Alexander v. Alexander

• Decision Date: 01 February 1932
• Docket Number: 13341.
• Citation: 162 S.E. 437,164 S.C. 466
• Parties: ALEXANDER v. ALEXANDER.
• Court: South Carolina Supreme Court

162 S.E. 437

164 S.C. 466

ALEXANDER v. ALEXANDER.

No. 13341.

Supreme Court of South Carolina

February 1, 1932

Appeal from Common Pleas Circuit Court of Spartanburg County; M. C Foster, Judge.

Action by Josepha T. Alexander against Alonzo B. Alexander. An order was entered awarding judgment to the plaintiff on the first cause of action, and sustaining a demurrer to the second cause of action, and the defendant appeals.

Order affirmed.

Order of Judge Foster was as follows:

This action was instituted by the service of a summons and complaint upon the defendant, a resident of Spartanburg county, S. C., on April --, 1931.

Two causes of action are alleged in the complaint. The first cause of action seeks judgment against the defendant for certain sums claimed by the defendant as past-due alimony by virtue of a decree of the circuit court for Anne Arundel county, Md., which was alleged to be a court of general jurisdiction duly created by the laws of the state of Maryland and for reasonable attorneys' fees necessitated by the employment of attorneys to prosecute this action. The second cause of action seeks to have the decree of the Maryland court confirmed and adopted and entered as a judgment of this court on the judgment rolls of Spartanburg county, S. C.

The third paragraph set forth in the first cause of the action in the complaint is as follows:

Paragraph 3. That on the 21st day of February, 1928, in a cause entitled Alonzo B. Alexander, Plaintiff, v. Josepha T Alexander, Defendant and Cross-Plaintiff, in said court which court had jurisdiction of both parties therein, a decree was rendered by Hon. Robert Moss, A. J., which decree is duly entered, is a final judgment of said court, and is as follows:

"This cause standing ready for hearing and being submitted, the solicitors for the respective parties not wishing to be heard, and the proceedings being read and considered.

"It is upon this 21st day of February, 1928, by the Circuit Court for Anne Arundel County, in Equity, adjudged, ordered and decreed that the above named defendant, Josepha T. Alexander, be and she is hereby divorced a mensa et thoro from the plaintiff, Alonzo B. Alexander; the said defendant, Josepha T. Alexander, to have the guardianship and custody of their infant child, Alonzo B. Alexander, Junior. And it is further ordered that the plaintiff's bill of complaint herein be and the same is hereby dismissed with costs. This decree being granted upon the defendant's cross-bill.

"And it is further adjudged, ordered and decreed that the said plaintiff, Alonzo B. Alexander, be and he is hereby ordered and required to pay unto the said defendant, Josepha T. Alexander, the sum of one hundred dollars ($100.00) per month, as alimony for the support of herself and said infant child, so long as the said defendant, Josepha T. Alexander resides with the said child in the United States; the first payment of said alimony to be made on the first day of March, 1928, for the month of March, 1928, and like payments of one hundred dollars ($100.00) each per month, on the first day of each succeeding month thereafter. And should the said defendant, Josepha T. Alexander, return to her native country, the said plaintiff will be at liberty to ask for a reduction of this alimony, based on the purchasing value of the dollar at her home, as compared with the purchasing value of the dollar in the United States. And it is further ordered that the plaintiff, Alonzo B. Alexander, pay the costs of this suit."

The fourth paragraph of the complaint alleges that only $50 has been paid to plaintiff by the defendant for the period of January 1, 1931 through April 1, 1931.

In his answer, the defendant admitted all material allegations of the first cause of action except any liability for attorneys' fees. The defendant also denied the allegation of paragraph 5 to the effect that the plaintiff and her infant child are dependent upon the payment of alimony as ordered, but I do not deem this allegation material in considering the issues arising herein.

The defendant demurred to the second cause of action on the ground that the decree of the Maryland court is not a final adjudication of the rights of the parties in respect to any future installments of alimony, and that the said judgment, which provides for the payment of future alimony, is subject to the inherent jurisdiction of the Maryland courts to change the amount of said decree upon proper application therefor and due showing.

On June 9th, 1931, plaintiff's attorneys served upon defendant's attorneys a notice of a motion to be made before me on June 13th, for judgment in favor of plaintiff on the pleadings as to the first cause of action, and to dismiss the demurrer as to the second cause of action. At the hearing on this motion, defendant's attorneys moved to be permitted to amend their answer by denying that the decree sued upon is a final judgment under the laws of Maryland so as to be entitled to full faith and credit in South Carolina according to the ""full faith and credit clause" of the United States Constitution. Over objection of plaintiff's attorneys on June 29, 1931, an order was passed by this court allowing defendant's attorneys "to amend their Answer by denying the allegations to the effect that the decree sued upon is a final judgment under the laws of Maryland or that defendant is due or liable to the plaintiff for any alleged installments under said decree in this action; and further that defendant be allowed to set up and allege in substance that under the laws and decisions of the Courts of Maryland, the decree for the payment of the monthly sums referred to embraces both claims for alimony for the wife as well as for allowance for the support of the infant child, which is not alimony, and that the courts of said State have power and authority to change and modify the said allowance at any time, both with respect to future installments as well as to past installments, and that the said decree therefore does not constitute such a final judgment unalterable in its character, as is entitled to full faith and credit in this State, and that the courts of this State have no power or jurisdiction to enforce the same or to render judgment for any alleged past-due installments against the defendant, and that the defendant is not indebted to the plaintiff in any amount recoverable in this action."

It was agreed by attorneys for plaintiff and defendant that the motion for judgment upon the pleadings should be regarded and treated as applying to the amended answer without other or further service. As to the motion to dismiss the demurrer to the second cause of action, it was agreed that the demurrer should be considered and determined upon its merits, and that, in considering same, the court should accept as being in evidence before the court and consider as bearing upon the demurrer all the decisions of the courts of Maryland and statutes of said state which were or should be cited by counsel on either side. The complaint, the original answer and demurrer, the notice of motion for judgment upon the pleadings and for dismissal of the demurrer, and the order permitting an amendment of the answer, shall be understood to be incorporated in this order, and are made a part hereof.

The pleadings, and position of counsel in relation thereto, present for determination the following questions; the first five pertaining to the first cause of action, and the sixth to the second cause of action and the demurrer thereto:

(1) Is a decree of the Maryland courts awarding alimony a final decree entitled to full faith and credit in South Carolina?

(2) Is the $100 monthly payment referred to in the Maryland decree alimony or something else?

(3) Is alimony, as regarded by the courts of Maryland, a recoverable debt?

(4) Does a court of law in South Carolina have power to enforce a decree of a Maryland court of equity?

(5) Should reasonable attorney's fees be allowed plaintiff in the event of judgment in her favor?

(6) Is the Maryland decree final as to future payments provided for in said decree?

The decision of the Supreme Court of the United States 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, is conclusive of the first question. The Supreme Court of Maryland in Rosenberg v. Rosenberg, 152 Md. 50, 135 A. 840, referring to the Sistare Case, said: "That was a suit brought in Connecticut for the recovery of overdue and unpaid installments of alimony under a decree of the Supreme Court of the state of New York. By a statute of that state it was provided that a decree for alimony could be modified by the court at any time, on application of either party to the suit and after the other party had been duly notified. This was construed by the federal Supreme Court as not authorizing the modification of the decree as to installments of alimony which had accrued prior to the application to have it changed. The Supreme Court said that 'every reasonable implication must be resorted to against the existence of such power in the absence of clear language manifesting an intention to confer it,' and it was decided that the suit in Connecticut on the New York decree was maintainable, and that the opposite ruling by the Supreme Court of Connecticut was in conflict with the full faith and credit clause of the federal Constitution. The following conclusions were stated: 'First. That, generally speaking, where a decree is rendered for alimony and is made payable in future installments the right to such 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...