Johnson v. Johnson

• Decision Date: 03 April 1940
• Docket Number: 15055.
• Citation: 8 S.E.2d 351,194 S.C. 115
• Parties: JOHNSON v. JOHNSON.
• Court: South Carolina Supreme Court

8 S.E.2d 351

194 S.C. 115

JOHNSON v. JOHNSON.

No. 15055.

Supreme Court of South Carolina

April 3, 1940

S Henry Edmunds, of Charleston, for appellant.

Paul M. Macmillan, of Charleston, for respondent.

FISHBURNE Justice.

In a suit for divorce brought by the plaintiff, Dorothy N Johnson, against the defendant, Emmett Johnson, Jr., in the Circuit Court for the Fourth Judicial Circuit, Duval County in the State of Florida, in which proceeding both parties appeared, a final decree of divorce was entered on April 1 1939. This decree, among other things, ordered the defendant to pay to the plaintiff a monthly instalment of alimony in the sum of fifty dollars, for her benefit and for the support of her minor child by the defendant, such sum to be paid on the first day of each and every month, beginning with the month of April, 1939.

The present action was commenced by the plaintiff against the defendant in the Circuit Court for Charleston County, in which county the defendant now resides. After setting up the final equity decree for alimony rendered in the State of Florida, she alleged that the defendant failed to pay certain portions of two monthly instalments which became due and payable prior to the institution of this action. The plaintiff prays for judgment for the amount of accrued unpaid alimony, and for all future monthly instalments as they become due in accordance with the provisions of the foreign decree; for a reasonable counsel fee, and further that the decree of the Florida Court for alimony be established here as a foreign judgment, to be enforced by appropriate equitable remedies as is usual in such cases.

The defendant served notice of a motion for an order requiring plaintiff to state separately the cause of action on the judgment, and her cause of action for attorney's fees. Reserving his rights under this motion he served his answer, in which he alleges that he has been unable to pay the amount of alimony in arrears for the reason that he has not had the means to do so. He denies the right of plaintiff to counsel fees, and admits the remaining allegations of the complaint.

Following the filing of these papers, the plaintiff served notice of a motion for an order docketing the case on Calendar 2, and referring the cause to a Master in Equity. The matter was heard by the lower Court upon the two motions referred to, resulting in an order refusing the plaintiff's motion and granting that of the defendant. The plaintiff has appealed.

The first question presented is this: In an action brought on a final equity decree for alimony rendered in another state, should the Courts of this state by equitable remedies enforce a judgment based on such decree?

The question before us has never been passed upon by this Court. The decisions in other jurisdictions are not in harmony. We have undertaken to carefully review these decisions and determine what we think would be the better rule to announce as the law in our State. This being a case of novel impression, we are of course at liberty to adopt that rule which in our judgment best conforms to the principles of equity and which will tend to the furtherance of justice. Ezell v. Ritholz, 188 S.C. 39, 198 S.E. 419.

A number of Courts have adopted the view that alimony due under a decree of a foreign Court is merely a debt, collectible only by execution upon a judgment recovered locally upon the foreign decree, and, the remedy at law for its enforcement being complete and adequate, equity has no jurisdiction to undertake its enforcement by contempt or other equitable relief. This rule, in whole or in part, is in effect supported by cases from the states of Massachusetts, Michigan, New Jersey, New York, and the District of Columbia. Cases from these states, and cases holding to the contrary, are referred to and treated very fully in annotations appearing in 97 A.L.R. 1197, and 109 A.L.R. 652.

On the other hand there is considerable authority supporting the proposition that a decree for alimony represents more than a debt; that its basis is the obligation of a husband to support his wife and children, which is a matter of public concern, whether the cause of action arises in the state where the decree is rendered or in another state to which the parties have removed; that the urgency for its effective enforcement is equally as great in one state as in the other; and that, therefore, it should be enforced by the same remedies as are applicable to domestic decrees for alimony. In this view the Courts of one state will enforce a foreign decree for alimony, or, more accurately speaking, a local judgment based on a foreign decree for alimony, by equitable remedies, as by contempt proceedings against the defendant for not complying with the judgment of the Court, etc., as is customary in the enforcement of local decrees for alimony. 17 Am.Jur., Section 767 Page 582.

In Shibley v. Shibley, 181 Wash. 166, 42 P.2d 446, 447, 97 A.L.R. 1191, it was held that accrued instalments of alimony under a California decree of divorce might be enforced in Washington by a judgment enforceable as a decree in equity, namely, by contempt proceedings. The Court said that this rule would be adopted, not because of the dictates of the full faith and credit provision, but because, "as a matter of public concern and equitable power, the enforcement in [Washington] of such decrees for alimony and support money should not depend solely upon ordinary execution", but should be carried out by means of the same remedies as are applicable to like decrees rendered in local Courts. In so holding, the Court follows the rule adopted by the Oregon, Mississippi, California, Connecticut, and Minnesota Courts.

In Fanchier v. Gammill, 148 Miss. 723, 114 So. 813, 814, a suit was brought in equity to enforce a decree for alimony rendered in Nevada. A demurrer was sustained to the bill on the ground of lack of jurisdiction because the decree of the Nevada Court amounted to no more than a judgment at law. In reversing the judgment, the Supreme Court, upon reviewing the authorities on the subject, said: "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 ***; because to hold that a foreign judgment for alimony can be enforced in this state only by 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."

In Ostrander v. Ostrander, 190 Minn. 547, 252 N.W. 449 the facts were: ...