Kahn v. Kahn

• Decision Date: 15 March 1954
• Citation: 268 P.2d 151,123 Cal.App.2d 819
• Court: California Court of Appeals Court of Appeals
• Parties: KAHN v. KAHN et ux. Civ. 20053.

Page 151

268 P.2d 151

123 Cal.App.2d 819

KAHN v. KAHN et ux.

Civ. 20053.

District Court of Appeal, Second District, Division 2, California.

March 15, 1954.

Stanton, Stanton, Welbourn & Moore, Sidney S. Kohn and Louis B. Stanton, Los Angeles, for appellant.

Bernard B. Cohen, Los Angeles, for respondent.

MOORE, Presiding Justice.

On February 27, 1953, Mrs. Kahn sued her former husband for $93,000 and interest on a judgment obtained by her on October 31, 1925, in Cuyahoga County, Ohio. ¹ From her pleading as finally settled, it appears that prior to the judgment both parties resided in Ohio; that they were husband and wife and had three children, Rita, Helen and Joyce; Mrs. Kahn instituted an action, caused personal service to be made on defendant, their marriage to be dissolved and custody of the three children to be awarded to her. The decree provided for alimony and support as follows: 'It is ordered that the plaintiff is hereby allowed as reasonable alimony for herself and the support of her three minor children, and the defendant is ordered to pay to the plaintiff the sum of Three Hundred ($300.00) per month, each and every month, until the further order of the court.'

When the instant action was called for trial, the court sustained respondent's objection to the introduction of any evidence on the ground that the third amended complaint does not state a cause of action. Judgments of dismissal were thereupon entered. From the arguments made, it is assumed that the appeal applies only to the judgment in favor of Leo J. Kahn.

Two questions are posed for solution, namely, (1) Is the action barred by the statutes of limitation? (2) Is the Ohio decree sufficiently certain to be enforceable?

Action is Barred.

That the Court of Common Pleas of Cuyahoga County, Ohio, had jurisdiction of causes relating to divorce and child support is beyond dispute. It could provide alimony to a wife and support money to her children. In the exercise of such powers, the Ohio court awarded $300 as 'alimony for herself and the support for her three minor children.' But, since all three children had attained their majorities more than ten years prior to the commencement of this action, how may any one of them prevail in an action on such judgment? Section 336 of the Code of Civil Procedure bars an action upon a decree of the court of any state if brought more than five years after its date. The language of the section, on the face of it, bars an action on a judgment commenced more than five years after its entry in the original court. But inasmuch as a child under age might enforce a judgment for the last five years preceding the filing of a complaint on the foreign judgment or for any portion of such five years, a question is raised as to the applicability of section 336. Because no installment payable under the Ohio judgment became payable within such last preceding five years, and because all had matured more than five years before the instant suit was filed, not one of the three children can successfully assert a right under the Ohio decree, even if the entire judgment had run in their favor only. Section 336, supra; Biewend v. Biewend, 17 Cal.2d 108, 115, 109 P.2d 701, 132 A.L.R. 1264; Castle v. Castle, 71 Cal.App.2d 323, 324, 162 P.2d 656. At the trial, appellant conceded that she was not entitled to recover any installment that had matured more than five years prior to the filing of her action. Having thus supported the position of the trial court at the trial, she is now estopped to assert the contrary. Cross v. Bouck, 175 Cal. 253, 257, 165 P. 702; Kalmus v. Kalmus, 103 Cal.App.2d 405, 426, 230 P.2d 57; 4 Cal.Jur.2d, sec. 558, p. 424.

Appellant blandly waves aside the question of the California statute of limitation and asserts her right under section 1 of Article IV of the federal constitution which requires full faith and credit to be given in each state to the Public Acts, Records, and judicial proceedings of every other state, as that section is implemented by 28 U.S.C., § 1738. She cites in support of her thesis Sistare v. Sistare, 218 U.S. 1, 16, 30 S.Ct. 682, 54 L.Ed. 905; Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82; Biewend v. Biewend, 17 Cal.2d 108, 109 P.2d 701, 132 A.L.R. 1264; Barns v. Barns, 9 Cal.App.2d 427, 50 P.2d 463. Full faith and credit is not the precise issue. The judgment had served its purpose everywhere and could have commanded full faith and credit until it encountered the statutes of limitation. It is of no value now to the children because it has fully served its express purposes. It was never intended to provide support for the children after they reached majority, even had they continued to reside in Ohio. Ohio Revised Code, §§ 3103.03, 3105.14, 3109.01. ²

In Sistare v. Sistare, supra, the New York decree directed the payment of weekly installments as alimony and child support. When plaintiff sued in Connecticut to recover the accrued installments, she lost in the Supreme Court of that state on the theory that because the New York court had power retrospectively to modify accrued installments, the New York judgment was not entitled to full faith and credit. But the Supreme Court of the United States held that the New York Court had no power to modify accrued installments and that the New York decree as to accrued installments was entitled to full faith and credit. However, the decision is not pertinent here because the Sistare children were still minors when their mother sued in Connecticut.

The Barber case, supra, is not pertinent because it involved alimony only. In Biewend v. Biewend, supra, it was held that as to accrued installments, not subject to modification by the Missouri Court, the judgment was held to be entitled to full faith and credit; but as to future installments, subject to modification, they were not entitled to full faith and credit but are enforceable under the doctrine of comity. The other cited cases, Barns v. Barns, 9 Cal.App.2d 427, 50 P.2d 463; Handschy v. Handschy, 32 Cal.App.2d 504, 505, 90 P.2d 123; Gough v. Gough, 101 Cal.App.2d 262, 225 P.2d 668; McDonald v. Butler, 68 Cal.App.2d 120, 156 P.2d 273; Armstrong v. Armstrong, 117 Ohio St. 558, 160 N.E. 34, 57 A.L.R. 1108, are likewise distinguishable on their facts.

Not only is the judgment for support of the children barred by the provisions of section 336 of the Code of Civil Procedure, but it is barred also by the laws of Ohio. After declaring the legal obligation of a parent to support his child, Ohio General Code, § 7997, only to, but not beyond the child's majority, the Supreme Court of Ohio proceeded to declare: "A proceeding for alimony does not invoke the equity powers of the court but is controlled by statute. The court is only authorized to exercise such power as the statute expressly gives * * *.' The Legislature having imposed no obligation upon the parent beyond the majority of the children, the court was without power to create such obligation, was without power to do other than provide for the maintenance, care, education, and custody of the children during minority, and was without power to make any order with reference to the children which was not for the purpose of maintenance, care, custody, and control during minority.' Thiessen v. Moore, 105 Ohio St. 401, 137 N.E. 906, 911. In that case the defendant had been ordered by the divorce decree to convey land to his spouse for life, the remainder to their four children. Instead, the husband bequeathed the land to one of his sons. In reversing the judgment which held the title to have been vested in the four children, the Ohio Supreme Court declared the law in the language above quoted and held that 'The effect, and undoubted purpose of the order, was to direct the course of the succession to the title to the real estate after the death of the parents, and not to provide maintenance for the children during minority; it was beyond the jurisdiction of the court in that respect, was absolutely void'. In Miller v. Miller, 154 Ohio St. 530, 97 N.E.2d 213, and in Beilstein v. Beilstein, Ohio App., 61 N.E.2d 620, and In re Beilstein, 145 Ohio St. 397, 62 N.E.2d 205, 160 A.L.R. 1430, the Supreme Court of Ohio with emphatic language determines that a parent, in a divorce action, cannot be required to support a child after it has attained its majority; 'there is no jurisdiction to make such an order. Section 7997, G.C. * * * limits the responsibility on the part of the father to support only of minor children.' Beilstein v. Beilstein, supra, 61 N.E.2d at page 622, 623. There 'is no legal liability on the part of a father to support and maintain an adult child.' In re Beilstein, supra, 62 N.E.2d at page 207.

From the foregoing it cannot be successfully disputed that orders and decrees of divorce courts in Ohio for child support are by implication, by operation of law and express statutory provision, limited to the child's minority and automatically expire with its attaining majority. See decisions of courts in other states: Rife v. Rife, 272 Ill.App. 404; Van Tinker v. Van Tinker, 38 Wash.2d 390, 229 P.2d 333, 334; Boehler v. Boehler, 125 Wis. 627, 104 N.W. 840, 841; Hansen v. Hansen, 93 Cal.App.2d 568, 570, 209 P.2d 626.

The Judgment as to Alimony.

Even though the judgment with respect to child support had expired more than ten years prior to the commencement of this action, appellant evidently conceives that it should operate in her favor for the alimony included. How can that be done? The courts of California are not expected to rewrite the judgments of the courts of Ohio. If the proposal is that we can reasonably interpret a definite share of the $300 monthly installments was intended for appellant in her own right, the answer is that nothing is found in the Ohio judgment to indicate the amount that was intended by the court as alimony. The judgment is, therefore, too uncertain to be enforceable and the amended...