Edgar v. Edgar, 2062

• Citation: 126 So.2d 585
• Decision Date: 20 January 1961
• Docket Number: No. 2062,2062
• Parties: Richard Ross EDGAR, Appellant, v. Jean Humphries EDGAR, Appellee.
• Court: Court of Appeal of Florida (US)

Page 585

126 So.2d 585

Richard Ross EDGAR, Appellant, v. Jean Humphries EDGAR, Appellee.

No. 2062.

District Court of Appeal of Florida, Second District.

Jan. 20, 1961.

Rehearing Denied Feb. 15, 1961.

Harry E. Gaylord, Eustis, for appellant.

H. L. Pringle, Pringle & Davis, Leesburg, for appellee. for appellee.

ALLEN, Chief Judge.

The appellee, as plaintiff, obtained a divorce from appellant in the State of Maryland on February 26, 1948, and in addition to granting the divorce, the defendant-husband was ordered to pay $35 per week to the plaintiff as maintenance and support for the three minor children born of the marriage. The defendant made these weekly payments until June 1, 1948, but has not made any further payments since that time.

On october 15, 1958, the appellee filed an action in the lower court against the defendant-husband alleging the above matters and in addition that the Maryland decree is still in effect; that one of the children, David Raymond Edgar II, lived with the defendant from June, 1952, to June, 1953; that another child, Susan Jean Edgar, would become 21 years of age on May 25, 1959; that the third child, Jonathan Ross Edgar would become 21 years of age on August 17, 1965; that, therefore, the defendant should be required to pay all of the past due support money to plaintiff, who has supported the children except as above noted; and the plaintiff also requested the court to modify the support order for future support of the children who are still minors.

The answer of the defendant admitted the entry of the Maryland decree but alleged that under Maryland law the decree has at all times, since the entry thereof, been subject to be annulled, varied, modified, amended, and changed retroactively and, therefore, was not entitled to full faith and credit in this jurisdiction. In support of this contention, certain Maryland statutes and authorities were presented to the lower court. After testimony was taken, briefs and stipulations of the parties were field, the lower court then entered certain findings which provided in part:

'* * * The portion of this [Maryland] statute relied upon by the defendant as authority for his alleged defense reads as follows:

"* * * and [the court] may from time to time thereafter annul, vary or modify its decree or order in relating to such child or children.'

* * *

* * *

'It was stipulated and agreed that past due accrued installments for support and maintenance through 1958 amounted to the sum of $17,197.84; that since 1958 and through June 13th, 1960, the further additional sum of $1,225.00 accrued.

'The sole question for determination is as follows: Is the Maryland Decree providing for support and maintenance of children entitled to full faith and credit and enforceable by this court for the purpose of collecting accrued child support payments?

'The parties recognize the enforceability of the decree provided the decree cannot be retroactively, or ab initio altered or amended as to accrued child support installments and also recognize its unenforceability in the event the same could be retroactively or ab initio altered or amended as to accrued child support payments.

'The presumption is that the Maryland decree is absolute, final and irrevocable and the burden is upon the defendant to prove otherwise.

'A review of the Maryland case law cited by the parties fails [to] remove the presumption of the decrees' irrevocability. All of the cases cited involved accrued alimony. They establish, without any question, that Maryland divorce decrees can be altered, changed or modified retroactively or ab initio as to accrued alimony. They justify this holding by classifying alimony as a 'duty' imposed upon a husband. Actually, these cases indicate by way of 'dictum' that only accrued alimony payments can be altered or changed retroactively; that child support payments are a 'debt' and impose a specific legal liability upon the father. Certainly there is no similarity between the justification and reasons for alimony and the justification and reasons for child support. Their allowances are predicated on entirely different theories.

'It is the opinion of the Court that the word 'annul' appearing in the Maryland statute has no more retroactive or ab initio meaning than would the words 'vary' or 'modify'. It cannot be said that the word 'annul' has a technical meaning nor can it specifically denote a retroactive or ab initio effect.'

The court subsequently entered a final decree holding that the defendant is indebted to plaintiff in the amount of $16,941.81 for past due child support under the Maryland decree; that the defendant pay various sums to the plaintiff for child support from the time of the filing of the instant suit until the various children have reached the age of 21; and that defendant pay $3,500 attorneys' fees to plaintiff or her attorneys. Thereafter the defendant appealed and raises a combined question as to whether the Maryland decree was a final decree and, as such, entitled to full faith and credit. The appellee has cross-assigned as error the refusal of the lower court to award interest on the past due support award.

Section 1 of Article 4 of the Constitution of the United States provides that 'Full faith and credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other State.' Congress was empowered to provide through general laws the manner in which such acts, records and proceedings should be proved, and the effect thereof. Accordingly, Congress has prescribed the mode of authentication in the execution of this power, and that such records and decrees so authenticated shall have such full faith and credit in every court within the United States, both state and federal, as they have by law or usage in the state from which they are taken. Davis v. Davis, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26, 118 A.L.R. 1518. The object of the full faith and credit clause and the act of Congress which implements it is to insure that if a decree or judgment has a certain effect in the state in which it is rendered, it shall have the same effect in every other jurisdiction. In view of this objective, it is, therefore, clear that a state is not compelled by the full faith and credit clause to give a divorce decree of a sister state a greater effect than it has in the state granting the decree; but, of course, the full faith and credit clause does not preclude a court from extending to such a decree a greater effect than it has under the law of the sister state. See Gaylord v. Gaylord, Fla.1950, 45 So.2d 507; 17 A Am.Jur. Divorce and Separation, § 942.

In determining whether the full faith and credit clause entitles the wife to sue in Florida to enforce a claim for arrears of periodic alimony payable under a decree of a sister state depends upon whether the court which entered the decree has the power to cancel the arrears or to modify the decree...