187 P. 609 (Or. 1920), Levine v. Levine

Citation:187 P. 609, 95 Or. 94
Opinion Judge:[95 Or. 98] HARRIS, J. (after stating the facts as above).
Party Name:LEVINE v. LEVINE.
Attorney:L. E. Schmitt, of Portland, for appellant. Bartlett Cole, of Portland, for respondent.
Judge Panel:Burnett, J., dissenting. McBRIDE, C.J., and BENSON, J., concur. BURNETT, J. (dissenting).
Case Date:February 03, 1920
Court:Supreme Court of Oregon

Page 609

187 P. 609 (Or. 1920)

95 Or. 94




Supreme Court of Oregon

February 3, 1920

Department 1.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow, Judge.

Action by Hildegarde Levine against David Levine. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The plaintiff, Hildegarde Levine, obtained a decree on October 20, 1913, in Hennepin county, Minn., divorcing her from her then husband, David Levine. The decree also provided that the plaintiff should have the care and custody of a minor child of the parties. The decree required the father to pay to the mother, for the care and maintenance of the child, the sum of $25 per month, payable as follows: $12.50 on the 5th day and $12.50 on the 20th day of the month--"the first payment to be October 20, 1913." The father did not pay any of the installments; and consequently, in 1918, the plaintiff began this action in a circuit court of this state to recover from the defendant the sum of $1,300, the amount of the accrued installments. The complaint refers to certain statutes in force in Minnesota, and affirmatively avers that the law reserves to the courts of that state power to modify divorce decrees, so far as they relate to the care, custody, and maintenance of the children of divorced parents. It is alleged that "no part of said decree has ever been changed, modified, or vacated, but now remains in full force and effect." The trial court overruled a demurrer to the amended complaint, and, upon the refusal of the defendant to plead further, the plaintiff was awarded a judgment for $1,300, together with costs and disbursements. The defendant appealed.

Burnett, J., dissenting.

Page 610

L. E. Schmitt, of Portland, for appellant.

Bartlett Cole, of Portland, for respondent.

[95 Or. 98] HARRIS, J. (after stating the facts as above).

Article 4, § 1, of the federal Constitution, commonly known as the full faith and credit clause, requires that:

"Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

Congress exercised the power conferred upon it, and by statute prescribed the mode of attesting the records of one state, so as to entitle them to be proved in the courts of another state, and enacted that records so authenticated should have such faith and credit in every court within the United States as they have by law or usage in the state from which they are taken. 15 R. C. L. 922. This constitutional provision does not confer upon Congress power to give such judgment all the legal properties, rights, and attributes to which it is entitled by the laws of the state where rendered. To give it the force of a judgment in another state, it must be made a judgment there, and can only be executed in the latter as its laws permit. 15 R. C. L. 926; 23 Cyc. 1546. While the judgment of one state is entitled to receive the same faith, credit, and respect that is given to it in the state where rendered, it is not entitled to any greater effect or finality than would be accorded to it in the state where rendered; and therefore, if the judgment is conclusive in the home state, it is equally conclusive in the sister state, but if it is inconclusive in the home state, it is likewise inconclusive in the sister state. 15 R. C. L. 928. Expressed in general terms, the rule is that, in order to maintain an action in one state upon a money judgment recovered in another state, such judgment must be a final adjudication, in full force [95 Or. 99] in the state where rendered and capable of being enforced by final process, and ordinarily it should create a definite and absolute indebtedness against the judgment debtor. 23 Cyc. 1559.

When a suit for divorce terminates in a decree which divorces the husband and wife, provides for the care, custody, and maintenance of the minor children, and allows alimony to the wife, that part of the decree which relates to the divorce is protected by the full faith and credit clause; and so, too, are the provisions concerning maintenance and alimony, if they are finalities. An allowance in a divorce decree for the maintenance of children is usually referred to as "maintenance," and an allowance for the divorced wife is generally designated by the term "alimony"; but for the sake of brevity we shall use the term "alimony," as applicable alike to allowances for the maintenance of children and to allowances for the support of the divorced wife. A decree for alimony is generally considered a debt of record as much as any other judgment for money. Barber v. Barber, 21 How. 582, 16 L.Ed. 226; White v. White, 2336

Page 611

Mass. 39, 123 N.E. 389; Phillips v. Kepler, 47 App. D. C. 384.

If that part of the Minnesota decree which relates to a money award is shielded by the full faith and credit clause, then in this jurisdiction, where the distinction between actions at law and suits in equity are preserved, the plaintiff may resort to an action at law for the enforcement of the debt created by the Minnesota decree. De Vall v. De Vall, 57 Or. 128, 145, 109 P. 755, 110 P. 705.

The Minnesota decree requires the defendant to pay the installments "to the plaintiff," and hence she [95 Or. 100] is the proper party plaintiff. Phillips v. Kepler, 47 App. D. C. 384, 388.

Precedents involving attempts to enforce in one state decrees for alimony rendered in another state may be divided into three classes: (1) Those dealing with awards payable presently, and this class includes, not only those cases where a gross sum is made payable contemporaneously with the rendition of the divorce decree, but also those where installments have accrued on a decree providing for the future payment of alimony in installments, and upon the petition of either party there is a finding that the arrears amount to a specified sum and an adjudication that such specified sum is payable presently; (2) those treating of accrued installments which have not been merged into a readjudication; and (3) those relating to installments which have not yet become due. Adjudications belonging to the third class may be ignored, since all agree that a decree rendered in one state cannot be enforced in a sister state, as to installments not yet due, for two reasons: (a) No money is yet due; (b) it is generally, if not universally, understood that an allowance is subject to modification before accrual. The Minnesota decree ordered the defendant to pay $12.50, the first installment, on October 20, 1913, the day of the rendition of the decree, while the remainder was made payable in the future. The complaint alleges that the defendant did not pay "any part of the money awarded to the plaintiff" by the decree; and hence the precedents belonging to the first of the three classes of cases mentioned apply to a small portion, $12.50, of the moneys sought to be recovered, while the adjudications falling in the second class of cases are applicable to the remainder of the moneys involved in this controversy. [95 Or. 101] We shall first consider the accrued installments.

As already stated, the Minnesota decree, to the extent that it is final, and not subject to modification, is entitled to the protection of the full faith and credit clause of the federal Constitution, and must be enforced in this state. If, however, a part of the Minnesota decree is not final, but is subject to modification by the court which rendered it, then neither the United States Constitution nor the principle of comity compels the courts of this state to enforce that part of the decree, for no court other than the one granting the original decree could undertake to administer relief without bringing about a conflict of authority. 1 R. C. L. 958. Language used in Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810, is responsible for a few adjudications which apparently proceed on the mistaken theory that a final judgment can include only moneys payable presently; as where the decree allows a gross sum payable at once upon the rendition of the decree, or where, as was done in De Vall v. De Vall, 57 Or, 128, 132, 109 P. 755, 110 P. 705, the court which granted the original decree, allowing alimony payable in installments, at some subsequent time, acting upon the petition of either party, finds that specified installments have accrued since the rendition of the original decree, and adjudges that, on account of such arrears, a definite sum is payable presently. In other words, there seems to have been an impression, more or less general, that the fact of an original decree allowing alimony payable in the future in installments, plus the fact of an accrued installment, did not produce such a judgment as was protected by the federal Constitution, but that before the full faith and credit clause could operate there [95 Or. 102] must have been an adjudication after the accrual of the installment.

In a subsequent decision, however, the whole subject was clarified and made certain. In Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L. R. A. (N. S.) 1068, 20 Ann. Cas. 1061, it was held that generally speaking the right to an installment payable in the future becomes vested contemporaneously with the maturity of the installment, provided the decree allowing alimony has not been modified prior to the accrual of the installment, and that therefore such an accrued installment is protected by the full faith and credit clause; but this comprehensive statement made in general terms is subject to an exception, for if, under the law of the state where the decree is granted, there is reserved to the court which passed the decree discretionary power to modify the original decree, so as to affect, not only installments yet to...

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