Grossman v. Grossman
| Decision Date | 25 April 1963 |
| Docket Number | No. 18060,18060 |
| Court | South Carolina Supreme Court |
| Parties | Minnie GROSSMAN, Respondent, v. Jake GROSSMAN, also known as Jack Grossman, Appellant. |
Morris D. Rosen, Charleston, for appellant.
Shimel, Ackerman & Goldberg, Charleston, for respondent.
This is an action to recover accrued and unpaid alimony installments allegedly due under an Ohio divorce decree. The Court of Common Pleas for Charleston County, South Carolina, entered judgment for the plaintiff for the amount found to be due to her by the defendant under the Ohio judgment and the defendant has appealed.
The plaintiff and the defendant were married on August 20, 1918 and were granted a divorce by the Ohio Court of Common Pleas, Jefferson County, Ohio, on July 19, 1935, upon evidence that the defendant had been guilty of extreme cruelty and adultery. The decree of divorce dissolved the marriage, granted custody of their two minor children, then ages 15 and 12, to the plaintiff, and provided for the payment of alimony for the support and maintenance of the plaintiff and the minor children. The provisions of the decree with reference to alimony were based upon an agreement thereabout between the parties, the pertinent portions of which are as follows:
'It appearing that the parties hereto have agreed that said monthly payment of $130.00 by the plaintiff, Jake Grossman, to the defendant, Minnie Grossman, shall not at any time in the future be reduced by reason of any change in conditions or circumstances then surrounding the said plaintiff, Jake Grossman, and brought about by reason of his re-marriage, the Court likewise finds that said agreement is fair and equitable and does hereby approve of same.'
Shortly after entry of the aforesaid divorce decree, the defendant left the State of Ohio, went to Florida for a short time, and then moved to Charleston, South Carolina, in 1936, where he has since resided and accumulated property. The plaintiff continued to reside in Ohio until 1951, when she moved to Charleston where she continues to reside. The defendant remarried in 1944 and has one child by his second marriage.
The children of the plaintiff and defendant are now of age, one becoming 21 years of age on January 8, 1941, and the other on February 18, 1944.
This action was commenced on February 24, 1956 in the Court of Common Pleas for Charleston County, with the complaint alleging the entry of the aforesaid divorce decree in 1935, that it was a final judgment of Ohio, that the defendant defaulted in the payment of alimony under the terms thereof, and that there was due to the plaintiff the sum of $25,000.00 accrued alimony at the commencement of this action. The prayer for relief in the complaint was: (1) for the amount of accrued alimony unpaid and due under the Ohio divorce decree; (2) that the defendant be required to pay future alimony as the same shall be due under the aforesaid Ohio judgment and provide sufficient security to guarantee the payment thereof; (3) that the defendant be required to pay a reasonable fee to plaintiff's counsel for their services in this action; and (4) that the judgment or decree of this court entered upon the Ohio judgment be enforced by appropriate equitable remedies.
Pertinent to the issues to be decided in this appeal, the answer of the defendant denied that any amount was due by him to the plaintiff under the Ohio decree and denied that such decree was a final judgment of the Ohio courts. He affirmatively alleged that the Ohio decree was not a final judgment but a decree subject to retroactive modification under the laws of the State of Ohio and, therefore, not entitled to full faith and credit under the Federal Constitution; that it appeared that the amount of support granted in the Ohio decree was for the benefit of the plaintiff and the two minor children of the parties, and that no part of the sum allotted for the benefit of the children could be collected by the plaintiff after the children became 21 years of age; and that the plaintiff was guilty of laches by reason of long delay in asserting her claim, which has resulted in prejudice to the defendant.
In passing upon the issues, the lower court held that the Ohio decree was a final judgment of that State and enforceable under the full faith and credit clause in the courts of this State. It was found, from which there is no appeal, that all amounts due by the defendant under the divorce decree had been paid by him through 1948. Accordingly, the court ordered judgment against the defendant for the sum of $11,050.00, being the amount of the accrued monthly payments of $130.00 from January 1, 1949 to February 1, 1956, together with interest at the rate of 6% on the unpaid installments amounting to the sum of $7,300.80, and the further sum of $3,000.00 fees to plaintiff's attorneys for their services to the date of the lower court decree. The judgment of the lower court also reserved to the plaintiff the right to institute further actions to recover future installments that might become in arrears under the Ohio decree which was adjudged to be and made a final judgment of the courts of this State.
The basic issue in this appeal concerns the right of the plaintiff to enforce in the courts of this State the payment by the defendant of accrued and unpaid installments of alimony allegedly due under the decree of the State of Ohio. Since the lower court found that the defendant had paid all amounts due plaintiff under the Ohio decree through the year 1948, the liability of the defendant for past due alimony payments relates to the period from January 1, 1949 to February 24, 1956, the date of the commencement of this action. No question is presented as to the defendant's liability for future payments, if it is determined, that his liability for past due payments is enforceable in this State. Since, admittedly, the last of the children became 21 years of age in 1944, the action becomes in reality one to enforce the payment of the total amount of alimony installments provided in the Ohio decree for the above period for the wife and children even though the children had reached majority.
The Ohio decree, which incorporated the agreement of the parties thereabout, provided for a gross amount for the support of the wife and the minor children, without separately stating the amounts attributable to each. Since the children have all reached their majority, the defendant takes the position that his obligation, if any, is limited to the support of the plaintiff and that the Ohio decree is subject to retroactive modification in that State so as to relieve him of the proportion of the support obligation attributable to his children. He then contends that the Ohio decree is not entitled to enforcement under the full faith and credit clause of the Federal Constitution because it is a retroactively modifiable decree in that State, and that it is unenforceable here under the principle of comity because the courts of this State have no power to determine the proportion of the support obligation attributable to the plaintiff.
The plaintiff contends on the other hand that the Ohio decree, as to past due installments, is not subject to retroactive modification in Ohio and is a final judgment of that State entitled to enforcement in South Carolina under the full faith and credit clause of the Federal Constitution. The plaintiff concedes that in Ohio the liability of a parent to support children ceases at their majority, but contends that, regardless of such fact, the Ohio decree is a final judgment not subject to retroactive modification there, and must be enforced in the courts of this State under the full faith and credit clause of the Federal Constitution. It is conceded that no application has ever been made to the Ohio courts for modification of the judgment sought to be enforced here.
While ordinarily an alimony decree is not subject to modification as to past due installments in the State of Ohio, McPherson v. McPherson, 153 Ohio St. 82, 90 N.E. 675; Armstrong v. Armstrong, 117 Ohio. St. 558, 160 N.E. 34, 57 A.L.R. 1108, the right to so modify an alimony decree apparently exists in factual...
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