Willard v. Rodman

63 S.E.2d 106 (1951)

233 N.C. 198

WILLARD v. RODMAN.

No. 602.

Supreme Court of North Carolina.

February 2, 1951.

*107 Thomas W. Davis, Wilmington, for plaintiff.

John F. Crossley and Rountree & Rountree, all of Wilmington, for defendant.

DENNY, Justice.

The defendant contends the court below was without authority to enter judgment upon the admissions of his counsel. This contention is without merit. Moreover, it was admitted in this Court by counsel for defendant that the defendant owes the plaintiff the amounts alleged to be due her in the complaint and for which judgment was entered below. Nor was it *108 suggested by counsel that the defendant has a meritorious defense to the action. Therefore, under the full faith and credit clause of the Constitution of the United States, the plaintiff is entitled to a money judgment for the past due and unpaid installments which had accrued under the Florida decree at the time of the institution of this action. Barber v. Barber, 323 U.S. 77, 65 S. Ct. 137, 89 L. Ed. 82, 157 A.L. R. 163; Sistare v. Sistare, 30 S. Ct. 682, 218 U.S. 1, 54 L. Ed. 905; Lynde v. Lynde, 181 U.S. 183, 21 S. Ct. 555, 45 L. Ed. 810; Webb v. Webb, 222 N.C. 551, 23 S.E.2d 897; Lockman v. Lockman, 220 N.C. 95, 16 S.E.2d 670; Arrington v. Arrington, 127 N.C. 190, 37 S.E. 212, 52 L.R.A. 201; Thomas v. Thomas, 14 Cal. 2d 355, 94 P.2d 810; Van Loon v. Van Loon, 132 Fla. 535, 182 So. 205; Campbell v. Campbell, 28 Okl. 838, 115 P. 1111; Armstrong v. Armstrong, 117 Ohio St. 558, 160 N.E. 34, 57 A.L.R. 1108; Rosenberg v. Rosenberg, 152 Md. 49, 135 A. 840; A.L.I. Restatement, Conflict of Laws, Section 464. Consequently, the judgment entered below, insofar as it relates to past due and unpaid installments, accruing under the Florida decree, will not be disturbed.

The defendant presents a more serious question by his exception to that portion of the judgment entered below which directs the defendant to pay into the office of the Clerk of the Superior Court (of New Hanover County), for the use and benefit of the plaintiff, the sum of One Hundred Dollars on 3 September, 1950, and a like sum on the 3rd day of each month thereafter so long as the plaintiff may live, or until she remarries.

The full faith and credit clause in our Federal Constitution does not obligate the courts of one state to enforce an alimony decree rendered in another state, with respect to future installments, when such future installments are subject to modification by the court of original jurisdiction. Sistare v. Sistare, supra; Lynde v. Lynde, supra; Biewend v. Biewend, 17 Cal. 2d 108, 117, 109 P.2d 701, 132 A.L.R. 1264; Kossower v. Kossower, N.J., 142 A. 30; German v. German, 122 Conn. 155, 188 A. 429; 17 Am.Jur.Sec. 762, p. 576.

It is said in the last cited authority: "Where a foreign decree is subject to modification by the court in which it was entered, neither the Federal Constitution nor the principle of comity requires the courts of another state to enforce it, since no court, other than that having jurisdiction in the original suit, can undertake to administer the relief to which the parties may be entitled without bringing about a conflict of authority and a condition of chaos."

We have examined the law applicable to the facts in this case, and find that a decree for the payment of alimony entered by any court of competent jurisdiction in the State of Florida, whether based upon an agreement of separation, a voluntary property settlement, or in connection with an action for divorce or separate maintenance, is subject to modification as to future installments under the provisions of Chapter 16780, Acts of 1935, Codified as Section 65.15, Florida Statutes 1949, F.S.A.

There is no statute in this state which authorizes a judgment to be entered for the payment of alimony, in an action for divorce a vinculo matrimonii. Even so, this does not prevent the institution of an action on a judgment of another state for the collection of past due installments of alimony awarded in a decree for absolute divorce in accord with the laws of such state. Lockman v. Lockman, supra.

However, we know of no authority, statutory or otherwise, in this jurisdiction, which authorizes or requires the entry of a decree requiring the payment of alimony based on a judgment rendered in another state, when such judgment is subject to modification in this respect by the courts of the other state. And whatever may be the rule in some jurisdictions as to comity in such cases, such a judgment as to future installments of alimony is not entitled to enforcement under the full faith and credit clause of our Federal Constitution. 27 C.J.S., Divorce, § 328, p. 1281. Biewend v. Biewend, supra; Bamboschek v. Bamboschek, 150 Misc. 885, 270 N.Y.S. 741.

The adoption of the Florida judgment as the judgment of the Superior *109 Court of New Hanover County does not change the existing rights of the parties thereunder. It may be used, however, as a basis for a suit or suits to collect unpaid installments which may accrue under the Florida decree in the future, subject to any modification of the original decree which may have been made in the meantime. Lynde v. Lynde, supra; Kossower v. Kossower, supra; KeezerMarriage and Divorce, 3rd ed., Sec. 676, p. 723.

It follows, therefore, the plaintiff is not entitled to a judgment in this jurisdiction, directing the defendant to pay future installments of alimony. She is entitled only to a money judgment for past due and unpaid installments due her under the Florida decree, which judgment is enforceable by execution and not by contempt proceedings. 27 C.J.S., Divorce, § 328, p. 1282; NelsonDivorce and Annulment, Vol. 2, Sec. 16.05, p. 296 et seq; Lynde v. Lynde, supra; German v. German, supra; Harrington v. Harrington, 233 Mo.App. 390, 121 S.W.2d 291.

The judgment entered below will be modified in conformity with this opinion.

Modified and affirmed.