Davis, Carleton M.

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Kentucky Law JournalVolume 35 | Issue 1 Article 31946Alimony Decrees Available Means of Enforcementin KentuckyCarleton M. DavisUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Family Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationDavis, Carleton M. (1946) "Alimony Decrees Available Means of Enforcement in Kentucky," Kentucky Law Journal: Vol. 35 : Iss. 1 ,Article 3.Available at: https://uknowledge.uky.edu/klj/vol35/iss1/3NOTEALIMONY DECREES AVAILABLE MEANS OFENFORCEMENT IN KENTUCKYAt common law a court of equity had two methods of en-forcing alimony decrees. One method was by the writ of at-tachment of the person of the defaulting husband, under whichhe was cited as being in contempt of court and imprisoned untilsuch a time as he had purged himself of his contempt by pay-ment of the alimony then due under the decree.1 This meansof enforcement was resorted to practically to the exclusion ofthe second method, the writ of sequestration. 2 By means ofthis writ the courts of equity were given the power to takecharge of the husband's property, both real and personal, andadminister it for the benefit of the wife, to the extent of herclaim derived from the alimony decree. The court could col-lect the rents and profits from the defaulting husband's lands.as well as the income from his personalty, or it could sell hispersonalty, and apply the proceeds to the payments due underthe alimony decree.With such an effective means of enforcement as was madeavailable by the writ of sequestration, one might well questionthe advisability of so frequent resort by the common law courtsto imprisonment for contempt in order to enforce payment ofalimony. If such a question is justified in regard to the actionof the common law courts it would appear that it is all the morejustified as regards the Kentucky courts of today, in view of theample means of enforcement, other than by imprisonment, nowavailable in this jurisdiction.In 1893, Kentucky passed what is now Kentucky RevisedStatutes Section 426.430, which provides: "A final order orjudgment in equity for money, land or other specific thing maybe enforced by any appropriate writ of execution, allowable on ajudgment at law, or by the ancient practice of courts ofchancery. The writ shall issue and be returnable as otherwrits of execution. "3INotes (1920) (Introduction) 8 A. L. R. 1156, (1911) 137 Am. St.Rep. 876, (1894) 24 L. R. A. 433.2 Notes (1925) 38 A. L. R. 1084, (1889) 1 L. R. A. 788, 10 R. C. L.565, (1896) 24 Eng. Ru. Ca. 40.* 1893, c. 219, p. 1004, Art. V, sec. 1.NoTEAs will be noted from its wording the legislature did notintend this statute as a substitution for the common law powersof a court of equity, but rather as an addition to them.Although the courts appear generally to have ignored theincreased powers made available by this statute, a study of thecases arising since the date of its passage reveals that its pro-visions have been resorted to in a number of instances. One ofthe first decisions to take advantage of its existence was thatof Tyler v. Tyler,4 where the wife was granted alimony in alump sum, and the court held that equity could order execu-tion by sale of the former husband's realty. The court alsopointed out that the alimony judgment made the wife just likeany other judgment creditor of the husband and the alimonydue became a debt of record upon which execution would is-sue.Since the decision in the above case the Kentucky courtshave resorted to various means of securing payment of alimony.In addition to granting execution upon realty,5 execution hasbeen ordered upon personalty,6 garnishment of the former hus-band's income has been permitted,7 his bank account has beenattached,8 and notes owned by the husband have been orderedcollected and the proceeds paid into court. 9 To assure com-pliance with any alimony decree it might later grant, courtshave permitted the wife to attach her husband's property uponfiling her petition for divorce.10In Nisbet's Ex'rs. v. Nisbet,1i the wife sued the husbandfor alimony and joined as defendants the executors of the499 Ky. 31, 34 S. W. 898- (1896).'Ferree v. Ferree, 285 Ky. 825, 149 S. W. 2d 719 (1941); Harleyv. Harley, 283 Ky. 725, 142 S. W. 2d 992 (1940); Tyler v. Tyler, 99Ky. 31, 34 S. W. 898 (1896); see Ford v. Ford, 230 Ky. 56, 18 S. W. 2d859 (1929); Franck v. Franck, 107 Ky. 362, 54 S. W. 195 (1899).*Ferree v. Ferree, 285 Ky. 825, 149 S. W. 2d 719 (1941); seeFord v. Ford, 230 Ky. 56, 18 S. W. 2d 859 (1929);,Tyler v. Tyler, 99Ky. 31, 34 S. W. 898 (1896).Coggins v. Coggins, 289 Ky. 570, 159 S. W. 2d 4 (1942); seeNisbet's Ex'rs v. Nisbet, 178 Ky. 456, 198 S. W. 1154 (1917).'Adkins v. Adkins, 213 Ky. 100, 280 S. W. 477 (1926) (the courtordered that the funds be applied to payment of the wife's attorney'sfees and costs, but nothing appears which would have preventedtheir being applied to satisfy the alimony claim).'Adkins v. Adkins, 213 Ky. 100, 280 S. W. 477 (1926).'*Ferree v. Ferree, 285 Ky. 825, 149 S. W. 2d 719 (1941); Adkinsv. Adkins, 213 Ky. 100, 280 S. W. 477 (1926).'178 Ky. 456, 198 S. W. 1154 (1917).KENTUCKY LAw JOURNALestate of the husband's deceased father. It was held that thewife was'entitled to a full disclosure by such executors as tothe amount and character of the husband's inheritance, with aview to ascertaining the portion thereof that might be appliedtoward the payment of alimony.In the case of Ferree v. Ferree,12 the equity court went sofar as to order that a lien attach to the husband's lands tosecure the payment of alimony, but it does not appear whetherthe lien was made a part of the alimony decree or was orderedin a subsequent suit by the wife to enforce the decree. How-ever, the decision in Campbell v. Trosper,3 by dictum, pointsout that the Chancellor can provide for such a lien in his ali-mony decree.Still another recourse open to a court of equity may befound where the husband is the beneficiary of a trust estab-lished for his support. In the case of Ford v. Ford,14 the hus-band's father had set up a trust for his son's benefit, and thecourt decreed that the trustee might be directed to pay a cer-tain amount out of the proceeds of such trust for the supportof the husband's children. This case serves to show that thecourt of equity may take charge of the proceeds payable out ofa trust fund if a sufficiently equitable claim arises, and that.if the proper circumstances exist those proceeds may be appliedto the satisfaction of an alimony decree. This result wasreached in a well known New York case.' 5Under the present status of the law in Kentucky there ap-pears to be only one type of alimony decree that cannot be en-forced by any and all of the above named means, and that isthe temporary support allowed the wife during the process ofthe suit for divorce. Such a decree is not regarded as a finaljudgment and therefore is enforceable by rule only.16 All othertypes of alimony, whether lump sum, settlement agreement, orthat payable in a monthly amount until further order of thecourt, are considered as final judgments, upon which executionmay issue as to the amount due.In view of the virtually unlimited resources available to285 Ky. 825, 149 S. W. 2d 719 (1941).108 Ky. 608, 57 S. W. 245 (1900).14230 Ky. 56, 18 S. W. 2d 859 (1929).'Wetmore v. Wetmore, 149 N. Y. 520, 44 N. E. 169 (1896).'Ford v. Ford, 230 Ky. 56, 18 S. W. 2d 859 (1929).NOTE 77a court of equity to enforce payment of alimony, it is difficultto comprehend why resort should so frequently be had byChancellors to imprisonment. It is within the discretion of thecourt as to whether or not a request by the wife to have herdefaulting- husband imprisoned shall be granted.17 But a wisecourt should compel her first to seek relief by means of someone of the above methods. It is contended that the courts areentirely too prone to seek the easiest way out and relieve them-selves and the wife of slight difficulties at the expense of thereputation, liberty and good name of the husband.CARLETON Al. DAVIs1 TBarrett v. Barrett, 287 Ky. 216, 152 S. W. 2d 610 (1941).

Alimony Decrees Available Means of Enforcement in Kentucky

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Alimony Decrees Available Means of Enforcement in Kentucky

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