Ames v. Ames

• Decision Date: 27 October 1982
• Docket Number: No. 15-79-04860,15-79-04860
• Citation: 652 P.2d 1280,60 Or.App. 50
• Parties: Constance J. AMES, Respondent, v. Francis Marion AMES, Appellant. ; CA A20531.
• Court: Oregon Court of Appeals

Page 1280

652 P.2d 1280

60 Or.App. 50

Constance J. AMES, Respondent, v. Francis Marion AMES, Appellant.

No. 15-79-04860; CA A20531.

Court of Appeals of Oregon.

Argued and Submitted Jan. 29, 1982.

Decided Oct. 27, 1982.

Ronald B. Terzenbach, Eugene, argued the cause for appellant. With him on the brief was Jaqua & Wheatley, P.C., Eugene.

Ausey H. Robnett III, Eugene, argued the cause for respondent. With him on the brief was Atherly, Butler & Burgott, Eugene.

Before BUTTLER, P.J., and WARDEN and WARREN, JJ.

WARDEN, Judge.

This is a proceeding to register a Florida judgment in Oregon pursuant to the provisions of the Uniform Enforcement of Foreign Judgments Act, ORS ch. 24. The trial court granted the petition for registration, and defendant appeals, contending that the Florida judgment is not entitled to full faith and credit in Oregon and that the action is barred by the statute of limitations.

Plaintiff and defendant were married in Reno, Nevada, on October 18, 1952. They resided together in California until August 13, 1953, when they separated. In the early part of February, 1954, defendant left the state of California. Approximately two weeks later, on February 25, 1954, a daughter was born of the marriage. Plaintiff instituted divorce proceedings and obtained an interlocutory decree in Alameda County, California, on October 15, 1954. The decree awarded custody of the child to plaintiff, but did not provide for child support, because plaintiff had not known where defendant could be served and so was unable to obtain jurisdiction for an in personam judgment against him.

In 1962, plaintiff discovered that defendant was living in Miami, Florida, and initiated proceedings in California for child support under the Uniform Reciprocal Enforcement of Support Act. On April 23, 1962, an order for support was entered by the circuit court in Dade County, Florida. The order directed defendant to pay plaintiff $40 per month for the support and maintenance of the child. The order also required defendant to inform the Florida "Assistant State Attorney" of any change of address. Defendant made 14 of the required payments.

After several of the payments had become delinquent, the Alameda County Probation Department informed plaintiff that it had attempted to locate defendant but was unable to do so. Plaintiff made further inquiries in an effort to find him, but she was unsuccessful. Defendant changed residences many times after the support order was entered. He lived in several different trailer courts in the Miami area, moved to New York for two months in 1965 and then returned to Florida, residing in Fort Myers for a year and a half. In July, 1966, he moved to Portland, where he lived for several years before moving to Eugene. Neither plaintiff nor the Florida authorities were notified by defendant of his changes of address.

On August 28, 1969, plaintiff wrote to the Alameda County Probation Department, informing them that defendant was no longer in the state of Florida, that she had no information of his whereabouts and that they should consider the case closed. A copy of this letter was sent to the Florida authorities. On October 10, 1969, the Florida circuit court in Dade County dismissed the case on the ground that the case in the initiating state, California, had been dismissed. Plaintiff was unaware that the case had been dismissed, and in fact, it had not been dismissed in California.

In 1976, defendant telephoned plaintiff and told her that he was living in Eugene, Oregon. On May 16, 1979, plaintiff filed a petition in the circuit court in Lane County for registration of the 1962 order of support entered by the Florida court. Defendant filed a demurrer to the petition on the ground that it did not state a claim upon which relief could be granted. The demurrer was sustained on July 30, 1979. Plaintiff then filed a motion for an extension of time within which to file an amended petition. The motion was granted, allowing plaintiff time to take action in Florida to set aside the 1969 order of dismissal and to reinstate the case in the Florida court. On November 1, 1979, the Florida court entered an order setting aside the order of dismissal and reinstating the April 3, 1962, support order. Plaintiff filed an amended petition in the Oregon court on November 8, 1979, requesting that the 1962 order of support be registered as a judgment in Oregon.

After trial to the court, an order was entered on February 25, 1981, awarding plaintiff judgment against defendant in the amount of $6,792.38 for child support accrued from April 13, 1962, to October 10, 1969, plus interest. On March 13, 1981, a supplemental judgment order was entered awarding plaintiff $2,033.04, the amount of child support accrued from October 10, 1969, to February 25, 1972, plus interest.

Defendant's first two assignments of error raise one issue: whether the trial court erred in holding that the 1962 order of support is entitled to full faith and credit in Oregon.

The Uniform Enforcement of Foreign Judgments Act establishes a summary procedure for converting a valid judgment of a sister state into an Oregon judgment enforceable in Oregon courts. Stone v. Stone, 268 Or. 446, 449, 521 P.2d 534 (1974). A valid foreign judgment is defined as:

"Any judgment, decree or order of a court * * * which is entitled to full faith and credit in this state." ORS 24.105 Defendant first contends that the 1962 order of support is not entitled to full faith and credit because the 1969 order of dismissal annulled the 1962 order, eliminating his liability for child support between April 3, 1962, and October 10, 1969. Under the holding in Sistare v. Sistare, 218 U.S. 1, 16-17, 30 S.Ct. 682, 686, 54 L.Ed. 905 (1910), support payments ¹ that become absolute and vested on becoming due are protected by the full faith and credit clause of the United States Constitution, ² provided no modification of the order has been made before the maturity of the installments.

The 1962 support order meets the requirement set forth in Sistare. The Supreme Court of Florida has held that Florida courts do not have authority under Florida law to modify a decree for child support in such a manner as to affect or cancel past due installments. Benson v. Benson, 369 So.2d 99 (Fla. 4th DCA 1979); Hynes v. Hynes, 277 So.2d 557 (Fla. 3d DCA 1973). The Florida Court of Appeals has specifically held:

"The right of a wife to payment of alimony and child support in arrears is vested and while it is within the discretion of the court to refrain from holding the husband in contempt for non-payment, the wife is entitled to enforcement of the payments by legal process and by such equitable remedies as the trial court may determine to be appropriate or necessary." Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d Dist.Ct.App.1977). (Emphasis supplied.)

Under Florida law, the 1969 order of dismissal did not divest plaintiff of her right to collect past due child support payments; it merely ended defendant's obligation to make further payments. The 1962 order is, therefore, entitled to full faith and credit in Oregon courts, at least insofar as it ordered defendant to make payments until October 10, 1969.

Defendant next contends that the November 1, 1979, order that set aside the 1969 dismissal order is not entitled to full faith and credit, because the Florida court had no jurisdiction to entertain the motion, and, because defendant was not notified of the proceeding by service of process, he had no opportunity to challenge the proceeding. The motion to set aside the 1969 order asserted that, pursuant to Rule 1.540(b) of the Florida Rules of Civil Procedure (FRCP), the court had the power to entertain an independent action to relieve a party from a judgment, decree or order for fraud upon the court. The order setting it aside found the "matter and facts set forth therein" to be true. FRCP 1.540(b) provides:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment or decree is void; (5) the judgment or decree has been satisfied, released or discharged or a prior judgment or decree upon which it is based has been reversed or otherwise vacated or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, decree, order or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or decree for fraud upon the court." (Emphasis supplied.) The motion to set aside did not allege any act of fraud on the court to take it out of the one-year limitations period, but cited a 1924 Florida case (which predates the FRCP) and a criminal case for the proposition that mistakes by the court may be corrected by independent action at any time. That does not appear to be the law in Florida today. Absent an allegation of fraud in the motion or a finding of fraud by the trial court, the Florida courts do not appear to have jurisdiction to entertain an independent motion to set aside an order under FRCP 1.540(b) more than one year after the order was entered. Pilz v. Pilz, 395 So.2d 591 (Fla. 2d Dist.Ct.App.1981). In this case, the motion to set aside was...