Bjorgo v. Bjorgo, A--10906

• Decision Date: 13 April 1966
• Docket Number: No. A--10906,A--10906
• Citation: 402 S.W.2d 143
• Parties: Marie BJORGO, Petitioner, v. Donald BJORGO, Respondent.
• Court: Texas Supreme Court

Page 143

402 S.W.2d 143

Marie BJORGO, Petitioner, v. Donald BJORGO, Respondent.

No. A--10906.

Supreme Court of Texas.

April 13, 1966.

Rehearing Denied May 18, 1966.

Dee D. Miller, Dist. Atty., Amarillo, B. G. Compton, Asst. Dist. Atty., for petitioner.

Wayne B. Barfield, Amarillo, for respondent.

CALVERT, Chief Justice.

In a proceeding by Marie Bjorgo against Donald Bjorgo under Article 2328b, Vernon's Texas Civil Statutes, the Texas version of The Uniform Reciprocal Enforcement of Support Act, the trial court denied a motion by the defendant for summary judgment, granted a motion by the plaintiff for summary judgment, and rendered judgment ordering the defendant to pay $10.00 weekly for the support of his illegitimate child in Kentucky. The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause to that court for further proceedings in accordance with its opinion. The tenor of the opinion is that the motion of the plaintiff for summary judgment should have been denied, and that the defendant's motion for summary judgment should have been granted and judgment rendered that the plaintiff take nothing by her suit. 391 S.W.2d 528. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

The admitted or uncontroverted facts established by the summary judgment proofs will be stated. On May 26, 1954, the Jefferson County Court, Juvenile Division, of the Commonwealth of Kentucky, entered a judgment in the case of Marie Bjorgo v. Don Bjorgo which recited that the defendant was accused by Marie Bjorgo by affidavit and by warrant sworn to on March 24 as being the father of Shirley Marie Bjorgo, and continued: 'It is therefore considered, ordered and adjudged that the defendant, Don Bjorgo, pay to the complainant the some (sic) of $520.00 per year for 16 years in weekly installments of $10.00 each for the benefit of said child. * * *' The parties agree that Kentucky has a statute, known as the Bastardy Act, which authorized the judgment.

This proceeding was begun in Kentucky as the initiating state under that State's Uniform Support of Dependent's Act and was transmitted to Texas as the responding State. Regularity of the proceedings under the Kentucky and Texas Support Act statutes is not questioned.

The summary judgment entered by the trial court did not award the plaintiff a recovery of the accrued weekly payments which were delinquent under the Kentucky judgment. Instead, it ordered the defendant to make future weekly payments. In reversing the trial court's judgment, the Court of Civil Appeals at Amarillo, with the Chief Justice dissenting, held that (1) the law of Texas, the responding state, not that of Kentucky, the initiating state, governs in deciding whether the defendant has a duty to support his illegitimate child; (2) the judgment of the Kentucky court is not entitled to full faith and credit in the courts of this State under Article IV of the Constitution of the United States; and (3) enforcement of the Kentucky judgment would deny to the defendant equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States. We are satisfied that the reasons thus given for reversing the trial court's judgment are unsound.

In support of its holding that the duty of the defendant to support his child is determinable by the law of Texas and not by the law of Kentucky, the Court of Civil Appeals cited Freeland v. Freeland, Tex.Civ.App., 313 S.W.2d 943 (1958), no writ history, and several decisions, to be noticed later, by the courts of New Jersey, Maine, Nevada, the District of Columbia and Florida.

Freeland v. Freeland is not in point on the facts. It involved an indirect effort through use of the Indiana Reciprocal Support of Dependents Law to obtain a judgment in a district court of Dallas County, Texas, altering and enforcing a child support judgment of a district court of Tarrant County, Texas. The Court of Civil Appeals in that case held that under our decision in Ex parte Goldsmith, 155 Tex. 605, 290 S.W.2d 502 (1956), the only Texas court having jurisdiction to alter or modify the judgment was the court which entered it, and that under our holding in Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 (1957), the original support order of the Tarrant County district court could only be enforced by contempt proceedings. The holding thus was that jurisdiction of one Texas court to alter and enforce a child support order of another Texas court is governed by the law of Texas, and that jurisdiction as fixed by Texas law cannot be changed by initiating a proceeding in another state under a Uniform Support of Dependents Law. That is not the problem before us in this case.

The cases cited from other jurisdictions either do not support the holding that the defendant's duty of support is determinable by the law of the responding state rather than the law of the initiating state or they are distinguishable. The New Jersey court in Pfueller v. Pfueller, 37 N.J.Super. 106, 117 A.2d 30 (1955), the Maine court in Rosenberg v. Rosenberg, 152 Me. 161, 125 A.2d 863 (1956), and Lambrou v. Berna, 154 Me. 352, 148 A.2d 697 (1959), and the Nevada court in State ex rel. Lyon v. Lyon, 75 Nev. 495, 346 P.2d 709 (1959), held nothing more than this: That a mere certificate of a duty of support by a court of an initiating state, based upon an affidavit or sworn pleading of a complainant or upon an ex parte hearing and forwarded to a court of a responding state, all as authorized by the Uniform Support Law, does not establish the duty or the extent thereof; and that it is the obligation of the court of the responding state to determine duty and the extent thereof from evidence adduced in a hearing before it. None of the cases held that in determining duty and extent the court in the responding state must apply that state's substantive law. The Florida Uniform Support Law, unlike the Texas law at the time this proceeding was filed and judgment was entered, has provided since 1952 that an obligor's duty of support is determined by the law of the state in which he is found or in which he was present during the period for which support is sought. The Florida decisions in Jackson v. Hall, 97 So.2d 1 (1957) and Clarke v. Blackburn, Fla.App., 151 So.2d 325 (1963) grew out of proceedings by the states of Illinois and North Carolina, respectively, to extradite Florida residents under the criminal enforcement provisions of the Uniform Support Laws of those states. The Supreme Court of Florida held, in keeping with its own statutory provision, that whether the persons sought to be extradited owed duties of support, and the extent thereof, could only be determined by the Florida courts according to Florida law. With these Florida decisions before it, the Municipal Court of Appeals for the District of Columbia, in Cobbe v. Cobbe, 163 A.2d 333 (1960), ordered a trial court to certify to a Florida court that it found a support relationship between a Florida resident and his minor daughter in the District of Columbia, leaving determination of actual duty of support and the extent thereof to the Florida court according to the substantive law of that state.

We have analyzed the foregoing cases at some length because the Court of Civil Appeals seemingly regarded them as establishing a uniform holding in all state jurisdictions that in cases of this kind whether there is a duty of support is always to be determined by the substantive law of the responding state. Our analysis discloses that only the Florida court has so held. Unlike the Florida statute, Article 2328b--3 contained the following provision when this case was tried and judgment was entered:

'Sec. 7. Duties of support enforceable under this law are those imposed or imposable under the laws of any state where the alleged obligor was present during the period for which support is sought Or where the obligee was present when the failure to support commenced, at the election of the obligee, but shall not include alimony for a former wife.' ¹

The Texas statute thus gave the obligee, Shirley Marie Bjorgo, a 'choice of law' to be applied in determining defendant's duty of support, the choice to be exercised by Marie Bjorgo, the plaintiff. See Smith v. Smith, 125 Cal.App.2d 154, 270 P.2d 613, 618 (1954). She chose the law of Kentucky where Shirley Marie was present when the failure to support commenced. This brings us to a consideration of the holding by the Court of Civil Appeals that the Kentucky judgment is not entitled to full faith and credit.

The holding of the Court of Civil Appeals that the Kentucky judgment is not entitled to full faith and credit seems to us to be based upon a misconception of the nature of the judgment of the Texas trial court. The trial court's judgment was interpreted as ordering the defendant to make future weekly support payments in compliance with the terms of the Kentucky judgment. Proceeding to apply the law on that premise, and citing ...