Clubb v. Clubb

• Decision Date: 15 March 1949
• Docket Number: No. 30785.,30785.
• Citation: 402 Ill. 390,84 N.E.2d 366
• Parties: CLUBB v. CLUBB.
• Court: Illinois Supreme Court

402 Ill. 390

84 N.E.2d 366

CLUBB

v.CLUBB.

No. 30785.

Supreme Court of Illinois.

Jan. 19, 1949.

Rehearing Denied March 15, 1949.

Appeal from First Division Appellate Court, First District on Appeal from Superior Court, Cook County; Frank M. Padden, Judge.

Suit by Nellie Clubb against Herbert William Clubb, based on a divorce decree of a foreign country, for unpaid alimony and for an accounting of all moneys due and owing for alimony, wherein plaintiff filed a petition after judgment for a rule upon defendant to show cause why he should not be held in contempt for failure to comply with provisions of the judgment. From a judgment of the Appellate Court reversing an order of the trial court dismissing the petition for want of equity, 334 Ill.App. 599, 80 N.E.2d 94, defendant appeals.

Appellate Court reversed; superior court affirmed.

Arthur Abraham, of Chicago, for appellant.

Fred A. Gariepy and Mary Berkemeier Quinn, both of Chicago (Owen Rall and John Spalding, both of Chicago, of counsel), for appellee.

SIMPSON, Justice.

May 18, 1927, Nellie Clubb, appellee, commenced an action for divorce against her husband, the appellant, Herbert William Clubb, in the High Court of Justice, Probate, Divorce and Admiralty Division (Divorce), sitting at the Royal Courts of Justice Strand in the County of Middlesex, London, England. February 4, 1929, she was granted a decree absolute which dissolved the bonds of matrimony between them. February 11, 1929, an order was entered requiring appellant to pay her alimony at the rate of 8 per week, after deduction of income taxes, from February 4, 1929, during their joint lives and until the further order of court. June 4, 1930, through garnishment proceedings appellee received, as cash surrender value of a policy of insurance upon appellant's life, 357 which was applied upon the said alimony. No further sum has been received or credited thereon.

While the divorce proceeding was pending and before appellant had been decreed to pay alimony, he was sent by his employer from London, England, to Chicago, and from there to Australia, from which country he returned to Chicago in December, 1929, and has since resided there. April 9, 1943, appellee filed suit in chancery in the superior court of Cook County against appellant, based on the English decree, in the first count of which she prayed for judgment for the unpaid alimony with interest thereon at 5 per cent and for attorney's fees and costs. By her second count she asked for an accounting of all moneys due and owing for alimony plus interest, attorney's fees and costs. Each count contained a prayer for general relief. In that suit she procured a decree entering judgment April 22, 1946, against appellant in the sum of $44,764 representing back alimony due her with interest thereon and also judgment in the sum of $41.10 as costs of suit, both of which appellant was ordered to pay. Execution was issued April 30, 1946, and returned May 13, 1946, no property found and no part satisfied. This judgment not being paid, appellee filed her petition in the superior court October 2, 1947, for a rule upon appellant to show cause why he should not be held in contempt of court for failure to comply with the provisions of the decree.

In appellant's answer to the petition he stated that his failure to pay was not wilful but was due solely to the circumstance that he at no time since the entry of the decree had any estate or moneys with which to pay it and that he has no money, property or estate whatever other than wearing apparel and personal effects. After hearing evidence the court dismissed the petition for want of equity. On appeal to the Appellate Court the order of the lower court was reversed and the cause remanded with directions to find defendant guilty of civil contempt of said court. We allowed an appeal from the Appellate Court and the case is before us for review, 334 Ill.App. 599, 80 N.E.2d 94.

It is contended by appellant that the English decree for the payment of money can be sued upon only as a debt and an ordinary judgment obtained as at law; that the law gives an adequate remedy and equity has no jurisdiction; that the superior court has no jurisdiction to enforce either the English decree or its decree based thereon except as ordinary judgments are enforced and that contempt is not proper under any rule of comity; that the full-faith-and-credit clause of section 1 of article IV of the United States constitution does not apply to a judgment or decree of a foreign country and that the evidence justified the dismissal of the petition to show cause, for want of equity.

On the other hand, appellee maintains that the decree in the superior court was for alimony and that the court had power under the rule of comity to enter its decree of April 22, 1946, and to hold appellant in contempt for failing to pay the judgment entered; that contempt for failure to pay is justified by section 42 of the Chancery Act (Ill.Rev.Stat.1947, chap. 22, par. 42); that the power to hold appellant in contempt is also justified by the inherent power vested in a court of chancery to compel obedience to its decree; and that the evidence on the petition to show cause abundantly shows appellant to have been guilty of wilful and wanton refusal to comply with the superior court's ruling.

Section 1 of article IV of the constitution of the United States provides: ‘Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.’ Most of the cases cited by both sides are based upon judicial proceedings of some other State of our Union and are controlled by the above constitutional provision. We must not, however, construe that provision as embracing public acts, records and judicial proceedings of other countries. Such broad construction could lead us into troublesome situations and would not be within the intent of the framers of the constitution. Aetna Life Ins. Co. v. Tremblay, 223 U.S. 185, 32 S.Ct. 309, 56 L.Ed. 398.

Boissevain v. Boissevain, 252 N.Y. 178, 169 N.E. 130, 131, seems to be the only reported case where a judgment or decree has been entered in a State court based upon a decree of a foreign country for alimony. In that case the wife obtained a divorce in Holland and alimony was awarded her. Thereafter she brought suit in New York upon the Dutch judgment and obtained a judgment for a sum representing the arrears of alimony. She asked judgment for the amount payable under the foreign decree from its date to the date of entry of judgment in the New York court, and also requested ‘equitable relief by way of a direction to defendant to make future payments in accordance with that judgment, as well as its enforcement in the same manner as one rendered by the courts of this state.’ The Court of Appeals held that the Dutch judgment was entitled to recognition here but said that ‘the prayer for relief is in one instance to vague, and in the other instance too broad. * * * The second relief demanded is too broad, because the complaint seeks enforcement of the foreign judgment by a form of equitable relief which is inappropriate to the facts as pleaded. This is a type of foreign judgment for which no provision is made for enforcement in the same manner as a judgment for the payment of alimony rendered by courts of this state. * * * The complaint, therefore, fails to state a cause of action for equitable relief.’

Sections 1171 and 1172 of the Civil Practice Act of New York controlled the remedies in cases of judgments obtained in other States for absolute divorce on the ground of adultery. The court in the Boissevain case held those remedies applicable only to such judgments as had been obtained in one of the States of the Union and not to include judgments which are truly foreign. This decision seems to be authority for recognition of the foreign judgment to the extent that a judgment for arrears in payment of alimony based thereon may be procured in a State court but that, in the absence of a specific statute for that purpose, the foreign judgment cannot be enforced as one for the payment of alimony rendered by courts of a State. Illinois has no statute providing for such enforcement. We do not believe the legislature had that matter in mind when section 42 of the Chancery Act was enacted.

In Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95, where the effect of a foreign judgment was considered, it was held that, in the absence of statute or treaty, the comity of this country does not require that judgments of a foreign country be recognized as conclusive in this country, where such foreign country does not give like effect to our own judgments. The opinion of Justice Gray in that case, quoting from Mr. Wheaton, 159 U.S. 113, 16 S.Ct. 139, 144, 40 L.Ed. 95, at page 109, says in part: ‘All the effect which foreign laws can have in the territory of a state depends absolutely on the express or tacit consent of that state. * * * The express consent of a state to the application of foreign laws within its territory is given by acts passed by its legislative authority, or by treaties concluded with other states. Its tacit consent is manifested by the decisions of its judicial and administrative authorities, as well as by the writings of its publicists.’

The same case cites an old English case, Roach v. Garvin, 1 Ves.Sr. 157, 159, decided by Lord Hardwicke. In that case the English court was requested to put in execution a chancery decree entered in France, where an infant ward of a court of chancery had been married in France by her guardian to his son before a French court, and the son petitioned for a decree for cohabitation with his wife and to have some money out of the bank. Lord Hardwicke in passing upon the case, after observing upon...