Gray v. Loper

• Decision Date: 16 September 1982
• Docket Number: No. 64002,64002
• Citation: 295 S.E.2d 229,163 Ga.App. 552
• Parties: GRAY v. LOPER.
• Court: Georgia Court of Appeals

Page 229

295 S.E.2d 229

163 Ga.App. 552

GRAY v. LOPER.

No. 64002.

Court of Appeals of Georgia.

Sept. 16, 1982.

Lawrence C. Collins, Byron, for appellant.

Randall Sorenson, Macon, for appellee.

McMURRAY, Presiding Judge.

On August 1, 1980, in the Circuit Court of Mobile County, Alabama, a "Judgment of Divorce" was entered between John A. Loper, the plaintiff therein, and Adelene R. Loper, the defendant. The decree awarded certain jointly owned real property in Alabama to the plaintiff John A. Loper and also ordered "that the monies presently in the hands of the Defendant [Adelene R. Loper] in the amount of $19,759.56 which the Defendant was previously restrained and enjoined from disposing of by a previous order of this Court shall be equally divided between the parties, and that the Defendant shall within thirty days from this date pay to the Plaintiff the amount of $9,879.78, and in the event Defendant fails, refuses or neglects to do so within said thirty days, that her one-half share of the said monies shall be reduced by $2,000.00, and that the Plaintiff shall be awarded a judgment against the Defendant in the amount of $11,879.78." (Emphasis supplied).

John A. Loper, as plaintiff, has now brought a petition to domesticate this Alabama decree and for same to be made the judgment of the Peach County Superior Court as the defendant Adelene R. Gray (formerly Adelene R. Loper) now resides in Peach County, Georgia. In addition to the prayer for the issuance of summons and service and domestication of the foreign decree he prayed that the defendant be attached for contempt and ordered to comply with the judgment as ordered and for a rule nisi to issue requiring the defendant to be and appear and show cause why the plaintiff should not be granted the relief requested.

The defendant answered, admitting jurisdiction, the existence of the divorce decree and the substance of the copy attached, but denied the validity of same or that it was enforceable against her in that she was a bona fide resident of the State of Georgia and the Alabama court was "without jurisdiction to enter an order divesting defendant of property then located in Georgia, or to enter a judgment for alimony as against defendant who was then a Georgia resident." She also denied that the court should cite her for contempt with appropriate sanctions or that she be required to pay plaintiff's attorney fees or expenses of litigation or that the State of Alabama would enforce a similar judgment of the State of Georgia by action for contempt.

On October 14, 1981, the trial court issued an order (filed and recorded October 20, 1981) setting forth certain facts in the case that plaintiff and defendant were married in Georgia in 1970 and resided at all times after that date in Alabama. In April 1980 the defendant separated from her husband and moved to Georgia establishing domicile here. The plaintiff obtained service pursuant to Alabama's domestic "long arm" statute and obtained the divorce by default in Alabama. The trial court stated that the issue before the court was whether defendant had sufficient minimum contacts with Alabama and whether or not it was unfair to require her to defend in that state. Citing numerous decisions of federal and state jurisdictions the trial court further found that the State of Alabama had "expressed an interest in the subject of this litigation by articulating in its long arm statute that 'living in the marital relationship within this state, notwithstanding subsequent departure from this state ...' constitutes a minimum contact. ARCP 4.2." Whereupon the trial court affirmatively determined that it was proper for the Georgia court to afford full faith and credit to the Alabama judgment, and "the Alabama divorce and alimony decree should be domesticated and thus enforced by this Georgia court."

On October 26, 1981, another rule nisi was issued to the defendant requiring her to show cause before the trial court as to "why she should not be adjudged as for contempt and all other relief sought by plaintiff." The trial court then, on November 6, 1981, issued an order (filed and recorded November 16, 1981) styled "Order Absolute" that after the presentation of evidence and argument of counsel the court found the defendant owes the plaintiff $11,879.78 by virtue of the order of that court dated October 14, 1981, "domesticating the Alabama Divorce and Alimony Decree between the parties dated August 1, 1980," and as the defendant had not made any payments on said indebtedness defendant was found in contempt but might purge herself of the contempt by paying to the plaintiff on or before 60 days from the date of the order the sum of $11,879.78. Defendant appeals. Held :

1. This case was docketed first in the Supreme Court, but by order transferred to this court, citing Henderson v. Henderson, 209 Ga. 148, 71 S.E.2d 210, and Johnson v. Johnson, 223 Ga. 147, 154 S.E.2d 13. Both of the above cases (Henderson and Johnson ) were transferred to this court because they were no longer alimony cases within the constitutional provision fixing the jurisdiction of the court but actions "on a debt of record." In Henderson v. Henderson, 86 Ga.App. 812(1), 813, 72 S.E.2d 731, this court held that since the decree of another state was for alimony thereafter domesticated in this state, it was "simply an action on a debt of record," and the citation for contempt based upon an alleged failure to comply with the judgment rendered by the court of another state is not an alimony case within the provisions of the Georgia constitution, citing the language of Henderson v. Henderson, 209 Ga. 148, 71 S.E.2d 210, supra. In Johnson v. Johnson, 115 Ga.App. 749, 156 S.E.2d 186, this court affirmed the domestication of the judgment of a sister state duly authenticated and as conclusive on the defendant as to all questions that he could have been heard on in the court of the sister state when and before the judgment was rendered. However, in Parker v. Parker, 233 Ga. 434, 436, 211 S.E.2d 729, the Supreme Court, citing Henderson v. Henderson, 86 Ga.App. 812, 814, 72 S.E.2d 731, supra, and others, stated it would not follow these earlier cases in making a distinction between the enforcement of a final divorce and alimony decree originally rendered in Georgia and a similar decree rendered in another state after its domestication in Georgia "when the enforcement sought in Georgia is authorized under our law and under the laws of the state where the judgment was granted." The decree in Parker v. Parker, supra, was from the State of Texas, and it was therein stated that the "Texas courts would enforce this decree by contempt if it had been granted in Georgia." In White v. White, 233 Ga. 289, 290-291, 210 S.E.2d 817, the Supreme Court held "[t]he fact that the prior DeKalb County Superior Court judgment continued in effect the payments previously adjudicated by the New Jersey court and did not modify the same would not preclude the former husband from being held in contempt of court for failure to comply with the DeKalb County judgment," but in Division 4 held that issue was now moot.

2. It is apparent from the record here that the trial court heard evidence, and the notice of appeal recites that the clerk should omit nothing from the record of the proceedings in the trial court. The parties by brief have stipulated to certain facts to which they are in...