Cousineau v. Cousineau

• Decision Date: 22 December 1936
• Citation: 63 P.2d 897,155 Or. 184
• Parties: COUSINEAU v. COUSINEAU.
• Court: Oregon Supreme Court

63 P.2d 897

155 Or. 184

COUSINEAU v. COUSINEAU.

Supreme Court of Oregon

December 22, 1936

In Banc.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by Ena G. Cousineau against G. L. Cousineau. From the judgment, the defendant appeals.

Affirmed.

This is an appeal by G. L. Cousineau, defendant, former husband of the plaintiff, from a decree of the circuit court of Multnomah county, which established as an Oregon decree that part of a judgment (decree) of the superior court of the state of California for the county of Los Angeles, which ordered him to pay to the plaintiff monthly sums of money for her support and for the support, maintenance, and education of the minor child of the parties. The decree was entered after the circuit court had overruled the defendant's demurrer to the complaint and the defendant had declined to plead further. The demurrer was based upon contentions that the complaint did not state a cause of action nor disclose jurisdiction of the circuit court over the subject-matter of the suit.

W. O. Sims and Henry E. Collier, both of Portland (Sims & Sims and Collier, Collier & Bernard, all of Portland on the brief), for appellant.

Ralph B. Herzog, of Portland (Carey Martin, of Portland, on the brief), for respondent.

ROSSMAN Justice (after stating the facts as above).

Omitting mention of nonessentials, the complaint alleges that in 1925 the plaintiff instituted an action for divorce against the defendant in the superior court of the state of California for the county of Los Angeles; that the defendant appeared personally; that on August 17, 1925, "there was entered in said action an interlocutory judgment of divorce a substantially true copy of which is attached hereto ***; that said final judgment of divorce was never appealed from modified or reversed in any manner, and the same has become final ***; that the minor child of the plaintiff and the defendant referred to in the above proceedings, to-wit, Mary Cousineau, is now 17 years of age; that under the laws of the State of California said minor child will not attain her majority until she reaches the age of 21 years." Further the complaint alleges that the plaintiff is now a resident of the state of California; that the defendant is now a resident of our state; that the defendant paid to the plaintiff $100 per month to and including the month of April, 1927 but nothing since; that since April 1927, and up to the time of the filing of the complaint in the present action (July 1, 1935), there accumulated upon the said judgment the sum of $9,800, no part of which has been paid.

The complaint prays "that said final judgment of divorce be established as a foreign decree and that it be adjudged that there is now due and owing from defendant to plaintiff under the terms of said foreign decree the sum of $9,800; and the plaintiff prays for such other and further relief as to the court may seem just and equitable." The material parts of the final judgment, according to the copy which accompanies the complaint, are: "Now on motion of plaintiff, it is adjudged that plaintiff be and is granted a final judgment of divorce from defendant. *** It is further ordered and decreed that wherein said interlocutory decree makes any provision for alimony or the custody and support of children, said provision be and the same is hereby made binding on the parties. *** It is further ordered and adjudged that the custody of the minor child, Mary Cousineau be awarded the plaintiff; that the defendant pay the plaintiff for her support and maintenance, and the support, maintenance and education of the minor child, the sum of $100 a month, to be paid on or before the first day of each and every calendar month and continuing until such time as the plaintiff shall have re-married, after which time the defendant shall pay the sum of $50 a month for the support, maintenance and education of the minor child, Mary Cousineau, during her minority." The provision for maintenance and support in the interlocutory judgment was in language identical to the above.

As is indicated in the preceding statement, the demurrer charged that the complaint failed to state a cause of action and disclose jurisdiction over the subject-matter. The decree of the circuit granted judgment against the defendant for the sum of $9,800, "which sum the defendant shall forthwith pay to the plaintiff, and for the further sum of $100 per month from the first day of July, 1935, to the date of the entry of this decree, which further sum the defendant shall forthwith pay to the plaintiff; and the defendant is further ordered to pay to the plaintiff for her support and maintenance, and for the support, maintenance and education of the minor child of the plaintiff and the defendant, Mary Cousineau, the sum of $100 per month."

In support of his demurrer, the defendant argues that the complaint fails to show that the California judgment has become a final one, and then cites decisions which hold that the full faith and credit clause of the Federal Constitution (article 4, § 1) demands that only the final judgments of the courts of one state are enforceable in the courts of another state. His citations are: Levine v. Levine, 95 Or. 94, 187 P. 609, 613; Levine v. Levine, 121 Or. 44, 252 P. 972, 973; Rowe v. Rowe, 76 Or. 491, 149 P. 533, 534, and Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810. In the case first cited the action was based upon a Minnesota decree which awarded to the plaintiff the custody of the child of the parties, and provided that the defendant should pay to the plaintiff $12.50 on October 20, 1913, and a like payment on the 5th and 20th days of every month thereafter. The plaintiff sought judgment against the defendant for the sum of $1,300, alleging that that amount had accumulated in unpaid installments since the entry of the decree. The complaint pleaded the Minnesota law applicable to awards of support money which, according to our decision, reserved to the courts of that state "the power subsequently to modify the original decree even as to accrued installments." Therefore, our decision held that only the first installment, that is, the one payable October 20, 1913, had become final and was within the purview of the full faith and credit clause of the Federal Constitution. The second of the above-cited decisions brought the same parties and the same decree before this court again. In the second case it appeared that after the first decision had been announced, the plaintiff filed a petition in the Minnesota courts praying for an adjudication of the amount of the installments then past due and unpaid, pursuant to which the court determined that $1,891 was due and unpaid to the plaintiff under its former decree. To her complaint which alleged these facts, the defendant interposed a demurrer which was sustained. The decision of this court reversed the decree of the circuit court and pointed out: "The facts alleged in the complaint are sufficient, it sustained by proof, to entitle plaintiff to recover judgment for the amount adjudicated by the Minnesota court." In Rowe v. Rowe, supra, we held invalid a judgment in favor of the plaintiff's former wife, based upon a California decree which purported to grant to the defendant monthly sums for the support of herself and the minor child of the parties. The findings of the circuit court held that the California decree was not a final one. The decision of this court in sustaining that finding stated: "The decree of the California court as to the sums to be paid for the maintenance and support of the minor was not a final decree under the statutes of that state." The decision further pointed out that the California law reserved to the courts of that state the power "to vacate such order at any time."

Lynde v. Lynde, supra, should not be considered by itself, but with Barber v. Barber, 21 How. 582, 16 L.Ed. 226, and Sistare v. Sistare, 218, U.S. 1, 30 S.Ct. 682, 685, 54 L.Ed. 905, 28 L.R.A. (N.S.) 1068, 20 Ann.Cas. 1061. In the case last cited, the federal Supreme Court, in referring to the other two, said:

"When these two cases are considered together we think there is no inevitable and necessary conflict between them, and, in any event, if there be, that Lynde v. Lynde must be restricted or qualified so as to cause it not to overrule the decision in the Barber Case. *** 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 annul or modify the decree in respect to alimony had been made prior to the instalments becoming due."

Nothing contained in the above decisions indicates that the...