Guercia v. Guercia

• Decision Date: 12 April 1951
• Docket Number: No. 2957,2957
• Citation: 241 S.W.2d 297,239 S.W.2d 169
• Parties: GUERCIA v. GUERCIA.
• Court: Texas Court of Appeals

Page 169

239 S.W.2d 169

GUERCIA v. GUERCIA.

No. 2957.

Court of Civil Appeals of Texas, Waco.

April 12, 1951.

Rehearing Denied May 10, 1951.

Writ of Error Refused July 25, 1951.

See 241 S.W.2d 297.

John McGlasson, Waco, for appellant.

David G. Copeland, Winthrop Seley, Waco, for appellee.

TIREY, Justice.

This is an appeal from an order of the district court dismissing plaintiff's application for relief for lack of jurisdiction. A statement is necessary.

Margaret Guercia, a feme sole and a resident of Trumbull County, Ohio, filed an application in the district court of McLennan County in which she styled hereself as movant and in which she alleged that she was a citizen of Trumbull County, Ohio, and asked that Samuel Guercia, formerly of Ohio but now a resident citizen of McLennan County, Texas, be notified to appear and show cause why he should not be held in contempt for failure to obey an order of the Common Pleas Court of Trumbull County, Ohio, made at the April, 1946, term of said court, and attached a certified copy of said order and marked it Exhibit 'A' and made it a part of her motion. She alleged substantially that Samuel Guercia, the respondent, is in arrears in making the payments provided for in said order; that respondent appeared and submitted himself to the jurisdiction of said court by consenting to the entry of said judgment, and that thereafter he came to the State of Texas and became a resident of McLennan County, Texas, and removed himself from the jurisdiction of said court, and that the said respondent, after coming to Texas, defaulted in the payment of the sums of money provided for by said Ohio Court, and that by reason thereof he is in contempt of said court for failure to obey the orders of payment provided for in said decree, and that movant has no way of asking the Ohio Court to hold the respondent in contempt except through a court in whose jurisdiction said respondent now resides and where this motion is now filed. The movant further petitioned the District Court of McLennan County to give full force, faith and credit to the Common Pleas Court of Trumbull County (a court of record of a sister state) and asked said court (as an act of comity) to require the respondent to appear and show cause why he should not be held in contempt of said order, and asked that an order be made holding respondent in contempt. The movant prayed for such relief. The motion complied substantially with Rule 308-A, Texas Rules of Civil Procedure.

The decree of the Ohio Court granted a divorce to the movant from the respondent and awarded to the movant the care, custody, education and control of their minor child. The decree further found that the movant and respondent entered into an agreement on the 30th of April, 1946, wherein they contracted that respondent would pay to the movant for the support and education of their child the sum of $50.00 per month, payable on the 30th day of each and every month until said child attains the age of eighteen years, and that the respondent had made such payments until the date of the decree, August 19, 1946. The decree ratified and approved the contract of the movant and respondent and directed the respondent to pay the sum of $50.00 per month on the 30th of each month thereafter for the support of said minor child until the further order of that court. The decree is properly certified to by the clerk of the Common Pleas Court. Movant has also attached an affidavit bearing date, 22nd of April, 1950, to her pleading and marked it Exhibit 'B', which sets out that at the time the affidavit was made respondent was delinquent in his payments in the sum of $801.60.

The respondent seasonably filed plea to the jurisdiction of the district court of McLennan County and as grounds therefor averred that said court is without jurisdiction to hear movant's motion because it is grounded on an original action based on a foreign judgment; that no citation has been issued nor served on the respondent, and that notice of said motion came to respondent only through a clerk's order to show cause why respondent should not be held in contempt of court; that certified copy of the judgment attached to the motion shows that such judgment is not final, and that there has been no adjudication of a specific amount against respondent on which he is delinquent; that no cause of action recognized by our district court is shown, and that our district court has no authority to enforce contempt orders of another court.

Appellant says: 'There is only one point to be decided upon this appeal and that is whether or not the courts of Texas will, through its equitable powers, enforce a support order made by a court of competent jurisdiction of a sister state * * *.'

This exact question has not been passed upon by our Texas courts so far as we have been able to find. It is true that our courts have held that a foreign decree for alimony (and/or support for a minor) can be sued on and given effect in Texas under the full faith and credit clause of the Federal Constitution, Article 4, § 1. Our Supreme Court in Criteser v. Gaffey, Tex.Com.App., 222 S.W. 193, followed the rule announced by the Supreme Court of the United States in the case of Sistare v. Sistare, 1910, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L.R.A., N.S., 1068. See also Caples v. Caples, 5 Cir., 47 F.2d 225 (from Western Dist. of Texas), certiorari denied 284 U.S. 630, 52 S.Ct. 13, 76 L.Ed. 537. See also Stout v. Stout, Tex.Civ.App., 214 S.W.2d 891 (writ ref.). See also collation of authorities in 15 Tex.Jur. p. 646, sec. 150, and Texas Digest, Divorce, k331. In each of the Texas cases cited, a suit had been filed to establish the debt evidenced by judgment of a court in a sister state. In none of the cases had the plaintiff presented the question of asking the court to give the relief provided for in Rule 308-A, T.R.C.P., nor Art. 2217, Vernon's Ann.Civ.Stats. So the question here presented is: Can the holder of a judgment of a court in a sister state which provides for support of a minor child (the payments being in default) come into a district court in Texas and invoke the provisions of Rule 308-A aforesaid (or its equitable powers) without first having sued the judgment debtor and establish such debt against him as provided for under our procedure? Appellant bases her right to such relief on the reasons and authorities cited in an article entitled 'Equitable Enforcement of Foreign Alimony and Support Orders,' published in the Texas Bar Journal in February, 1950. This comprehensive and excellent article says the questions at issue are: '(1) Is the remedy at law adequate to enforce foreign alimony and support orders? (2) Is extradition an effective remedy to enforce an alimony and support order? (3) Are the courts of one state required, under the 'full faith and credit clause,' to grant equitable enforcement to orders of other states for alimony and support? (4) Should sound public policy and reasons of comity lead the states to go beyond the bare requirements of the 'full faith and credit clause' in granting equitable enforcement to alimony decrees and support orders of other states?' The article then points out why questions (1) and (2) above quoted are inadequate. Suffice it to say that the argument there presented is that the remedy at law is inadequate because it is seldom used in support cases when the defendant is in his home state, and it is obvious that the alimony provided for the wife and the support orders for the minor children require immediate action, and that the wife and her minor children cannot wait for the remedies of execution, etc., to obtain money from the husband and father who is unwilling to obey such orders and in such instances would take the delays that are necessarily involved in levying writs of execution and garnishment and permit the maintenance and support of his wife and children to be upon the community, if he were not faced with contempt proceedings. It is clear that the effective and only speedy remedy for an unwilling father to abide by such orders fixed by the court is by punishment for contempt. Needless to say, where the father has defaulted and left the state and taken up his residence in a sister state, the delays incident to extradition in bringing the father back to abide by the support orders entered against him render more ineffective the purpose of the orders fixed for the payment of alimony and support for the minor children. The article further asserts: '* * * that both for reasons of public policy and comity the states should go beyond the constitutional requirements in granting equitable enforcement to support orders. And it is further submitted that this is the modern trend.' The article then says that Mississippi was the first state to follow the ruling in Barber v. Barber, 21 How. 582, 16 L.Ed. 226, and recognized the social need of enforcing foreign decrees and orders for support with equitable remedies, and cites the case of Fanchier v. Gammill, 1927, 148 Miss. 723, 114 So. 813. At page 737 of 148 Miss., at page 814 of 114 So. we find this statement: 'It is our view that, on account of the character of a judgment for alimony, which rests, to some extent, upon public policy, in requiring a husband to support his wife and children, due to the sacred human relationship, and that they may not become public charges and derelicts, the decree for alimony, with the extraordinary power of enforcement by attachment and contempt proceedings, should be established and enforced by our equity court, which has full and sole jurisdiction of all matters of divorce and alimony; because to hold that a foreign judgment for alimony can be enforced in this state only be execution, the same as judgments at law, would be to impair or to deprive a foreign judgment for alimony of its inherent power of enforcement by attachment and contempt proceedings. Thus, as we view it, to so hold would...