Fortner v. Fortner, 14279

• Decision Date: 08 September 1981
• Docket Number: No. 14279,14279
• Citation: 282 S.E.2d 48,168 W.Va. 70
• Court: West Virginia Supreme Court
• Parties: Kathryn H. FORTNER v. Francis D. FORTNER, Jr.

Page 48

282 S.E.2d 48

168 W.Va. 70

Kathryn H. FORTNER v. Francis D. FORTNER, Jr.

No. 14279.

Supreme Court of Appeals of West Virginia.

Sept. 8, 1981.

Syllabus by the Court

1. "Under Section 1, Article IV of the Constitution of the United States, the judgment or decree of a court of record of another state of the Union will be given full faith and credit in the courts of this State, unless it be clearly shown by pleading and proof that the court of such other state was without jurisdiction to render the same, or that it was procured through fraud." Syl. pt. 1, Consumer Credit Co. of Waynesburg v. Bowers, 143 W.Va. 748, 104 S.E.2d 869 (1958), quoting, Syl. pt. 1, Perkins v. Hall, 123 W.Va. 707, 17 S.E.2d 795 (1941).

2. "If the court, which rendered the judgment, was a court of general jurisdiction, the presumption is it had jurisdiction of the particular case, and to render the judgment void, this presumption must be overcome by proof." Syl. pt. 3, Gilchrist v. O. & O. L. Co., 21 W.Va. 115 (1882).

3. "In an action on a judgment of another state the validity of the judgment is determined by the law of the jurisdiction in which the judgment was recovered." Syl. pt. 4, Aldrich v. Aldrich, 147 W.Va. 269, 127 S.E.2d 385 (1962), rev'd on other grounds, 378 U.S. 540, 84 S.Ct. 1687, 12 L.Ed.2d 1020 (1964).

John L. MacCorkle and John R. Fowler, Charleston, for appellant.

Charnock & White and John N. Charnock, Jr., Charleston, for appellee.

PER CURIAM:

The controversy in this appeal concerns whether the circuit court erred in failing to give full faith and credit to two Virginia judgments for child support arrearages. We reverse and remand, with directions, and award a new trial.

The parties to this action were residents of the City of Norfolk, Virginia, where on October 28, 1957, in the Circuit Court of Norfolk, the appellant, Kathryn H. Fortner, obtained a divorce from the appellee. The circuit court had personal jurisdiction over the parties, and by its decree the appellant was awarded custody of the children of the marriage, and the appellee was ordered to pay $40.00 per week child support. Thereafter, the appellee moved to West Virginia.

On June 13, 1968, the appellant reopened the proceedings and obtained a judgment of $4,140.00 for child support arrearages in the Circuit Court of the City of Norfolk. This judgment also raised the support payments to $50.00 per week. On motion of the appellant, the case was transferred to the Juvenile and Domestic Relations District Court of the City of Norfolk to enforce the support provisions of the 1968 decree. On October 13, 1976, the appellant obtained a judgment in that court for arrearages under the 1968 decree of $9,366.00.

On January 24, 1977, the appellant brought this action in the Circuit Court of Kanawha County to enforce the two judgments, attaching certified copies of the decrees as exhibits to the complaint. The appellee answered asserting both judgments were void. The appellant then moved for summary judgment. In opposition to the motion, the appellee filed an affidavit representing that he was not served with notice of either the 1968 or 1976 proceedings, and contending there were genuine issues of material fact to be tried. After a hearing summary judgment was denied.

Just prior to the commencement of trial, the appellant tendered to the court the return of service which was attached to the 1968 judgment order showing that the appellee had been personally served with notice of those proceedings. Based on the return of service and the fact that the 1968 decree expressly stated the appellee was given notice, the appellant argued that the 1968 judgment was entitled to full faith and credit. The trial court ruled the judgment was invalid, finding that the appellee was not given proper notice because the appellant failed to present a copy of the petition allegedly served on the appellee. The appellant took exception to the trial court's ruling, and the case went to trial resulting in a $2,140.00 verdict for the appellant.

The appellant then moved for a new trial contending the circuit court erred in refusing to give full faith and credit to the 1968 judgment and in refusing to allow the appellant to present evidence of a $50.00 per week child support obligation as provided for in that judgment. As factual grounds for the motion, appellant attached certified copies of a Notice and Petition from the records of the Circuit Court of the City of Norfolk. The Petition alleged that the appellee was in arrears on support payments by $4,140.00 and sought an increase in child support. The appellant also attached a certified copy of a return of service dated June 7, 1968, from a Kanawha County deputy sheriff swearing that he personally served the appellee with the Notice and Petition in Kanawha County, West Virginia. The trial court denied the motion for a new trial and this appeal followed.

We are of the opinion that the 1968 judgment is entitled to full faith and credit in this State under settled legal principles, and that the trial court erred in refusing to recognize it as such and enter judgment thereon. It is axiomatic that:

"Under Section 1, Article IV of the Constitution of the United States, the judgment or decree of a court of record of another state of the Union will be given full faith and credit in the courts of this State, unless it be clearly shown by pleading and proof that the court of such other state was without jurisdiction to render the same, or that it was procured through fraud." Syl. pt. 1, Consumer Credit Co. of Waynesburg v. Bowers, 143 W.Va. 748, 104 S.E.2d 869 (1958), quoting, Syl. pt. 1, Perkins v. Hall, 123 W.Va. 707, 17 S.E.2d 795 (1941).

Moreover:

"If the court, which rendered the judgment, was a court of general jurisdiction, the presumption is it had jurisdiction of the particular case, and to render the judgment void, this presumption must be overcome by proof." Syl. pt. 3, Gilchrist v. O. & O. L. Co., 21 W.Va. 115 (1882).

See also, Citizens National Bank v. Consolidated Glass Co., 83 W.Va. 1, 97 S.E. 689 (1918).

It is also thoroughly established law that the validity of a judgment of another state is determined by the law of that state, and if the judgment is valid there, it must be given full faith and credit and the same force and effect in this State. See, e. g., Syl. pt. 4, Aldrich v. Aldrich, 147 W.Va. 269, 127 S.E.2d 385 (1962), rev'd on other grounds, 378 U.S. 540, 84 S.Ct. 1687, 12 L.Ed.2d 1020 (1964).

The appellee presented...