SCHAFFER v. SCHAFFER

Dudley W. Conner, for appellant.

It is conceded that part of the claim as presented by the claimant for probate, allowance and register is barred by the statute of limitations, and, as shown by the contest, the sum so barred amounts to $5,135.00. However, it is urged, not only upon the law but of good public morals, that the balance of the claim for alimony amounting to $5,395.00, plus the accrued interest at legal rate, is a provable debt against the estate of the deceased and should have been allowed by the chancellor. Sides v. Pittman, 167 Miss. 751, 150 So. 211; Hollis v. Bryan, 166 Miss. 874, 143 So. 687; Felder, et ux. v. Felder's Estate, et al., 13 So.2d 823.

In the face of such announcements by our courts that the wife's right to maintenance out of her husband's property is a "vested right" and that his duty in this regard is deemed by the law to be one of a higher degree than the ordinary contractual obligation, can it be seriously argued that a claim for unpaid alimony is of such a nature that it cannot be presented, allowed and registered as a debt against the estate of the deceased husband? De Marco v. De Marco, 24 So.2d 358.

In our search for authorities we have turned to decisions from other states which we think helpful. Hagedorn v. Hagedorn, 211 N.C. 175, 189 S.E. 507; In re Wakefield's Estate, 182 Wis. 208, 196 N.W. 541; In re Goeckel's Estate, 131 Pa. Superior 36, 198 A. 504; Commons v. Bragg, 80 P.2d 287; Corrigan v. Miller, 338 Ill. App.? 212, 86 N.E.2d 853; Renn v. Renn, 207 Ark. 147, 179 S.W.2d 657; Franklin v. Franklin, 28 N.Y.S.2d 195.

Our Court distinguished the doctrine of laches from the statute of limitations in the case of Vanlandingham v. Meridian Creek Drainage District, 191 Miss. 345, 2 So.2d 591.

In numerous decisions of this Court it has been held that the basis for an award for alimony is the marriage relation. In the very early case of Shotwell v. Shotwell, S. M. Ch. 51, as digested, the Court held while a decree awarding alimony to a wife who has been granted an absolute divorce from her husband results from a decree in her favor in the divorce proceedings, such adjudications are separate and distinct, and the one does not include the other.

Harmon Young, Ben Stevens, and L. Barrett Jones, for appellee.

We attack the probated claim on the ground that the decree for alimony is void because not incorporated in the original decree granting the divorce.

Whatever may have been the law at the time of the decision in Shotwell v. Shotwell, cited by counsel for appellant, we submit that today a divorce proceeding in this state is an entity and that all rights one expects to assert against the defendant must be charged, proved and recovered in one proceeding with one decree.

In the instant case two separate decrees were rendered on May 5, 1931; one granting a divorce to the complainant, the other granted the appellant alimony and support money for a minor child so long as she kept him in school or college. There is no way to tell which decree was signed first, but if the alimony decree was signed first it was void because there was no divorce decree of record and the suit is not for separate maintenance and support, but for divorce.

If the alimony decree was signed after the divorce decree, then it is void because as laid down in 22 C.J.S., par. 231, page 944, under the subject, "Divorce", it is a general rule that where a decree of absolute divorce has been entered and become final and absolute, and such decree does not award alimony, the wife may not be awarded alimony at any subsequent time.

This rule was recognized in Crawford v. Crawford, 130 So. 688, along with the fact that exceptional circumstances as was found in that case would permit the divorced wife to seek alimony after the decree. In that case the wife was confined to the State Insane Hospital and utterly unable to assert her rights.

Another ground of the contest is based on laches and the record would amply justify a decree based on the doctrine. Under the subject "Divorce", 27 C.J.S., par. 256, page 1034, the rule is laid down that the right to enforce a judgment or decree for alimony may be lost by laches and at page 1040 of the same volume the rule is laid down that contempt proceedings for nonpayment of alimony may be barred by laches.

The very Mississippi cases cited by appellant, particularly Sides v. Pittman, 150 So. 211 and Hollis v. Bryan, 143 So. 687, recognized that such a decree may be cut off by laches.

The further ground of the contest raises the question that since no monthly alimony decree is final under our law, that it does not create a final money judgment.

We now cite to the Court the case of Lee v. Lee, 182 Miss. 684, 181 So. 912, holding that a decree for alimony is never final, but always open to change.

We therefore submit with earnestness that a fluctuating right such as a decree for alimony cannot create a money judgment against the defendant which is final in the sense that it may be enforced after his death against his estate.

In this connection, in 27 C.J.S. under the subject "Divorce", par. 240, subdivision b, page 999, it is held that the right to receive alimony and a duty to pay it are generally considered as terminating on the death of either of the parties where no statute to the contrary exists and the decree is silent on the subject. We have no statute to the contrary and the decrees in this case are silent on it.

The contest raises the question that no decree for alimony bears interest.

Nothing but money judgments based on liquidated debts or torts which have been liquidated by judgment bear interest. The alimony decree which is not a judgment for a fixed and final amount, we submit can bear no interest, especially against the estate of the defendant, and we further submit, can bear no interest against him during his lifetime. The accumulated interest here would be nearly as much as the amount of the alimony claimed.