
    TILLIE J. BOLTON v. JAMES H. BOLTON.
    Argued December 16, 1913
    Decided March 9, 1914.
    1. When a wife has been decreed to have alimony paid to her, and afterwards is adjudged bankrupt, she is entitled to all alimony accruing from the time the petition in bankruptcy was filed.
    2. Under the provisions of Bankruptcy act of July 1st, 1898, which provides that all property of the bankrupt which could have been transferred by the bankrupt, before the filing of the petition, passes to the trustee, arrears of alimony accruing to the wife, to the filing of the petition in bankruptcy, pass to the trustee.
    3. Whether a foreign decree for alimony be within the full faith and credit danse, or not, the domestic court will enforce it on the ground of comity, where it is shown to he in full force.
    On motion to strike out answer as disclosing no defence.
    Before Justice Parker.
    
      For the plaintiff, Collins & Corbin.
    
    For the defendant, Clarence E. Case.
    
   The opinion of the court was delivered by

Parker, J.

This matter was argued orally at the Somerset' Circuit, and at my suggestion counsel have submitted briefs. The suit is to recover arrears of alimony accrued on a decree of divorce entered in Yew York on August 3d, 1911. Yo fixed arrears of alimony were then declared to be due, but the claim is for alimony accrued under the decree since the last payment in December, 1911. The answer raises two j)oints — first, that the plaintiff was adjudicated a bankrupt about February 28th, 1913, and (as claimed) all the accrued alimony up to the adjudication belongs to, and if, recoverable at all, is recoverable by the trustee in bankruptcy, and secondly, that by the statute of Yew York such an award of alimonjq even as to that already accrued, is subject to revision, and hence, is not a final judgment in the sense intended by the full faith and credit clause of the national constitution; and hence (as claimed), is not recoverable in this suit.

If the arrears up to the time of the bankruptcy went to the trustee, the date of filing the petition is, I think, the date' to which such arrears run. See Wheatman v. Andrews, 89 Atl. Ref. 285; Everett v. Judson, 228 U. S. 474. In any event, as defendant concedes, the alimony accrued since that time belongs to the plaintiff and apart from the other defence a judgment should pass for that amount at this stage, pursuant to rule 82 of this court, which provides that if the defence set up “applies only to part of plaintiff’s claim, or that any part is admitted, the plaintiff may have final judgment forthwith for so much of the claim as the defence does not apply to or is admitted, subject to such terms as may be deemed just.”.

But there is a larger question, viz., whether the trustee in bankruptcy is entitled to the arrears up to the filing of the petition. By section 70 of the Bankrupt act the trustee takes inter alia (5) property “which prior to the filing of the petition he (the bankrupt) could bv? any means have transferred or which might have been levied upon and sold under judicial proceedings.” It was held in Stevenson v. Stevenson, 34 Hun 157, that creditors can reach alimony payments in proceedings supplementary to execution. Alimony is so purely a provision for personal support of a wife, and so peculiarly under the control of the court awarding it, that the husband is not relieved by his bankruptcy of the obligation to pay it. Audubon v. Shufeldt, 181 U. S. 575.

The question, then, is whether it is similarly unaffected by the bankruptcy of the wife. Notwithstanding the remark in Loveland on Bankruptcy (section 153), I feel unwilling, on a motion for summary judgment, to hold that arrears of alimony accrued at the time of filing the petition do not pass to the trastee. When it is considered that during the period of non-payment ihc wife has in all probability been contracting debts for her support on the faith of recovering these payments, and that alimony is awarded for the express purpose of enabling her to meet the expense of her support by paying in cash as she gees along, and whc-n it is considered further that by her discharge in bankruptcy these debts are wiped out, it seems manifestly unjust that the creditors should have no recourse to the very fund that the divorce court provided to pay them. That creditors whose debts accrued subsequent to the decree are entitled to such recourse by the usual methods of reaching a debtor’s property, is held obiter in Romaine v. Chauncey, 129 N. Y. 566, and Fickel v. Granger, 83 Ohio St. 101; and in the Chancery case of Foote v. Foote, 68 Atl. Rep. 467, not officially reported, payments made by the husband for the wife’s account were allowed by way of deduction from the amount of alimony decreed. So, 1 will .hold, for the purposes of this motion, that the answer may stand as to arrears accrued at the time of filing the petition in bankruptcy.

The second defence, I think, is without merit. Granting all that the defendant claims as to the full faith and credit clause and the non-conclusiveness of the decree as a judgment, it does not seem to be asserted that any change has in fact falten place in the status of the decree. It is not denied that the decree awarded $125 a month; that a specified lime has elapsed during which nothing has been paid. Erom such facts it follows that a definite amount is due unless some change has taken place in the decree. The decree is not a final judgment, it is true, under the full faith and credit clause. Lynde v. Lynde, 181 U. S. 183. Hence, whether it should be enforced here is a question for the discretion of our courts in carrying out a. policy of state comity. In Freund v. Freund, 71 N. J. Eq. 524, 529, Vice Chancellor Emei’y declined to decide the question on the ground that it was in that case unnecessary. In I,ynde v. Lynde, supra, a ease beginning in our courts, continued in those of New York, and reaching, the Supreme Court of the United States, the New York Supreme Court enforced the award of future alimony, but the appellate division refused to do so (58 N. J.Supp. 567), and was sustained in this ruling by the Court of Appeals. 162 N. Y. 405. This was followed in Page v. Page, 189 Mass. 85; 75 N. E. Rep. 92. But both decisions appear to turn on the obligation of a state court to enforce a judgment of another state because final. On the other hand, in the Rhode Island ease of Wagner v. Wagner, 57 Atl. Rep. 1058, it was held that the fact that a decree for alimony was subject to modification should not deprive the wife of the right to recover in another state the amount actually accrued thereon. This ruling strikes me as a sound one worthy of being followed.

I consider the decree, which is admitted, as evidential of the amount accrued. No claim of payment or change in the decree is made, nor that any such change has been applied for. The defendant practically admits that if he were in New York the decree (on this branch of the case) would be enforceable against him. His position seems to be that while he owes the money, plaintiff cannot conclusively prove it nor require the courts of this state to enforce its payment. I think that sound public policy should prompt this court to aid the courts of Yew York in the enforcement of a decree whose propriety is in no way questioned.

Pursuant to rule 82, judgment may be entered at this time in favor of plaintiff for the arrears accrued since the filing of the petition in bankruptcy. Plaintiff may elect whether the refusal to award the rest shall be put in final shape for purposes of review, or reserved for further consideration at a trial.  