Green v. Green

• Decision Date: 04 April 1940
• Docket Number: 4 Div. 142.
• Citation: 239 Ala. 407,195 So. 549
• Parties: GREEN v. GREEN.
• Court: Alabama Supreme Court

195 So. 549

239 Ala. 407

GREEN v. GREEN.

4 Div. 142.

Supreme Court of Alabama

April 4, 1940

Appeal from Circuit Court, Houston County; D. C. Halstead, Judge.

Action by Perla McAllister Green, suing for the use and benefit of Benjamin F. Green, Jr., and Betty Green, minors, against Benjamin F. Green, to recover past-due installments under provisions for support of minor children in a divorce decree with attachment in aid of suit. From a judgment for plaintiff, defendant appeals.

Affirmed.

Tompkins & Ramsey, of Dothan, for appellant.

Speight & Tiller, of Dothan, and M. Sollie, of Ozark, for appellee.

GARDNER Justice.

The Circuit Court of the Eleventh Judicial Circuit of the State of Florida, having jurisdiction of the subject matter and of the parties, entered, on May 13, 1931, a final decree of divorce, forever dissolving the bonds of matrimony theretofore existing between Perla McAllister Green and Benjamin F. Green; and for the education and maintenance of the two minor children of the marriage, the decree provided as follows: "That the defendant and cross-complainant Benjamin F. Green be and he is hereby ordered and directed to pay unto the complainant and cross-defendant Perla McAllister Green, the sum of $10.00 per week for the education maintenance and support of the issue of said marriage to-wit: Benjamin F. Green, Jr. and Betty Green until the further order, orders, or decrees of this court."

Benjamin Green, the father, has paid only $70 on this decretal order for the support of the children, and Perla McAllister Green, the mother, for the use and benefit of these two minors, instituted this suit in the Circuit Court of Houston County, in this State, to recover these past due installments, as provided in said final divorce decree. The suit was begun by attachment of certain realty situated in Dothan, Alabama, as the property of said Benjamin F. Green. There was judgment for plaintiff in the sum of $4,907.70, there being no dispute as to the amount past due and unpaid, and the realty attached was ordered sold for its satisfaction. From this judgment defendant prosecutes this appeal.

Defendant interposed pleas to which demurrer was sustained, and the assignments of error relate to these rulings which need no specific treatment here.

There is in substance but one fundamental question presented, that is, whether or not the decretal order as to the installment payments for the education and support of the two minor children, as found in the decree of divorce, was such a final judgment or decree as entitled it to the protection of the full faith and credit clause of the Federal Constitution, Article 4, section 1.

Provisions in divorce decrees for the support of minor children are considered by the Florida court as analogous to those of alimony for the wife (Heckes v. Heckes, 129 Fla. 653, 176 So. 541), and, likewise, so treated by the Supreme Court of the United States. In Yarborough v. Yarborough, 290 U.S. 202, 54 S.Ct. 181, 185, 78 L.Ed. 269, 90 A.L.R. 924, the husband was held entitled to plead as a complete defense the finality of the Georgia court's decree as to support of his minor child, with which decree he had fully complied; the court saying: "He has fulfilled the duty which he owes her by the law of his domicile and the judgment of its court. Upon that judgment he is entitled to rely. It was settled by Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L.R.A.,N.S., 1068, 20 Ann.Cas. 1061, that the full faith and credit clause applies to an unalterable decree of alimony for a divorced wife. The clause applies, likewise, to an unalterable decree of alimony for a minor child."

The following text from 17 Am.Jur. 537 is fully sustained by the authorities:

"The question whether a provision in a divorce decree for the maintenance and support of a child is, under the full faith and credit provision of the Federal Constitution, entitled to recognition and enforcement in a suit other than the one in which the decree is rendered is dependent upon the further question as to whether such a provision of such a decree may be regarded as final. If final, it is protected by the full faith and credit clause of the Federal Constitution and is enforceable in another state. Where such provision of the decree is, either under the statute or by its very terms, subject to modification, in the discretion of the court, either as to past-due installments or as to installments to fall due in the future, it is obvious that the decree is not final and therefore is not entitled to full faith and credit in another state. Where, however, the order for such installments is transformed, in the state in which the original decree was rendered, into a final judgment for a definite sum payable presently, then their payment may be enforced in another state.

"Where, by the law of the state where rendered, the decree is not subject to modification at the discretion of the court as to installments which are already due, then the judgment as to such installments is final and must be given full faith and credit in another state. * * *

"As to installments not yet accrued, the opposite rule applies; that is, they are not entitled to the protection of the full faith and credit clause because in such case no money is yet due and as

...