Criteser v. Gaffey

• Decision Date: 02 June 1920
• Docket Number: (No. 161-3152.)
• Parties: CRITESER et ux. v. GAFFEY.
• Court: Texas Supreme Court

222 S.W. 193

CRITESER et ux. v. GAFFEY.

(No. 161-3152.)

Commission of Appeals of Texas, Section A.

June 2, 1920.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by L. G. Criteser and wife against O. E. Gaffey. A judgment for plaintiffs was, on appeal by both parties, reformed and affirmed by the Court of Civil Appeals (195 S. W. 1166), and plaintiffs bring error. Judgment of Court of Civil Appeals affirmed.

S. P. Jones, of Marshall, and T. P. Harte, of Douglas, Ariz., for plaintiffs in error.

F. H. Prendergast, of Marshall, for defendant in error.

SPENCER, J.

L. G. Criteser and wife, Josephine Criteser, instituted this suit to recover of O. E. Gaffey upon a judgment for alimony which Josephine Criteser, the former wife of Gaffey, had obtained in the circuit court of Oregon, before her marriage to L. G. Criteser. The decree of the Oregon court allowed her $125 attorney's fee and the sum of $50 per month alimony, with interest on the amounts. The district court of Harrison county rendered judgment for alimony accruing during the six months intervening between the decree of divorce and the marriage of Josephine Gaffey to L. G. Criteser, and also for attorney's fees, with interest on both amounts. Upon appeal the Court of Civil Appeals reformed the judgment so as to permit a recovery of attorney's fees with interest, but denying recovery for any alimony, and, as reformed, affirmed the judgment. 195 S. W. 1168.

The only question for determination is: Is the judgment rendered by the circuit court of Oregon entitled to be given effect under the full faith and credit clause of the federal Constitution? The case turns, we think, upon the construction to be given the statutes of Oregon as construed by the courts of that state in connection with the rule announced by the Supreme Court of the United States in the case of Sistare v. Sistare, 218 U. S. 1, 30 Sup. Ct. 682, 54 L. Ed. 905, 28 L. R. A. (N. S.) 1068, 20 Ann. Cas. 1061.

The case of Sistare v. Sistare, 218 U. S. 1, 30 Sup. Ct. 682, 54 L. Ed. 905, 28 L. R. A. (N. S.) 1068, 20 Ann. Cas. 1061, lays down this general rule and exception:

"First, that, generally speaking, where a decree is rendered for alimony and is made payable in future installments, the right to such installments 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 installments, 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...