175 S.W.2d 324 (Tenn. 1943), Barber v. Barber

Citation:175 S.W.2d 324, 180 Tenn. 353
Opinion Judge:GREEN, Chief Justice.
Party Name:BARBER v. BARBER.
Attorney:Meacham & Meacham, of Chattanooga, for complainant. Shepherd, Curry & Levine, of Chattanooga, for defendant.
Case Date:November 20, 1943
Court:Supreme Court of Tennessee

Page 324

175 S.W.2d 324 (Tenn. 1943)

180 Tenn. 353




Supreme Court of Tennessee.

November 20, 1943

Appeal from Chancery Court, Hamilton County; J. L. Foust, Chancellor.

Suit in equity by Stella Barber against B. George Barber to recover on a North Carolina judgment for arrears of alimony or separate maintenance awarded complainant by a prior judgment. Decree for complainant, and defendant appeals.

Reversed, and bill dismissed.

Meacham & Meacham, of Chattanooga, for complainant.

Shepherd, Curry & Levine, of Chattanooga, for defendant.

GREEN, Chief Justice.

This bill was filed seeking recovery on a North Carolina judgment rendered in favor of the complainant against the defendant. From a decree in favor of complainant, the defendant has appealed.

The judgment upon which suit is brought represents arrears of alimony or separate maintenance to which the complainant was adjudged to be entitled under a former judgment of the superior court of Buncombe County, North Carolina. The determinative question is whether the North Carolina judgment is a final judgment entitled to full faith and credit under the Federal Constitution. Article 4, § 1. As above seen, the chancellor held it to be of that character. This conclusion is challenged by the complainant.

There is a divergence of opinion in the several States as to the power of the court to modify provisions for alimony as respects past due installments. The decisions are collected in a Note in 94 A.L.R. 331. At the time this Note was prepared, it does not appear that the North Carolina court had expressed itself upon this question so far as we are able to ascertain.

In Sistare v. Sistare, 218 U.S. 1, 16, 30 S.Ct. 682, 686, 54 L.Ed. 905, 910, 28 L.R.A.,N.S., 1068, 20 Ann.Cas. 1061, the Supreme Court reviewed its former decisions respecting the nature of judgments for alimony and expressed itself thus:

Page 325

"First, that, generally speaking, where a decree is rendered for alimony and is made payable in future instalments, the right to such instalments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the instalments, since, as declared in the Barber case [ Barber v. Barber, 21 How. 582, 16 L.Ed. 226], 'alimony decreed to a wife in a divorce of separation from bed and board is as much a debt of record,...

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