196 U. S.

Argument for Plaintiff in Error.

quired to give security for the payment of the alimony awarded. The decree did not reserve any right of subsequent modification or amendment. On January 13, 1899, there was due to the wife from the plaintiff in error, for arrears in alimony and allowance under the decree, the sum of $19,221.60. Upon that day, upon application to the District Court of the United States for the Eastern District of Pennsylvania, the plaintiff in error was adjudicated a bankrupt. The defendant in error made no proof of her claim for alimony in the bankrupt proceedings. On June 21, 1900, the plaintiff in error was granted a discharge from all debts and claims provable under the bankruptcy act. On December 12, 1901, plaintiff in error sued out a writ in the Supreme Court of the State of New York for an order enjoining and restraining all proceedings on behalf of the defendant. in error for the collection of the arrears of alimony and allowance aforesaid. This application was denied, upon the ground, as it appears from the memorandum of the judge who rendered the decision, that the arrears of alimony were not discharged in bankruptcy. From the order denying the application an appeal was taken by the plaintiff in error to the Appellate Division of the Supreme Court of the State of New York, where the order below was affirmed. 72 App. Div. N. Y. 620. The plaintiff in error thereupon appealed to the Court of Appeals of the State of New York, and on June 27, 1902, the appeal was dismissed for want of jurisdiction, without any judgment of affirmance or reversal upon the merits. 171 N. Y. 690. A writ of error was sued out seeking in this court a reversal of the judgment of the Supreme Court of the State of New York.

Mr. William A. Keener for plaintiff in error:

Under the statutes and decisions of the State of New York, the claim of the defendant in error for alimony and allowance was a fixed liability, evidenced by a judgment. The decree of divorce of April 1, 1892, containing no provision by virtue. of which it may be modified, altered or amended, became an absolute obligation, beyond the power or control of either the

Argument for Defendant in Error.

196 U. S.

courts or the legislature to modify. Walker v. Walker, 155 N. Y. 77; Livingston v. Livingston, 173 N. Y. 377; § 1759 N. Y. Code of Civ. Pro., as it read in 1892.

So absolute is it that it is not affected by the marriage of the wife. Shepherd v. Shepherd, 1 Hun, 240; S. C., affirmed 58 N. Y. 644. It is an obligation collectible by the levying of an execution. N. Y. Code Civ. Pro. § 1240; Miller v. Miller, 7 Hun, 208. She is regarded as a judgment creditor. Wetmore v. Wetmore, 149 N. Y. 520.

The arrears of alimony which accrued prior to January 13, 1899, were a provable debt within the provisions of the United States Bankruptcy Act, and were released by the discharge in bankruptcy granted to the plaintiff in error. Re Houston, 94 Fed. Rep. 119; Re Van Orden, 96 Fed. Rep. 86.

The cases on brief of defendant in error can be distinguished. The remedy of plaintiff in error was properly sought in the court in which the judgment was entered. Moore v. Upton, 50 N. Y. 593; Palmer v. Hussey, 119 U. S. 96.

The Appellate Division of the Supreme Court is the highest court of the State of New York in which a decision could be had by the plaintiff in error. Bacon v. Texas, 163 U. S. 207; Mo. Kan. & Tex. v. Elliott, 184 U. S. 530.

The alimony awarded to the defendant in error was not given as compensation for a willful and malicious injury to her person or property. An action for divorce is not an action of tort. Mangles v. Mangles, 6 Mo. App. 481; Erkenbrach v. Erkenbrach, 96 N. Y. 456, 463; Matter of Ensign, 103 N. Y. 289.

Mr. Flamen B. Candler, with whom Mr. William Jay and Mr. Robert W. Candler were on the brief, for defendant in error:

Neither the claim for alimony nor for maintenance and education of the infant children was a debt provable in bankruptcy, and the discharge in bankruptcy did not relieve the plaintiff in error from payment of arrears of alimony or arrears for the maintenance and education of the infant children. Audubon v. Shufeldt, 181 U. S. 575; Dunbar v. Dunbar, 190

U. S. 340; In re Nowell, 99 Fed. Rep. 931; In re Shepard, 97 Fed. Rep. 187; In re Anderson, 97 Fed. Rep. 321; Turner v. Turner, 108 Fed. Rep. 785; In re Lachemeyer, 1 Nat. Bk. Rep. 270; In re Garrett, 11 Bk. Rep. 493; Matter of Smith, 3 Am. Bk. Rep. 68; Maisner v. Maisner, 62 App. Div. N. Y. 286; Young v. Young, 35 Misc. N. Y. 335; Buckle v. Grell, 65 N. Y. Supp. 522; Bishop on Marriage and Divorce, § 837; Tinker v. Colwell, 193 U. S. 473.

Under the law of New York alimony provided for by a decree of divorce is not regarded as a debt, or a fixed liability within the meaning of the Bankrupt Act, but as a legal determination of the duty owing from husband to wife. Romaine

v. Chauncey, 129 N. Y. 566; Wetmore v. Wetmore, 79 Hun (N. Y.), 268; S. C., affirmed 149 N. Y. 520; Maisner v. Maisner, 62 App. Div. N. Y. 286; Code Civ. Pro. N. Y. §§ 1759, 1772, 1773, 2286.

If the effect of a decree containing provisions for alimony and for support and maintenance of children is to be regarded as making the husband and father debtor to the wife and children for such amounts, even then the discharge in bankruptcy would not release the plaintiff in error from such obligation. Colwell v. Tinker, 169 N. Y. 531; 2 Bishop on Mar. & Div. 220; 15 Am. & Eng. Ency. of Law, 2d ed., 857.

MR. JUSTICE DAY, after making the foregoing statement, delivered the opinion of the court.

It is conceded in argument by counsel for the plaintiff in error that this case would be within the decision of this court in Audubon v. Shufeldt, 181 U. S. 575, if the judgment for alimony had been rendered in a court having control over the decree with power to amend or alter the same. It is insisted, however, that there being in this case no reservation of the right to change or modify the decree, it has become an absolute judgment beyond the power of the court to alter or amend, and is therefore discharged by the bankruptcy proceedings.

Walker v. Walker, 155 N. Y. 77; Livingtson v. Livingston, 173 N. Y. 377. It may be admitted to be the effect of these decisions of the New York Court of Appeals that, in the absence of any reservation of the right to modify or amend, the judgment for alimony becomes absolute. The question presented for decision, in view of this state of the law, is, has the decree become a fixed liability evidenced by a judgment and therefore provable against the estate of the bankrupt, within the protection of the discharge in bankruptcy? Section 63 of the act of 1898 provides:

"SEC. 63. Debts which may be proved.

"a. Debts of the bankrupt may be proved and allowed against his estate which are (1) a fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition against him, whether then payable or not, with any interest thereon which would have been recoverable at that date or with a rebate of interest upon such as were not then payable and did not bear interest."

It is not contended that this section includes instalments of alimony becoming due after the adjudication, but the contention is that prior instalments have become an existing liability evidenced by the judgment and therefore a provable debt. While this section enumerates under separate paragraphs the kind and character of claims to be proved and allowed in bankruptcy, the classification is only a means of describing "debts" of the bankrupt which may be proved and allowed against his estate.

The precise question, therefore, is, is such a judgment as the one here under consideration a debt within the meaning of the act? The mere fact that a judgment has been rendered does not prevent the court from looking into the proceedings with a view of determining the nature of the liability which has been reduced to judgment. Boynton v. Ball, 121 U. S. 457, 466. The question presented is not altogether new in this court. In the case of Audubon v. Shufeldt, supra, Mr. Justice Gray, delivering the opinion of the court, said:

Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction. Generally speaking, alimony may be altered by the court at any time, as the circumstances of the parties may require. The decree of a court of one State, indeed, for the present payment of a definite sum of money as alimony, is a record which is entitled to full faith and credit in another State, and may, therefore, be there enforced by suit. Barber v. Barber, (1858) 21 How. 382; Lynde v. Lynde, (1901) 181 U. S. 183. But its obligation in that respect does not affect its nature. In other respects, alimony cannot ordinarily be enforced by action at law, but only by application to the court which granted it, and subject to the discretion of that court. Permanent alimony is regarded rather as a portion of the husband's estate to which the wife is equitably entitled, than as strictly a debt; alimony from time to time may be regarded as a portion of his current income or earnings; and the considerations which affect either can be better weighed by the court having jurisdiction over the relation of husband and wife, than by a court of a different jurisdiction."

In the same opinion Mr. Justice Gray quoted from Barclay v. Barclay, 184 Illinois, 375, in which case it was adjudged that alimony could not be regarded as a debt owing from husband to wife, which might be discharged by an order in bankruptcy, whether the alimony accrued before or after the proceedings in bankruptcy:

"The liability to pay alimony is not founded upon a contract, but is a penalty imposed for a failure to perform a duty. It is not to be enforced by an action at law in the State where the decree is entered, but is to be enforced by such proceedings as the chancellor may determine and adopt for its enforcement. As heretofore shown, it may be enforced by imprisonment for contempt, without violating the constitutional provision pro