
    Fickel et al. v. Granger.
    
      Alimony — Not a debt but an award of court — Founded upon obligation of husband to support wife — Cannot be subjected to payment of prior debts of wife.
    
    1. Alimony is not due and payable as debt, damages or penalty; but is an award by the court upon considerations of equity and public policy and is founded upon the obligation, which grows out of the marriage relation, that the husband must support his wife, which obligation continues after legal separation without her fault.
    
    2. Alimony cannot, either before or after payment thereof, be subjected to the payment of debts of the wife which existed prior to the allowance thereof.
    (No. 12115
    Decided November 22, 1910.)
    Error to the circuit court of Cuyahoga county.
    On October 15, 1906, the plaintiff in error, Mrs. Fickel, was indebted to the defendant in error upon a judgment of the probate court of Cuyahoga county in the sum of $1,051.37, which was subsequently reduced by a payment of $200 on October 30, 1906, leaving a balance due to the defendant in error of $851.37, with interest. On June 18, 1908, Mrs. Fickel was divorced from her husband, Jacob Fickel, and was awarded $1,200 alimony for her support and maintenance and was awarded the sole custody, care and control of the three minor children of the parties to said divorce suit. This amount of .'alimony was on the following day paid to her attorney, E. C. Schwan, one of the plaintiffs in error. On June 20 the defendant in error began this action, setting up in her petition, “that said Minnie Fickel has no real or personal property subject .to execution out of which said money can be collected, but that defendant, E. O. Schwan, is indebted to said Minnie Fickel in the amount of about $1,200 for alimony received by said Schwan for said Minnie Fickel,” and praying that said money in Schwan’s hands be subjected to the payment of her claim. It appeared on the hearing of said cause that Schwan had still in his hands $800 of the $1,200 received, having retained $250 due him for fees in the divorce case and for oth.er legal services and having paid $150 to Mrs. Fickel and on her behalf to other persons. Mrs. Fickel claimed $500 in lieu of a homestead, which was conceded to her, and the contention was therefore over the remainder of the alimony, to-wit, $300, which the plaintiff in error contended could not be subjected to the payment of the claim of defendant in error. The court of common pleas held with the plaintiff in error and dismissed the petition. Upon anneal a majority of the circuit court were of a different opinion and they ratified the payment by Schwan of the $500 to Mrs. Fickel as her statutory exemption, in lieu of a homestead, but ordered him to pay said balance of $300 to the defendant in error and rendered judgment against both plaintiffs in. error for costs. To reverse the judgment of the circuit court this petition in error is prosecuted.
    
      Mr. E. C. Schwan, for plaintiffs in error.
    The New York court of appeals was the first appellate court to decide this question and did so in the leading case upon this subject, the case of Romaine, Recr., v. Chauncey, 129 N. Y., 566, 14 L. R. A., 713, 26 Am. St. Rep., 544.
    This case has been often cited and quoted from and always with approbation. Audubon v. Schufeldt, 181 U. S., 575; Kingman & Co. v. Carter, 8 Kans. App., 46.
    Alimony cannot be appropriated for a debt existing prior to the decree of divorce. 2 Am. & Eng. Ency. Law (2 ed.), 117; 14 Cyc., 795; Smith on Equitable Remedies of Creditors, 280; 2 Bates' Pleading and Practice (1908), 1499; Lynde v. Lynde, 64 N. J. Eq., 736, 58 L. R. A., 471; Kempster v. Evans, 81 Wis., 247; Hackley v. Muskegon, 58 Mich., 454; Jordan v. Westerman, 62 Mich., 170.
    Other cases showing that alimony judgment and decrees are wholly sui generis, are Lemert v. Lemert, 72 Ohio St., 364; Peeke v. Fitzpatrick, 74 Ohio St., 396; State, etc., v. Cook, 66 Ohio St., 566; Noyes v. Hubbard, 64 Vt., 302; Barclay v. Barclay, 184 Ill., 375; Dunbar v. Dunbar, 190 U. S., 340, and Audubon v. Schufeldt, 181 U. S., 575, holding same doctrine as laid down in Lemert v. 
      Lemert, supra; Holdship v. Patterson, 7 Watts (Pa.), 547, quoted with approval in the celebrated case of Nichols, Assignee, v. Eaton et al., 91 U. S., 716.
    
      Messrs. Laubscher & Kess, for defendant in error.
    The question involved is, Can money awarded as alimony be subjected for the wife’s debts after it has been actually paid over to her?
    We claim that it can, for the following reasons:
    1. “It is very clear that the original jurisdiction of equity did not include the power to decree alimony as an incident of divorce.” 3 Pom. Eq. Jur. (3 ed.), Sec. 1120.
    Whatever power the court seeks to exercise in this case must therefore be found in the statutes; and we are unable to find any provision giving the money after it is received any distinctive character or ear marks.
    It is on this ground that the supreme court of New York, in a case where life insurance paid for by premiums up to a certain amount is protected by statute against seizure, holds that after it is paid to the beneficiary it may be subjected. Crosby v. Stephan, 32 Plun, 478.
    2. To deny such right is to work a judicial amendment to our exemption laws, and in addition make the amount of exemption vary with the amount of alimony allowed, being $1,200 in this case, but perhaps $12,000 in the next.
    
      3. If the court may prevent subjection of money paid over as alimony, should it not also logically exercise a supervision over its expenditure by the wife herself, who may be extravagant and spend in a year what the court intended for her life support, or may be otherwise improvident though not feeble-minded? May she pay attorney’s fees for various legal services during two years, but refuse to pay money embezzled from her-ward? The claim of plaintiffs- in error leads, to absurd results, and makes the court an informal guardian, with no limit to its arbitrary powers.
    4. There is a clear analogy between alimony and pension, the purpose being the same in both.
    After payment of the pension it cannot be recalled by the government, nor its disposal qualified, limited or abridged. Kellogg v. Waite, 94 Mass. (12 Allen), 529; Fulwiler v. Infield’s Guardian, 6 C. C., 36, 52 Ohio St., 623; Jardain v. Association, 44 N. J. L., 376; Cranz v. White, 27 Kans., 319; Rozelle v. Rhoades, Exr., 116 Pa. St., 129.
    5. Again, alimony for support occupies no stronger ground that the year’s allowance to a widow, which is based ultimately -on the ground that she shall not become a public charge.
   Davis, J.

The question which is submitted to us in this case is this: Can money or property which has been awarded as alimony be subjected to pre-existing debts of the wife? It seems to be conceded that the question should be answered in the negative, except in cases where the alimony has come into the wife’s possession; but we'are of the opinion, for reasons which will be stated later, that at no time arid under no circumstances can alimony be lawfully subjected to the payment of a pre-existing debt. There is a clear distinction in reason between debts antecedent and debts subsequent to the time of the allowance and payment of alimony. The latter class may be presumed to have been made on the credit of, and with reference to, the alimony; not so the former.

Alimony is an allowance for support, which is made upon considerations of equity and public policy. It is not property of the wife recoverable as. debt, damages or. penalty. State on complaint of Cook v. Cook, 66 Ohio St., 566. It is based upon the obligation, growing out of the marriage relation, that the husband must support his wife, an' obligation which continues even after a legal separation without her fault. Being thus founded upon public policy and created in equity, it cannot be diverted from the purpose of support without public injury; and therefore the courts which create the fund should see. that it is not subjected to .the rapacity of pre-existing creditors who necessarily became such on the faith and credit of other funds. Such creditors have no claim on the support provided by the husband duririg the existence of the marriage relation. :We see no reason for allowing such a claim upon the support which he is compelled by law to make, whether with or without legal separation. Substantially the same answer was made to this question by the court of appeals of New York in Romaine v. Chauncey et al., 129 N. Y., 566; and the same doctrine was announced in Kansas in Kingman & Co. v. Carter, 8 Kan. App., 46.

We do not think that this case runs parallel with the cases involving pension money, because Section 4747 of the Revised Statutes of the United States provides that money due to a pensioner shall enure wholly to the benefit of such pensioner only while it is in course of transmission to the pensioner; and because .the pensioner’s claim is wholly created by the statute.

Judgment of circuit court reversed and judgment for plaintiffs in error.

Summers, C. J., Spear, Shauck and Price, JJ., concur.  