Barber v. Barber

• Decision Date: 20 November 1943
• Citation: 175 S.W.2d 324,180 Tenn. 353
• Parties: BARBER v. BARBER.
• Court: Tennessee Supreme Court

175 S.W.2d 324

180 Tenn. 353

BARBER v. BARBER.

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: "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, until the decree has been recalled, as any other judgment for money is.' Second, that this general rule, however, does not obtain where, by the law of the state in which a judgment for future alimony is rendered, the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive the instalments ordered by the decree to be paid, even although no application to annul or modify the decree in respect to alimony had been made prior to the instalments becoming due."

The judgment upon which suit is herein brought was affirmed by the Supreme Court of North Carolina. In Barber v Barber, 217 N.C. 422, 427, 8 S.E.2d 204, 208, the complainant had filed a petition and...