Dorey v. Dorey, 77-2879

Decision Date15 January 1980
Docket NumberNo. 77-2879,77-2879
Citation609 F.2d 1128
PartiesEdith W. DOREY, Plaintiff-Appellee, v. Francis DOREY, etc., Defendant-Appellant, Leo E. Costello, Movant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Fred Blanton, Jr., Birmingham, Ala., for Costello.

Leo E. Costello, Birmingham, Ala., for Francis Dorey.

John D. Prince, Jr., Birmingham, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Alabama.

Before SIMPSON, CHARLES CLARK and FRANK M. JOHNSON, Jr., Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

Francis and Edith Dorey 1 were married in Massachusetts in 1938. Over a period of more than twenty-five years their marital relationship deteriorated to the extent that in 1965 Mrs. Dorey filed suit in California for separate maintenance. 2 In August, 1966, the California court entered an interlocutory judgment of divorce between the parties which, among other things, ordered Francis Dorey to make certain support payments to Edith Dorey. The California court entered a final judgment of divorce in 1967, and later that year Edith Dorey successfully got the amount of the alimony payments increased.

Francis Dorey left California sometime in 1968 and, as frequently occurs, he fell behind in payments to his ex-wife. Francis Dorey's whereabouts and employment changed a number of times after 1968, but in 1975 Mrs. Dorey located him in Alabama. In order to obtain money Mr. Dorey owed her, Edith Dorey filed an action for arrearages in the California courts. Francis Dorey received substituted service in Alabama and hired an attorney in California to represent him. The California lawyer appeared in the case and vigorously argued Mr. Dorey's position. The representation, however, was to no avail. On October 15, 1975, the California judge ordered Francis Dorey to pay Edith Dorey arrearages totalling over $25,000 with interest from the date of judgment. Additionally, the court continued Francis Dorey's support obligation at $225 per month "until (Mrs. Dorey) dies, remarries, or until further order of the Court."

Shortly after obtaining the California judgment, Edith Dorey invoked the jurisdiction of the federal courts under 28 U.S.C. § 1332 and filed suit against Francis Dorey in the United States District Court in Birmingham, Alabama. In late 1976 and early 1977 the parties engaged, although not without difficulty, in a sort of discovery 3 and the case was tried and submitted in late January, 1977. Later that year the district court entered judgment in the matter and ordered defendant Francis Dorey to pay Mrs. Dorey over $34,000 in back support and interest and future alimony payments of $225 per month. The court's order also required Mr. Dorey to keep the court apprised of his address and employment and restrained and enjoined defendant and his lawyer, among others, from disposing of any assets beyond those required to pay "reasonable living expenses" until satisfaction of the judgment. 4 Finally, the court ordered defendant and his lawyer, Leo Costello, to pay Mrs. Dorey $2,000 attorney's fees and nearly $600 in costs for failure to make discovery. Francis Dorey and Leo Costello appeal. We affirm in part and reverse in part.

I. THE EFFECT TO BE GIVEN THE CALIFORNIA JUDGMENT

In the present diversity action, the district court properly recognized its constitutional and statutory mandate to accord the California judgment full faith and credit. U.S.Const. art. IV, § 1; 28 U.S.C. § 1738. However, since we believe the court granted the California judgment greater force and effect than the Alabama courts would have, we reverse in part.

A. Jurisdiction

Defendant asserts that the California judgment Mrs. Dorey obtained was not entitled to full faith and credit because the California court lacked personal jurisdiction over him. The position is patently meritless. The California courts, in each of the orders concerning the support duties of Francis Dorey, retained continuing jurisdiction over the matter. See Cal.Civ.Code § 4801; R. Leflar, American Conflicts Law § 28 at 51 & nn. 4-5 (2d ed. 1968); G. Stumberg, Principles of Conflict of Laws 81 & n. 61 (3rd ed. 1963). Indeed, the judgment sued upon in the United States District Court in Alabama establishes support at $225 per month "until further order of the (California) Court." Francis Dorey received notice of the California proceeding and appeared in the action. 5 Clearly, the California court appropriately exercised its jurisdiction.

B. Future Alimony Installments

Because the California courts properly exercised jurisdiction over Francis Dorey, there is no question that the California money judgment required enforcement by the federal district court. The California judgment for a sum certain, from which defendant failed to appeal, was unquestionably final and therefore entitled to full faith and credit. 6 See Hazen Research, supra, 497 F.2d at 153; Maner II, supra, 412 F.2d at 450-51; Maner v. Maner (Maner I), 401 F.2d 616, 618 (5th Cir. 1968); Green v. Green, 239 Ala. 407, 408-09, 195 So. 549, 550 (1940); Smith v. Smith, 361 So.2d 369, 371 (Ala.Civ.App.1978); Fowler v. Fowler, 45 Ala.App. 354, 356, 230 So.2d 744, 746 (1970); Restatement (Second) of Conflict of Laws §§ 107, 108 (1971). However, in providing for In futuro alimony, the district court exceeded the requirements of full faith and credit and its authority as a diversity court constrained by Alabama law.

In Maner I, supra, this Court spoke to the precise question confronted here.

In regard to the enforcement of the (foreign state court) alimony decree as to future installments, the full faith and credit clause does not require Alabama courts to enforce that decree since it is not final and may be modified as circumstances require. . . . However, as a matter of comity, Alabama courts may enforce a foreign alimony decree requiring future payments, but in this respect the Federal District Court sitting in effect as an Alabama court in a diversity case is bound by Alabama Law. 401 F.2d at 618 (citations omitted).

The Maner I court concluded that Alabama courts would not enforce an award for future alimony. Id. Although that conclusion is somewhat less certain now than it was in 1968, we hold that Maner I still accurately reflects Alabama law. 7 Accordingly, we reverse that portion of the district court's judgment enforcing the California award of future alimony.

C. Equitable Aspects of the Judgment

Mr. Dorey contends that the federal district court erred in ordering him to keep the court apprised of his address and employment and in enjoining him and others who represent him from disposing of assets "beyond reasonable living expenses" until satisfaction of the judgment. The assertion misses the mark.

The law of the jurisdiction granting a foreign judgment full faith and credit determines the methods by which the judgment may be enforced. Lynde v. Lynde, 181 U.S. 183, 187, 21 S.Ct. 555, 45 L.Ed. 810 (1901); Restatement (Second) of Conflict of Laws § 99 (1971); R. Leflar, Supra, § 76 at 176-77. Indeed, the state enforcing a foreign judgment may use equitable means normally available to it in enforcing judgments even if those means are not available in the forum that rendered the judgment. See Glanton v. Renner, 285 Ky. 808, 149 S.W.2d 748, 751 (1941). Further, a federal court sitting in diversity follows the practice of the state in which it sits with regard to equitable enforcement of judgments. See Stephenson v. Duriron Co., 292 F.Supp. 66, 80 (S.D.Ohio 1968), Aff'd 428 F.2d 387, 392 (6th Cir.), Cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 247 (1970). Federal courts enforcing foreign alimony awards follow the general rule. See Howard v. Jennings, 146 F.2d 332, 334-35 (8th Cir. 1945).

Alabama courts employ their equitable powers to enforce alimony judgments. See McGugin v. McGugin, 357 So.2d 347, 351 (Ala.Civ.App.1978); Moore v. Moore, 57 Ala.App. 735, 331 So.2d 742, 744 (Ala.Civ.App.1976); Stone v. State, 42 Ala.App. 485, 485-86, 168 So.2d 266, 266-67 (1964). Further, equitable powers will be used in enforcing a foreign support judgment. See Fowler v. Fowler, supra, 45 Ala.App. at 356, 230 So.2d at 746. Even contempt of court that may result in imprisonment is available, See Stone v. State, supra, 42 Ala.App. at 485-86, 168 So.2d at 266-67, and Alabama courts exercise equitable powers to eliminate the interest of one party in a home formerly jointly owned. See McGugin v. McGugin, supra, 357 So.2d at 351; Moore v. Moore, supra, 331 So.2d at 744. Directly relevant to the present situation, one party in domestic litigation has been restrained from disposing of assets until satisfaction of an alimony judgment. Awad v. Awad,54 Ala.App. 154, 156, 306 So.2d 21, 23 (1975). There can be little question of the district court's authority to equitably enforce its judgment, and the district court committed no error in doing so. 8

Francis Dorey argues that the district court erred in its award of interest. He apparently complains of interest accumulating on interest. The award of interest on interest is proper in those situations in which a judgment grants interest on an amount resulting from an unsatisfied judgment on which interest has accrued. Hellenic Lines, Ltd. v. Gulf Oil Corp., 359 F.2d 403, 404 (2d Cir. 1966). Mr. Dorey also contends that the California judgment did not specify the rate of interest applicable. We need do no more than note that the judgment set interest at the rate "allowed by law."

II. PENALTIES FOR FAILURE TO MAKE DISCOVERY

Francis Dorey and his attorney, Leo Costello, challenge the authority of the district court to impose upon them sanctions of

$599.06, as reasonable expenses incurred by plaintiff Edith W. Dorey in proving the facts recited in the pleadings and opinion herein and in establishing the genuineness of the documents admitted into evidence . . . and the additional sum of $2,000.00 as a...

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