Boyer v. Andrews

• Citation: 143 Fla. 462,196 So. 825
• Parties: BOYER v. ANDREWS.
• Decision Date: 21 June 1940
• Court: United States State Supreme Court of Florida

196 So. 825

143 Fla. 462

BOYER v. ANDREWS.

Florida Supreme Court

June 21, 1940

Error to Circuit Court, Pinellas County; John U. Bird, Judge.

Action by Mary Boyer, an unmarried woman, for the use and benefit of Delos W. Boyer, a minor, by his next friend, Mary Boyer, an unmarried woman, against Delos W. Boyer to recover past-due installments for support and maintenance of the minor awarded under an Illinois decree. To review a final judgment on demurrer dismissing the action, plaintiff brings error. Upon suggestion of the death of Delos W. Boyer, the defendant after the case had been brought to the Supreme Court by writ of error, Helen C. Andrews, as administratrix of the estate of Delos W. Boyer, deceased, was substituted as party defendant in error pursuant to an order permitting substitution of party defendant in error.

Judgment reversed, with directions.

COUNSEL

Carey & Harrison, of St. Petersburg, for plaintiff in error.

No appearance for defendant in error.

OPINION

PER CURIAM.

This writ of error brings for review final judgment on demurrer dismissing plaintiff's action.

Mary Boyer, for the use and benefit of and as the next friend of Delos Boyer, a minor, brought an action at law against Delos W. Boyer, the father, in the Circuit Court of Pinellas County, Florida, to recover past due installments for support and maintenance of said minor, awarded under an Illinois decree.

The single count declaration alleged in substance that on or about June 26, 1925, in the Superior Court of Cook County Illinois, in a suit wherein Mary Boyer as plaintiff was suing Delos W. Boyer (the father), a certain judgment and decree was entered providing in part that Mary Boyer shall have the care, custody and education of the child, Delos W. Boyer, but that said defendant, Delos W. Boyer (the father), shall have the right to have said child during the months of July and August of each year, and that Delos W. Boyer (the father) pay to Mary Boyer $10 per week for the support and maintenance of said minor child until further order of the Court; that although said judgment was rendered by a court having full jurisdiction of the parties and the subject matter and was a personal judgment against said defendant, who is the same defendant in this suit, yet he has failed and refused and does fail and refuse to pay said judgment and the amount provided therein to be paid by him; that said judgment is in full force and effect, and defendant owes plaintiff for the use and benefit of Delos W. Boyer, a minor, the sum of $10 per week from June 26, 1925, to the present time, which sum thus due amounts to $6,160, wherefore plaintiff claims $10,000 damages.

Defendant demurred to the declaration on the grounds that (1) the declaration affirmatively shows a want of jurisdiction over the subject matter, (2) the declaration fails to state a cause of action at law, and (3) that the matters complained of in said declaration are cognizable only by a court of chancery, if at all.

Final judgment was entered sustaining the demurrer, and upon plaintiff's declination to amend her declaration, the action was dismissed, and defendant was awarded his costs against plaintiff.

Writ of error was taken to that judgment.

Upon suggestion of the death of Delos W. Boyer (the father) on March 26, 1938, after the case had been brought here by writ of error, an order was entered permitting substitution of party defendant in error. Thereafter, pursuant to that order, Helen C. Andrews represented that she had been legally appointed and was acting as administratrix of the estate of Delos W. Boyer, deceased, and she, in her representative capacity, was substituted as party defendant in error.

There is before this Court only the record and the brief of plaintiff in error, no brief having been filed by defendant in error.

The sole question to be determined is: When a court of another state, having jurisdiction of the parties and of the subject matter, orders a defendant to pay a stated sum each week for the support and maintenance of his minor child, and he fails and refuses to do so, and moves his residence to this State, does a Circuit Court of this State have authority and jurisdiction to entertain a common law action based upon the past due installments which have accrued under said foreign judgment and decree?

In Beale's work on Conflicts of Laws we find the following:

'A valid foreign judgment for alimony in a lump sum, being an ordinary money judgment, will be enforced. Where, however, the alimony takes the form of an ordinary decree that so much be paid weekly or monthly until further order the case is different. As to installments not yet due it is clear that no order can be made. Even as to installments overdue it was generally held at first that, since the decree could be modified at any time, it was never a final judgment, and nothing could be recovered on it. But later it was held that recovery could be had if the court that rendered the decision could not modify it as to installments already due, though if it had the power of modification as to installments already due no action would lie on the judgment in another state. Finally, most of them following the case of 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, it was held that action would lie on a foreign judgment as to unpaid installments if in fact the first judgment had not been modified as to these installments. Where action is allowed on a foreign decree for care of children, the course of decision is similar.' 2 Beale-Conflict of Laws 1392, Sec. 435.2.

In the case of 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, the Supreme Court of the United States held:

'A decree for the future payment of alimony is, as to instalments past due and unpaid, within the protection of the full faith and credit clause of the Federal Constitution, provided that no modification of the decree was made prior to the maturity of such installments, unless by the law of the state in which the decree was rendered its enforcement is so completely within the discretion of the courts of that state that they may annual or modify the decree, even as to overdue and unsatisfied installments. * * *

'A judgment enforceable in the state where rendered must be given effect in another state, under the full faith and credit clause of the Federal Constitution, although the modes of procedure to enforce its collection may not be the same in both states.'

In discussing and reconciling two of its previous decisions, Barber v. Barber, 21 How. 582, 16 L.Ed. 226, and Lynde v. Lynde, 181 U.S. 183, 187, 21 S.Ct. 555, 45 L.Ed. 810, 814, that were thought by counsel there to be in conflict, the Supreme Court of the United States in the case of Sistare v. Sistare, supra, said:

'We think the conclusion is inevitable that the Lynde Case cannot be held to have overruled the Barber Case, and therefore that the two cases must be interpreted in harmony, one with the other, and that on so doing it results: First, that, generally speaking, where a decree is rendered for alimony and is made payable in future instalments, the right to such instalments 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 made prior to the maturity of the instalments, since, as declared in the Barber Case, 'alimony decreed to a wife in a divorce of separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is.' Second, that this general rule, however, does not obtain where, by the law of the state in which a judgment for future alimony is rendered, the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive the instalments ordered by the decree to be paid, even although no application to annual or modify the decree in respect to alimony had been made prior to the instalments becoming due.'

It has been held that so long as a judgment for alimony payable in installments is absolute in its terms and remains unmodified or at least until an application for modification has been made, it is final as to installments which have accrued and is entitled to full faith and credit in the courts of a sister state in an action founded upon it. Holton v. Holton, 153 Minn. 346, 190 N.W. 542, 41 A.L.R. 1415. This has likewise been held to be true where a final decree refusing to grant a divorce to either party is appealed, and pending disposition of the appeal the Supreme Court orders payment of temporary alimony to the wife, and the Supreme Court later affirms the decree without mentioning suit money in the affirmance decision. Paul v. Paul, 121 Kan. 88, 245 P. 1022, 46 A.L.R. 1197.

It has also been held that a judgment for alimony payable in installments, rendered upon entering a decree for divorce, constitutes a final judgment within the full faith and credit clause of the Federal Constitution so far as accrued...