Henderson v. Henderson

• Decision Date: 26 September 1952
• Docket Number: No. 34183,No. 1,34183,1
• Citation: 86 Ga.App. 812,72 S.E.2d 731
• Parties: HENDERSON v. HENDERSON
• Court: Georgia Court of Appeals

Page 731

72 S.E.2d 731

86 Ga.App. 812

HENDERSON v. HENDERSON.

No. 34183.

Court of Appeals of Georgia, Division No. 1.

Sept. 26, 1952.

Syllabus by the Court.

1. The trial court erred in attaching the defendant for contempt for failure to pay alimony decreed by a foreign State court.

2. Such a judgment in contempt is a final judgment from which a direct bill of exceptions will lie and the motion to dismiss the writ of error is denied.

Julia Kate Henderson brought an action against Sam Henderson, Sr., in Spalding Superior Court to set up a decree of a court of the Eleventh Judicial Circuit of the State of Florida awarding the plaintiff permanent alimony, in arrears at the time in the sum of $540, for which sum she prayed judgment. She also prayed for an attachment for contempt. The court issued a rule to show cause why the prayers of the petition should not be granted. At a hearing thereon the plaintiff introduced in evidence a certified copy of the Florida decree and testified that there was past due on said judgment the sum of $540 which was admitted as being correct by the defendant. The defendant offered no testimony but insisted that the court had no authority to determine an action for contempt against the defendant in this matter. At the conclusion of the hearing the court entered the following order: 'The above and foregoing matter coming on for a hearing before me on November 24th, 1951, and respondent therein having been served and having failed to show any sufficient reason why he has not complied with the order of the court of the Eleventh Judicial Circuit of the State of Florida, which order was signed on the 20th day of September 1950, as set out in the petition, it is considered and adjudged that the said defendant is in contempt of this court in failing and refusing to comply with said order and the Sheriff is hereby ordered to arrest the body of the said defendant and commit him to the common jail of Spalding County, then and there to be kept until he complies with said order and until he purges himself of this contempt.' From this judgment the defendant excepts.

Leward Hightower, Griffin, for plaintiff in error.

Russell O. Clay, Barrett & Hayes, Atlanta, for defendant in error.

FELTON, Judge.

1. This case was transferred to this court by the Supreme Court. In transferring the case the Supreme Court rendered the following opinion: '1. 'An alimony decree of a sister State, providing for future monthly payments, is such a decree as is enforceable in this State, under the full faith and credit clause of the constitution of the United States, as to such payments as have become due and are unpaid at the time of a judgment thereon in this State. Roberts v. Roberts, 174 Ga. 645(1, 2), 163 S.E. 735; Cureton v. Cureton, 132 Ga. 745, 751, 65 S.E. 65; Heakes v. Heakes, 157 Ga. 863, 867, 122 S.E. 777; McLendon v. McLendon, 66 Ga.App. 156(1, 2), 159, 17 S.E.2d 252. But the fact that such a decree of another State was for alimony will not make the Georgia suit on such decree an alimony case, since it 'is simply an action on a debt of record.' McLendon v. McLendon, 192 Ga. 70, 71, 14 S.E.2d 477, 478, and cit.' Lawrence v. Lawrence, 196 Ga. 204(3), 26 S.E.2d 283, 286; Belcher v. Belcher, 204 Ga. 436, 49 S.E.2d 904. 2. Under the foregoing rules a citation for contempt based upon an alleged failure to comply with a judgment rendered by a court of another State is not an alimony case within the provisions of the Constitution, article 6, section 2, paragraph 4, Code Ann. § 2-3704, and jurisdiction of the writ of error is vested in the Court of Appeals.' Henderson v. Henderson, 209 Ga. 148, 71 S.E.2d 210, 211. As foreign alimony decrees occupy the same status as ordinary foreign money judgments so far as our courts are concerned, such decrees must be reduced to judgment in this state before they can be enforced in this state. McElmoyle v. Cohen, 13 Pet. 312, 38 U.S. 312(3), 10 L.Ed. 177. And when they are reduced to judgment in this state, they can only be...