Clester v. Heidt's Estate

• Decision Date: 31 May 1960
• Docket Number: No. 38777,38777
• Parties: Charles C. CLESTER, Executor of the Last Will & Testament of Jennie Heidt Clester, deceased, Plaintiff in Error, v. Estate of George Henry HEIDT, deceased, L. M. Gibson, Administrator, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 699

353 P.2d 699

1960 OK 139

Charles C. CLESTER, Executor of the Last Will & Testament of

Jennie Heidt Clester, deceased, Plaintiff in Error, v. Estate of George Henry HEIDT, deceased, L. M. Gibson, Administrator, Defendant in Error.

No. 38777.

Supreme Court of Oklahoma.

May 31, 1960.

Rehearing Denied July 12, 1960.

Syllabus by the Court.

1. A foreign divorce decree providing for periodical payments of child support is entitled to full faith and credit in this state as to matured, unpaid child support installments.

2. Where an action is brought in this state upon a judgment of a court of record of another state which is in full force in that state, the statute of limitations of this state and not that of the other state will control.

3. A cause of action accrues against a resident of this state upon a judgment rendered in another state on the date residence of the judgment debtor begins in this state, and the statute of limitations begins to run with the accrual of the cause of action.

Appeal from the District Court of Tulsa County; W. Lee Johnson, Judge.

Action by Charles C. Clester, Executor of the Last Will and Testament of Jennie Heidt Clester, deceased, against estate of George Henry Heidt, deceased, to recover matured unpaid installments of child support payments ordered under provisions of divorce decree rendered in state of Indiana. From judgment for defendant, plaintiff appeals. Affirmed.

H. F. Fulling, Tulsa, for plaintiff in error.

Randall G. West, Tulsa, for defendant in error.

JACKSON, Justice.

This is an action by Charles Clester, as Executor of the Estate of Jennie Heidt Clester, deceased, against the estate of George Henry Heidt, deceased, former husband of Jennie Heidt Clester, deceased, to recover delinquent child support ordered by terms of a decree divorcing the said Jennie Heidt Clester and George Henry Heidt entered in 1915 in the State of Indiana.

A jury was waived and the case was submitted to the trial court upon a written stipulation of facts. The essential facts are summarized as follows:

George Henry Heidt and Jennie Heidt, both deceased, were legally divorced on January 18, 1915, by the Circuit Court of Vanderburgh County, Indiana. They had two children at the time the divorce was granted, Francis Heidt, who was nine years of age of October 4, 1914, and George Heidt, who was five years of age on November 29, 1914. In the decree, defendant George Henry Heidt was ordered to pay the sum of $5 a week to Jennie Heidt for the maintenance and support of said children.

George Henry Heidt paid about $200 as and for child support under provisions of said decree. Less than a year after said decree was entered, he left the State of Indiana and remained continuously absent therefrom, and made no further child support payments. He had resided in Tulsa County, Oklahoma, continuously from 1932 until his death in 1956.

The youngest child, George Heidt, attained his majority November 29, 1930.

This action was instituted subsequent to the death of George Henry Heidt in 1956.

The trial court rendered judgment for defendant on the ground that plaintiff's alleged cause of action was barred by limitations under the law of Oklahoma. Plaintiff appeals, urging that the limitation statute of Indiana, rather than Oklahoma, governs, and that under Indiana law the limitation period was tolled due to the departure and continued absence of defendant's decedent from the State of Indiana.

The pertinent Indiana Statute provides, as follows:

'The time during which the defendant is a nonresident of the state or absent on public business shall not be computed in any of the periods of limitation. * * *.' (Sec. 2-606, Burns' Indiana Statute, page 126, Vol. 2).

In Hough v. Hough, 206 Okl. 179, 242 P.2d 162, we held that an action by a mother against a father to recover delinquent child support payments under provisions of a divorce decree, as to limitations, was governed by 12 O.S.1951 § 95, subdivision 6, which provides, as follows:

'An action for relief, not hereinbefore provided for, can only be brought within five years after the cause of action shall have accrued.'

Therein we held that the unpaid installments could be recovered for a five-year period preceding the filing of the action.

It will be noted, however, that in Hough v. Hough, the action was based upon a divorce decree rendered in Oklahoma, which was an action not specifically provided for in our limitation statutes. In the instant case, the action is based upon an Indiana divorce decree.

In Hastings v. Hastings, Okl., 274 P.2d 540, 541, we held, in paragraph two of the syllabus:

'A Nevada judgment for divorce and for continuing monthly payments (of alimony) to wife from husband, valid in Nevada, is here entitled to full faith and credit as a final judgment for the monthly sums which have accrued and are due and payable thereunder.'

In Peterson v. Paoli, Fla., 44 So.2d 639, 16 A.L.R.2d 1094, plaintiff brought action in Florida upon a judgment rendered in the State of New York ordering installment payments for the support and maintenance of illegitimate minor children of the parties. After noting that the power of the court to modify the judgment was the same as in divorce decrees providing for child support, the court held that, inasmuch as the power to modify did not extend to past-due, unpaid installments, the support order, as to such installments, was a final judgment, and entitled to full faith and credit in the ...