Brady v. Brady

• Decision Date: 12 December 1967
• Docket Number: No. 12617,12617
• Citation: 158 S.E.2d 359,151 W.Va. 900
• Court: West Virginia Supreme Court
• Parties: Virginia BRADY v. Joseph BRADY.

Page 359

158 S.E.2d 359

151 W.Va. 900

Virginia BRADY v. Joseph BRADY.

No. 12617.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 12, 1967.

Decided Nov. 7, 1967.

Dissenting Opinion Dec. 12, 1967.

Syllabus by the Court

1. In a case where a wife obtains in West Virginia a decree for separate maintenance in a suit asking only for that, and the husband later goes to Arkansas and obtains on constructive service a divorce in which the decree provides for payment of the same amount as was set in West Virginia, the wife cannot thereafter claim under the West Virginia decree but must rely on the Arkansas decree as it is entitled to full faith and credit in West Virginia unless she successfully attacks the Arkansas decree on the ground that the Arkansas Court did not have jurisdiction to render the decree. Under West Virginia statutes and case law a divorce decree supersedes a prior decree in a separate maintenance suit between the same parties because it destroys the status on which the separate maintenance rests.

2. A divorce decree, under the laws of West Virginia, terminates the right of a wife to separate maintenance and support.

3. 'It is the duty of a husband to maintain and support his wife while the marital relation exists, unless by her conduct of for some other sufficient reason he is relieved of that duty; and a court of equity has jurisdiction, in a suit for separate maintenance and support, to require him to perform such duty.' Pt. 1, syllabus, Snyder v. Lane, 135 W.Va. 887 (65 S.E.2d 483).

4. Full faith and credit must be given to the judgment or decree of a sister state if it is not successfully attacked on jurisdictional grounds.

George M. Cooper, Sutton, for appellant.

William M. Kidd, Sutton, for appellee.

BERRY, Judge.

This proceeding arose out of a suit for separate maintenance instituted by the appellee, Virginia Brady, in the Circuit Court of Braxton County against the appellant, Joseph Brady, in which on February 28, 1958, on order was entered by John H. Fox, Special Judge, that the said Joseph Brady pay to the said Virginia Brady the sum of $200 per month for the support and maintenance of the appellee and their infant child, Jack Lawrence Brady. On October 10, 1963, the appellant herein obtained a divorce from the appellee in Arkansas by order of publication. On or about February 17, 1964 the appellant filed a petition with a certified copy of the Arkansas divorce decree attached thereto in the Circuit Court of Braxton County praying that the judgment in the separate maintenance suit be modified, altered and changed and that he not be required to pay the said Virginia Brady anything for her maintenance and support because of a divorce obtained from her in Arkansas which relieved him of such payments. The Arkansas decree not only granted to Joseph Brady a divorce but granted as alimony and child support the same amount that the West Virginia Court had previously decreed for the maintenance and support of the minor child and Virginia Brady, by ordering the said Joseph Brady to pay $200 per month for the support and maintenance of the minor child, Jack L. Brady, and the said Virginia Brady. While not so termed, the money awarded to the wife in the Arkansas decree would technically be considered as Alimony in West Virginia since it was payable as a result of and subsequent to a divorce. Virginia Brady filed an answer to the petition of Joseph Brady in which she did not attack or challenge the Arkansas divorce decree in any manner but merely asked that the petition be dismissed because no change of condition was alleged since the same sum was awarded by the separate maintenance suit and the Arkansas decree for divorce, as shown by the exhibit filed with the petition, and therefore was not subject to modification. The said Virginia Brady then filed a petition in the Circuit Court of Braxton County on December 8, 1964, alleging that the order of the Circuit Court of Braxton County of February 28, 1958, had not been superseded, annulled or modified and praying that the said Joseph Brady be compelled to pay the said Virginia Brady the amount in arrears of $245 required to be paid under said judgment and that he be adjudged in contempt for the failure to make such payments. The said Joseph Brady answered this petition and denied that he owed the said Virginia Brady the amount she claimed and asserted instead that he had overpaid her and owed her nothing. He later abandoned his claim that he should be given credit for certain payments. The Judge of the Circuit Court of Braxton County disqualified himself as he had done initially and transferred the case to the Circuit Court of Nicholas County. On January 5 1966 the Circuit Court of Nicholas County, after a full hearing on September 24, 1965, found that the Arkansas divorce decree of October 10, 1963 did not supersede or annul the West Virginia decree of separate maintenance dated February 28, 1958, that said decree should not be modified and that the said Joseph Brady owed the said Virginia Brady the sum of $2254.13, and dismissed the petition filed by the appellant. The trial court also found the said Joseph Brady guilty of contempt for the failure to pay the maintenance and support money to Virginia Brady under the West Virginia decree and sentenced him to 60 days in jail and ordered him to pay the costs of the proceeding, but suspended the sentence for a period of 30 days in which to allow the said Joseph Brady to purge himself of said contempt by paying the amount found to be due the said Virginia Brady, together with the costs of the proceeding. On January 5, 1966 Joseph Brady, by counsel, moved the Circuit Court of Nicholas County to grant him a new trial, which was overruled on that date.

Upon application to this Court an appeal and supersedeas to the judgment of January 5, 1966 were granted October 10, 1966. The case was submitted for decision upon arguments and briefs at the September Regular Term, 1967 of this Court.

The appellant, Joseph Brady, proved his divorce obtained in Arkansas by filing in this proceeding a certified copy of the decree which apparently complies in substance with the provisions of Rule 44(a), R.C.P., dealing with proof of official records, although the certificate thereon should have been more specific that the decree came from the custody of the signer thereof. No objection was made to its form, however.

Although there was no personal service on the said Virginia Brady or personal appearance by her in the Arkansas divorce proceedings she did not attack the judgment in any manner and has waived any question as to its validity in its entirety in this proceeding. The Arkansas divorce decree was therefore made a judgment in this State. Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577. The entire judgment would have to be given full faith an credit and not just a part of it as far as the appellant, Joseph Brady, is concerned, because he instituted the suit and apparently was personally present in Arkansas, under the jurisdiction of its courts when the judgment was rendered. The pertinent part of the Arkansas decree reads as follows:

'IT IS, THEREFORE, BY THE COURT considered, ordered, adjudged and decreed that the plaintiff be, and he is hereby, awarded a complete and absolute divorce from the defendant herein; and the plaintiff is hereby directed to pay $200.00 per month toward the support and maintenance of the minor child, Jack L. Brady, and the defendant, Virginia M. Brady; and the plaintiff is hereby restored to all rights and privileges of a single and unmarried person.' There was no hiatus between the provisions of the identical matters in the West Virginia maintenance and support decree of February 28, 1958, and the alimony and child support in the Arkansas divorce decree of October 10, 1963. It would clearly appear that if not attacked on jurisdictional grounds the Arkansas decree could be enforced in this State.

Notwithstanding the above situation the appellee, Virginia Brady, contends that regardless of the Arkansas divorce the West Virginia maintenance and support decree is not superseded or annulled by the Arkansas divorce decree and should be enforced by the West Virginia Court. In support of this contention she relies on the case of Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, 1 A.L.R.2d 1412. This case advanced the so-called 'divisible theory' in divorce cases, i.e., that the divorce itself was a proceeding In rem which affected the status of the parties but that an alimony or maintenance or support decree was In personam and therefore required personal service to be effective outside a state. In the Estin case the wife obtained a maintenance and support decree in New York and the husband later obtained a divorce from the wife in Nevada and the divorce decree had no provisions for any support for the wife. Service was had by order of publication in Nevada and there was no personal appearance by the wife. The Supreme Court of the United States held that although the Nevada decree was entitled to full faith and credit as to the divorce it was ineffective as to the New York maintenance and support decree. This rule has been followed in many subsequent cases. Kreiger v. Kreiger, 334 U.S. 555, 68 S.Ct. 1221, 92 L.Ed. 1572; Armstrong v. Armstrong, 350 U.S. 568, 76 S.Ct. 629, 100 L.Ed. 705, rehearing denied 351 U.S. 943, 76 S.Ct. 832, 100 L.Ed. 1469; Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456.

It appears from the authorities that this rule is applicable only where the laws of the state allow such recovery of support money by the wife after the husband had obtained a divorce. See 24 Am.Jur.2nd, Divorce and Separation, § 993; Esenwein v. Commonwealth of Pennsylvania, 325 U.S. 279, 65 S.Ct. 1118, 89 L.Ed. 1608; Estin v. Estin, supra; Lewis v. Lewis, 49 Cal.2d 389, 317 P.2d 987; Morris, Divisible Divorce, 64...