Holcomb v. Holcomb

• Decision Date: 19 December 1975
• Docket Number: No. 75-C-84-C.,75-C-84-C.
• Citation: 413 F. Supp. 402
• Parties: Caroline M. HOLCOMB, Plaintiff, v. Dr. J. E. HOLCOMB, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

413 F. Supp. 402

Caroline M. HOLCOMB, Plaintiff, v. Dr. J. E. HOLCOMB, Defendant.

No. 75-C-84-C.

United States District Court, N. D. Oklahoma.

December 19, 1975.

Jack I. Gaither, Tulsa, Okl., for plaintiff.

William S. Hall, Green, Feldman & Hall, Tulsa, Okl., for defendant.

MEMORANDUM OPINION

COOK, District Judge.

Plaintiff herein, Caroline M. Holcomb, and defendant herein, J. E. Holcomb, have each filed a Motion for Summary Judgment and submitted briefs in support thereof. A hearing on the respective motions was held on November 5, 1975, at which time oral arguments were presented.

The parties have stipulated to the following factual situation. On January 27, 1971, the District Court of El Paso County, Texas, 41st Judicial District, in a case styled "In the Matter of the Marriage of J. E. Holcomb and Caroline M. Holcomb, No. 70-1091" rendered a decree of divorce wherein it was ordered, adjudged, and decreed by the court that J. E. Holcomb pay to the clerk of that court the sum of Six Hundred Dollars ($600.00) per month as support for the two (2) minor children of the parties until further order of the court. The District Court of El Paso County, Texas, 41st Judicial District, had jurisdiction of the subject matter and of the persons of both parties to render said decree and judgment. There has been no appeal and no subsequent proceedings in Cause No. 70-1091 except those which are hereinafter set out. After October 1, 1970, and prior to March 16, 1971, Dr. J. E. Holcomb moved from the State of Texas and became a resident of Nowata County, Oklahoma, and continues such residency to the present time. Caroline M. Holcomb on March 16, 1971, filed a petition for support under the Uniform Reciprocal Enforcement of Support Act of the State of Texas styled "Caroline Polk Holcomb vs. John Edward Holcomb, Jr., no. 71-1213". Said proceedings were transmitted by the District Court of El Paso County, Texas 34th Judicial District, to the District Court of Nowata County, Oklahoma, and filed in that court under a case styled "Caroline Polk Holcomb vs. John Edward Holcomb, Jr., No. C-71-17". John Edward Holcomb, Jr., was served in person with summons and filed an answer in said proceedings in the District Court of Nowata County, Oklahoma, on April 22, 1971. Dr. J. E. Holcomb and John Edward Holcomb, Jr., are one and the same person. On July 16, 1971, the District Court of Nowata County, Oklahoma, made and entered its order adjudging and decreeing that the defendant was not in arrears in the payment of the child support payments ordered by him to be paid under and pursuant to the terms of the divorce decree entered in the District Court of El Paso County, Texas, 41st Judicial District on January 27, 1971; and further ordering, adjudging and decreeing that the support payments for the two (2) minor children shall be reduced from Six Hundred Dollars ($600.00) per month to One Hundred Dollars ($100.00) per month, effective May 1, 1971. The District Court of Nowata County, Oklahoma, had jurisdiction of plaintiff's petition for support under the provisions of the Uniform Reciprocal Enforcement of Support Act and of the persons of both parties to render an order. There has been no appeal and no subsequent proceedings in Cause No. C-71-17. Dr. J. E. Holcomb has paid the sum of Four Thousand Five Hundred Fifty Dollars ($4,550.00) (through March, 1975) for the support of his minor children since January 27, 1971. On December 10, 1974, Caroline M. Holcomb filed a motion for judgment and unpaid child support in said Cause No. 70-1091 in the District Court of El Paso County, Texas, 41st Judicial District. On December 10, 1972, the District Court of El Paso County, Texas, 41st Judicial District, made and entered an order for J. E. Holcomb to appear on January 3, 1975, at 10:30 a. m. and show cause why that court should not enter judgment against him as prayed for in said motion. A true and exact copy of said order to show cause was served upon Dr. J. E. Holcomb in person in Nowata County, Oklahoma, by the Sheriff of that county on December 15, 1974. Dr. J. E. Holcomb filed no response to said motion for judgment for unpaid child support; and he did not appear in said District Court of El Paso County, Texas, 41st Judicial District, on January 3, 1975, either in person or by attorney. The District Court of El Paso County, Texas, 41st Judicial District, on January 3, 1975, rendered judgment in favor of Caroline M. Holcomb and against J. E. Holcomb in the sum of Twenty-Five Thousand, Five Hundred Dollars ($25,500.00). There has been no appeal or other proceedings in said Cause No. 70-1091 subsequent to said judgment.

Defendant contends that the Texas Court was without jurisdiction over the person of the defendant in rendering the money judgment dated January 3, 1975, herein sued upon, and, therefore, such judgment is void. At oral argument, plaintiff alleged that the issue of personal jurisdiction cannot be collaterally attacked in this Court and cited City of Buffalo v. Plainfield Hotel Corp., 177 F.2d 425 (2nd Cir.1949) and United States v. Mulcahy, 169 F.2d 94 (2nd Cir.1948), in support thereof. These cases hold that a decision relating to jurisdiction either of the person or of subject matter is not subject to collateral attack where it was made in proceedings in which the jurisdictional questions were in issue and in which the parties were given full opportunity to litigate. However, in the case at bar, the issue of personal jurisdiction was not raised or litigated, the defendant not having appeared.

According to 6 J. Moore, Federal Practice, ¶ 55.09, at 55-202 (1974):

"If the defendant appears and contests the jurisdiction of the court over . . his person . . . and that issue is decided against him and he thereafter defaults, the default judgment is not subject to collateral attack or opening for lack of jurisdiction. Nor is it where the party appears but fails to contest jurisdiction. And, although he made no appearance, if the court had the requisite jurisdiction over him that is needed for the type of judgment—in personam, quasi in rem, or in rem—which it renders, the default judgment is not subject to collateral attack or opening for lack of jurisdiction." (emphasis added)

As stated in Higginson v. Schoeneman, 89 U.S.App.D.C. 126, 190 F.2d 32 (1951), "It is universally recognized that a final judgment of a court of competent jurisdiction, of the parties and the subject matter, is not subject to . . . a collateral attack." See also Bass v. Hoagland, 172 F.2d 205 (5th Cir.1949); 49 C.J.S. Judgments § 401 (1947).

Therefore, if the Court determines that the Texas court which entered the judgment sought to be enforced herein had the requisite jurisdiction over the defendant as well as subject matter jurisdiction, the determination by that court in regard to the amount due cannot now be collaterally attacked.

The Court does not take issue with defendant's contention that the reduction of alleged support payment arrearages to a money judgment is an in personam judgment and to be valid a court rendering such judgment must have in personam jurisdiction over the defendant.

The Court notes that prior to January 1, 1974, based upon the applicable Texas statute, Article 4639a, Vernon's Ann.Civ.St., civil contempt was the only remedy for the enforcement of child support orders. Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 (1957). Under this statute, the trial court was without power, on motion of a divorced wife to reduce child support arrearages to a separate judgment. Brito v. Brito, 346 S.W.2d 133 (Tex.Civ.App.1961). See also Forney v. Jorrie, 511 S.W.2d 379 (Tex.Civ. App.1974); Menner v. Ranford, 487 S.W.2d 698 (Tex.Sup.1972); Ex Parte Hatch, 410 S.W.2d 773 (Tex.Sup.1967).

However, the Legislature of Texas in adopting Title 2 of the Texas Family Code, to be effective January 1, 1974, provided an additional method of enforcement. Section 4 thereof provides:

"(a) This Act takes effect on January 1, 1974, and governs all proceedings, orders, judgments, and decrees in suits and actions brought after it takes effect, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court its application in an action pending when this Act takes effect would not be feasible or would work injustice. . . ."

Section 14.09 of the newly enacted Family Code of Texas provides alternative methods of enforcing child support orders and states in pertinent part:

"(a) Any order of the court may be enforced by contempt.

(b) On the motion of any party entitled to receive payments for the benefit of a child, the court may render judgment against a defaulting party for any amount unpaid and owing after 10 days' notice to the defaulting party of his failure or refusal to carry out the terms of the order. The judgment may be enforced by any means available for the enforcement of judgments for debts.

As stated, the parties stipulate that on December 10, 1974, the District Court of El Paso County, Texas, entered an order for J. E. Holcomb to appear on January 3, 1975, at 10:30 a. m. and show cause why that court should not enter judgment against him as prayed for. A true and exact copy of said order to show cause was served upon J. E. Holcomb in person in Nowata County, Oklahoma, by the Sheriff of that county on December 15, 1974. The notice requirement of Section 14.09 was therefore complied with.

Defendant argues, however, that Section 14.09 does not provide for acquisition of personal jurisdiction over an out-of-state defendant, and cannot be constitutionally construed to do so in keeping with the minimum contacts requirements of due process. Furthermore, defendant contends that the only remaining vehicle to secure in personam jurisdiction over a non-resident defendant would be pursuant to the Texas long-arm statutes which do not purport to cover domestic relations or marital controversies. Plaintiff,...