Walzer v. Walzer

• Decision Date: 03 May 1977
• Citation: 173 Conn. 62,376 A.2d 414
• Court: Connecticut Supreme Court
• Parties: Jean WALZER v. Jerome S. WALZER.

Page 414

376 A.2d 414

173 Conn. 62

Jean WALZER v. Jerome S. WALZER.

Supreme Court of Connecticut.

Argued Jan. 5, 1977.

Decided May 3, 1977.

Kenneth D. Wallace, Stamford, for appellant-appellee (defendant).

Myra L. Graubard, Stamford, for appellee-appellant (plaintiff).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LONGO, Associate Justice.

This proceeding was commenced by the plaintiff, a California resident, against the defendant, a Connecticut resident, to secure equitable enforcement of an order of the Family Court of New York modifying a divorce decree issued in Idaho and for damages due to the defendant's failure to pay amounts prescribed in the New York order. The Superior Court rendered judgment for the plaintiff in the amount of $13,050, but ruled for the defendant on the plaintiff's claim for prospective equitable enforcement of the New York decree. The defendant appealed from the judgment and the plaintiff cross-appealed.

The defendant and the plaintiff have attacked several of the court's findings. We have considered their claims and have arrived at the following summary of the relevant facts. The plaintiff and the defendant were married on May 28, 1950, and had three children. They entered into a separation agreement on June 29, 1965, and were granted a divorce in the state of Idaho on August 19, 1965. The court awarded custody of the children to the plaintiff and the separation agreement was incorporated, but not merged, into the divorce decree. The separation agreement and decree provided that the plaintiff should receive $175 per week from the defendant as alimony and for support of the children. The relevant sections of the agreement further provided that during such time as any one of the children was away at camp, school or college at the defendant's expense, married, died, reached the age of twenty-one or finished college, whichever was sooner, the payments should be reduced by $25 per week. At such time as no children were living at home with the plaintiff, she was to be entitled to $100 per week until she remarried or died. The agreement also provided that the defendant would lease to the plaintiff the house he owned for one dollar per year to "be occupied and used solely and exclusively by the wife and children." The defendant further agreed that if, after three years, he sold the house and the wife and children were required to move, he would provide substantially similar accommodations for the wife and children.

In 1970, the plaintiff petitioned the Family Court of the state of New York for modification of the Idaho decree. The defendant appeared, was represented by counsel and testified at the hearing on the petition. The New York court issued an order purporting to modify the Idaho decree. The court ordered the defendant to pay to the plaintiff the sum of $175 per week until the last child married, died or attained the age of twenty-one, made additional modifications of the original decree relating to the support of the children and provided for payment of $375 per month as rental payments should the plaintiff be forced to move from the house owned by the defendant. The defendant did not appeal the Family Court order, nor did he seek modification of it in New York. The defendant made payments in compliance with the order from September 15, 1971, the date of the order, until March 20, 1973, when he reduced the $175 weekly payments to $100. In February, 1974, after consulting an attorney, the defendant ceased making the $375 per month rental payments.

By complaint dated December 4, 1973, and amended complaint dated January 30, 1974, the plaintiff petitioned the Superior Court of Connecticut for equitable prospective enforcement of the New York order and an award of damages for accrued payments. The Superior Court found that the Idaho decree, as modified by the New York order, was entitled to full faith and credit under Article IV, § 1, of the United States constitution and that it was also enforceable in Connecticut under the doctrine of comity. The court further concluded that the defendant was estopped from raising any defenses which he could have raised in the Family Court of New York proceedings; that he was estopped from claiming that the New York Family Court was without jurisdiction to modify the Idaho divorce decree; and that the defendant was estopped from claiming that the order of the New York Family Court was not enforceable in Connecticut. Based upon these conclusions, the court granted the plaintiff's claim for accrued payments in the amount of $13,050, representing $5250 in back rent payments and $7800 in back support and alimony payments. The court denied the plaintiff's claim for prospective enforcement.

Article IV, § 1, of the United States constitution provides 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 by the Act of May 26, 1790, chapter 11, as amended, R.S. § 905, 28 U.S.C. § 687, has prescribed that judgments "shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken." Actions to enforce orders for the payment of alimony and support have produced a considerable amount of full faith and credit litigation. In the leading case of Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, the Supreme Court held that a Connecticut court was required to render judgment for accrued alimony payments originally ordered under a New York separation decree. This court had held that judgment should not enter since it read New York law as making alimony decrees modifiable and, therefore, not final orders commanding full faith and credit from the courts of this state. Sistare v. Sistare, 80 Conn. 1, 66 A. 772. The United States Supreme Court did not overturn the constitutional principle laid down by this court, but reversed on the ground that it did not interpret New York law as allowing modification of alimony decrees. This court in Hendrix v. Hendrix, 160 Conn. 98, p. 104, 273 A.2d 890, p. 893, summarized the governing requirements of full faith and credit law as follows: "Under the full faith and credit clause of the constitution of the United States (article 4 § 1) and its implementing statute . . . the judicial proceedings of a state must be given full faith and credit in every other state. The judgment rendered in one state is entitled to full faith and credit only if it is a final judgment, and the judgment is final only if it is not subject to modification in the state in which it was rendered. Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82; Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905." ¹

New York, in its Domestic Relations Law, § 236, has expressly reserved in its courts the power to modify the amount of unpaid alimony due. Section 236 states: "Upon the application of either the husband or the wife . . . the court may annul or modify any such direction (for temporary or permanent alimony), whether made by order or by final judgment. . . . (T)he authority granted by the preceding sentence shall extend to unpaid sums or installments accrued prior to the application as well as to sums or installments to become due thereafter." The commentary at 14 McKinney's Consolidated Laws of New York 140 states of this section: "The seventh sentence (of § 236) clarifies that any application (under the sixth sentence) for an amendment or modification of a prior judgment or order directing the paying out of money (this will generally apply where the payments were directed to be made in installments) may be granted retroactively as well as prospectively. Hence arrears under a prior judgment or order are not beyond the reach of the court on an application to modify the prior direction." Further, § 461 of the Family Court Act of New York states in part: "(b) If an order of the supreme court or of another court of competent jurisdiction requires support of the child, the family court may . . . (ii) entertain an application to modify such order on the ground that changed circumstances requires such modification." Section 466(c) of the Family Court Act also provides for modification of alimony and support orders when it states: "(I)f a court of competent jurisdiction not of the state of New York shall enter an order or decree granting alimony or support in any such action, the family court may . . . (ii) entertain an application to modify the order or decree granting alimony on the ground that there has been a subsequent change of circumstances and that modification is required." The plaintiff in the present proceeding has not taken the final step of reducing the alimony arrearage to a judgment for money owed to her, in which case our ruling might be different. The New York order in question, therefore, clearly does not satisfy the prerequisite of finality required before full faith and credit may be accorded the judgment of a foreign state. See annot., 157 A.L.R. 170, and cases collected therein.

Our determination whether the courts of this state will enforce the New York order, however, does not end with our decision that the full faith and credit clause does not apply. The plaintiff argues that, though we are not compelled by the full faith and credit clause to enforce the order, we may enforce it through comity. Milwaukee County v. M. E. White Co., 296 U.S. 268, 56 S.Ct. 229, 80 L.Ed. 220. In the leading case of Sistare v. Sistare, 80 Conn. 1, 4, 66 A. 772, discussed above, this court, after discussing the New York order in question and establishing that it was subject to modification, stated: "Such being the character of the order before us, as declared by the courts...