Wis., 367. The nature of the judgment and any power of the court over it must, therefore, be determined by the construction of the statute itself.

It may aid the construction, however, to remember that, on divorce, the English courts gave the wife alimony only, always subject to a continuing power of revision by the court; and that such a thing as partition of estate was unknown in the law of divorce. As will be presently seen, our statute of divorce very closely follows the practice of the English courts in respect to alimony.

Rut in Donovan v. Donovan, 20 Wis., 586, this court held that, besides the ordinary power to give alimony, the statute gave anew and extraordinary power to provide for partition of estate between the parties. It was held that the court, granting a divorce, is not only authorized to give the wife alimony proper, either payable like an annuity or in a gross sum out of the husband’s estate, under sec. 21; but also has power, under sec. 29, to provide for division and distribution between the parties of the real and personal estate of the husband. I have always regarded the power to divest the husband of his title to realty in favor of the wife, as resting on a rather strained construction of sec. 29; and, if it were now an open question, I cannot say that I could find warrant for the power in the language of the section. The rule, however, was established some twelve years,ago, has been repeatedly followed, and must now be taken as the settled rule of this court.

In that case, however, the distinction between alimony proper, payable out of the husband’s estate, and division and distribution of his estate between the parties, is clearly pointed out. The power to divest the husband of his realty is rested exclusively on sec. 29; and it certainly can be found nowhere else in the statute.

Sec. 21, so far as it has relation to the subject, is restricted in terms to personal property. It authorizes the court to adjudge to the wife part of the personal estate of the husband and alimony out of his estate. The part of the personal estate here intended is presumably confined to specific chattels, other than money; alimony being intended to cover all provision for money. Alimony is not an estate; not a portion of the husband’s estate to be assigned to the wife as her own. It is .an allowance out of the husband’s estate for the nourishment of the wife, resting in discretion, variable and revocable. Campbell v. Campbell, 37 Wis., 206. As the authorities cited in that case sufficiently show, alimony is a technical word, theoretically restricted to personalty and practically to money. It is payable out of the husband’s estate, real as well as personal; but the word never covers the estate itself. So sec. 24 makes it payable out of the husband’s estate; clearly excluding any transfer of his estate to the wife, except the part of his personalty previously and expressly authorized. So sec. 27 authorizes the court to sequester the husband’s personalty and the rents and profits of his realty, to enforce the payment of alimony. All this plainly shows that the framer of the statute perfectly appreciated the precise signification of the word, alimony, and dealt with it in its technical sense, as an allowahce to the wife payable in money out of the husband’s estate; excluding, ex vi termini, transfer to the wife of the husband’s estate itself, real or personal.

Except, therefore, such part of the husband’s personalty as. may be given to the wife together with alimony out of his estate, sec. 24 excludes partition between the parties of the husband’s estate, real or personal. And the power to make partition of the husband’s estate in favor of the wife must be found, as Donovan v. Donovan found it, in sec. 29.

As already indicated, alimony always rested in discretion, was variable and revocable; subject to the continuing authority of the court over it, to be exercised from time to time, in view of changes in the premises on which it had been granted. Campbell v. Campbell, supra. So sec. 28, still dealing with alimony in its proper, technical sense, authorizes the revision of the" judgment granting it, and such new judgment for it, from time to time afterward, as the court might have originally made. Helden v. Helden, 7 Wis., 296; Williams v. Williams, 29 id., 517; S. C., 36 id., 362; Campbell v. Campbell, supra; Hopkins v. Hopkins, 40 Wis., 462; Thomas v. Thomas, 41 id., 229.

Except secs. 25 and 26 relating to the kindred subject of dower in certain cases, all the sections from 24 to 28, both inclusive, make provision for alimony to the wife, for the support of herself and children committed to her care. All the effective provisions for alimony proper precede sec. 28; and sec. 28 crowns them with the continuing power of the court; so far closely following the English law of alimony. Then comes sec. 29, which was found to introduce the new provision for division • and distribution of the husband’s estate, real and personal. This section indeed declares that the court shall regulate the allowance for alimony to the wife and children committed to her care, according to equity; but it does not aid or enlarge or restrain the power to grant and regulate alimony given in the previous sections. All the provisions for alimony, and allowance in the nature of alimony, are complete without it. And so far as it relates to alimony, the section is chiefly noticeable for the distinction which it makes between alimony and division and distribution of estate; expressly recognizing them as essentially different things.

So far as it is applicable to the question here, see. 28 provides that, after judgment for alimony or other allowance for the wife and children, the court may, from time to time, on the petition of either party, revise and alter such judgment in respect to the amount of such alimony or allowance, and the payment thereof, and may make any judgment respecting the same which might originally have been made.

If judgment for division and distribution of estate under sec. 29, once made, can be revised or changed at a subsequent term, it must come within the continuing power of sec. 28. Except in cases coming within some statutory power, it is the settled law of this court that the courts of this state possess no such power over their judgments, after the term at which they are rendered. Ætna Ins. Co. v. McCormick, 20 Wis., 265; Salter v. Hilgen, 40 id., 363; and many intermediate cases. This is the general rule in all common-law courts, everywhere, older than Termes de la Ley, where it is stated. “Where any judicial act is done during the term, the record remains in the breast of the judges, and within their remembrance, and therefore the roll is alterable during the term as the court shall order. But when the term is ended, the record is in the roll, and will not admit of any alteration, amendment or proof to the contrary.”

This Court has therefore held that, while judgment for alimony remains always within the revising power of the court, under sec. 23, judgment for division and distribution of estate, under sec. 29, is final between the parties, as any ordinary judgment; as judgment for divorce itself. Campbell v. Campbell, Hopkins v. Hopkins, supra.

This rule was assailed by the learned counsel for the respondent, who insisted that the question must be regarded as an open one. They accordingly argued that judgment for division and distribution of estate could not be final, after the term, unless the statute expressly provides that it should be so. The difficulty there is, that such a judgment must be final under the general rule after the term, unless the statute expressly take it out of the rule, by giving the court a continuing power over it. And so the’learned counsel also took the position, that such a judgment comes within the grant of revising power in sec. 28.

In support of that position, we were urged to disregard the technical meaning of alimony, and to apply it to any provision of property, real or personal, for the wife. We have already seen that this would be a gross joerversion of the word, which no safe rule of construction could tolerate. The ancient canon of construction, that technical words shall bear their technical meaning, is now a statutory rule. And we have already seen that the framer of the statute here was familiar with the technical meaning of alimony, and intelligently used it throughout in its precise, technical sense.

But sec. 28 gives a continuing power to the court over judgments for alimony or other allowance for the wife and children. And the learned counsel contended that the word, allowance, which is not technical, is sufficiently broad to cover division and distribution of estate, real or personal. We cannot think so. The classical sense and common use of the word, allowance, in this application, make it almost equivalent to alimony in its legal, technical sense. This is aptly illustrated in a work remarkable for its accurate use of words, the authorized English version of Holy Scripture, in a passage cited by Dr. Johnson, for example of the meaning of allowance in this use. “And he did eat bread continually before him all the days of his life. And his allowance was a continual allowance given him of the king, a daily rate for every day, all the days of his life.” 2 Kings, XXY, 29, 30. Like alimony, allowance precludes estate. Like alimony, allowance is continuing provision for nourishment; applied to children, for nurture, in the technical sense of that word. And this use of the word in the statute appears to be in the latter sense. In this sense, it is twice used in the statute, both times coupled with alimony, and both times in reference to children. Secs. 27 and 28 have the phrase, alimony or other allowance for the wife or children. Here alimony appears to follow its proper sense as provision for the nourishment of the wife, and allowance to be coupled with it as provision for the nurture of children. And we find no other such use of the word, except in the repetition, such alimony or allowance, in the same application, in the same sections.

Secs. 24 and 33 not inaccurately use the phrase, support and maintenance, as equivalent to alimony and to nurture. Sec. 23 also uses the same words, not indeed as equivalent to alimony, but in the sense of nourishment.

Sec. 29 less precisely, hut perhaps not altogether inaccurately, and quite intelligibly, speaks of allowance for alimony to the wife and children. These words and phrases all speak for themselves. There is no difficulty in determining their meaning. They are all clearly distinguishable throughout the statute from division and distribution of estate; all clearly exclude division and distribution of estate. Indeed the only word in this connection in the statute, of at all doubtful meaning, is mbsistence, in secs. 26 and 31. We need not pause to consider its scope; though it seems to be so used in both sections as to include estate as well as income, and the word may be broad enough for the purpose.

We have considered the wording of the statute thus minutely and carefully, for the purpose of showing that the word, allowance, in sec. 28, cannot include division and distribution of estate, under sec. 29, and was not intended to include it. The continuing power of revision over judgment for alimony, given to the court by sec. 28, does not extend to judgment for division and distribution of estate. And it appears to us that the reason is not far to find.

Alimony rests upon the dependence of the wife on the husband, and the duty and ability of the husband to support her. Divorce does not determine the dependence or the duty, though it change the manner of them. As in marriage, so in divorce, circumstances vary the measure of support. The husband may be more or less able, the wife more or less in need. Indeed, the ability of the husband, happily called his faculties by the English courts, may altogether fail; and the wife may become altogether independent of his support. The rule of alimony follows the nature of the support for which it goes. And when courts, after divorce, enforce the husband’s duty and provide for the wife’s need by alimony, they hold the measure of it as essentially variable, and therefore subject from time to time to modification, suspension, renewal and revocation. Such were the view and practice of the English courts, followed and embodied in our statute of divorce. Campbell v. Campbell, supra.

Alimony, however, presupposes the husband to retain his estate, and is payable out of it. It is because the husband retains his estate, upon divorce, that alimony is necessary to the wife. If the wife have adequate estate of her own, she has no claim for alimony, either by the English rule or under sec. 24 of our statute. For the right of the wife and the duty of the husband are enforced only upon his ability and her inability. So, if the wife had no adequate estate before, but judgment of divorce endow her with one, her right to alimony ceases. It would be unjust that she should share the husband’s estate, and yet retain her right to support out of his estate; unjust that the husband should furnish the wife an estate to support herself, and yet be held to support her. It is to be presumed that division and distribution of estate, under the statute, is adequate for the wife; if inadequate, it ought not to be made. Division and distribution of estate, therefore, is a substitute for alimony, extinguishing the right to it, by making the wife independent of the husband’s faculties. And because it is essentially a complete and permanent provision, in lieu of the transitory provision of alimony, the statute makes it final by withholding the power of revision over it.

The husband’s estate of which division and distribution may be made, may be real or personal, or both. "When judgment of divorce awards personalty only to the wife, whether payable like an annuity or in a gross sum, it is prima facie for alimony; and if it be intended to operate as a division and distribution of estate, the judgment must so declare. Then only will it be final. Hopkins v. Hopkins, Thomas v. Thomas, supra. But if judgment of divorce divest the husband of his title to realty, transferring it to the wife, it is necessarily division and distribution of estate, ex proprio vigore final. For it is only under the power to make division and distribution that the court can transfer realty of the husband to the wife.

This has not always been understood or expressed as clearly as it might have been. And doubtless incidental inaccuracies of expression may be found in some of the cases. That may unfortunately happen on all subjects. But whenever the question has been directly before the court, there is no ruling in conflict with the position now held. If there were, our views áre so clear that we could not hesitate to overrule a case in conflict with them. •

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. The court had no power to render the judgment transferring the husband’s realty to the wife, except under see. 29, as partition of the husband’s estate between the parties. And it lost all power over the judgment, except to enforce it, after the term at which it was rendered.

There are circumstances in this case which may render it a hard one. On that we express no opinion. But it is our duty now, as always, to see that hard cases do not make bad law.

By the Court. — The judgment appealed from is reversed, and the cause remanded to the court below with directions to vacate it.