Keller v. Guernsey, 50260

• Decision Date: 05 April 1980
• Docket Number: No. 50260,50260
• Citation: 608 P.2d 896,227 Kan. 480
• Parties: Mary Jane Guernsey KELLER, Appellee, v. Floyd GUERNSEY, Appellant.
• Court: Kansas Supreme Court

Page 896

608 P.2d 896

227 Kan. 480

Mary Jane Guernsey KELLER, Appellee, v. Floyd GUERNSEY, Appellant.

No. 50260.

Supreme Court of Kansas.

April 5, 1980.

Syllabus by the Court

In an action by a non-resident against her former husband seeking a judgment for child support allegedly due under an order of the Family Court of New York and for an allowance of future support for the minor children of the parties, the record is examined and based upon the factual circumstances set forth in the opinion it is held : (1) the trial court did not err in refusing to grant a lump sum judgment upon an order of support from the State of New York which was not final in nature and was subject to modification or cancellation by the New York court; (2) the trial court did not err in determining it had jurisdiction to enter orders for future support of the minor children based upon the parents' common law duty of support; and (3) the judgment of the trial court is affirmed on both the appeal and cross-appeal.

W. Fredrick Zimmerman, of Thompson, Duckers & Verbanic, Kansas City, argued the cause and was on the brief for appellant.

J. R. Russell, Kansas City, argued the cause and was on the brief for appellee.

HOLMES, Justice:

This appeal and cross-appeal involves the attempts of a divorced mother to obtain child support for the minor children of the dissolved marriage. Defendant/appellant and cross-appellee, Floyd Guernsey (Floyd), appeals from an order of the Wyandotte district court determining and ordering the payment of current and future child support for his two minor children. The plaintiff/appellee and cross-appellant, Mary Jane Guernsey Keller (Mary Jane), is the former wife of Floyd and the mother of his two minor children. She cross-appeals from an order of the court denying her claim for a lump sum judgment for past due unpaid child support allegedly owed under an order of the Family Court of New York.

The facts are not in dispute. Floyd and Mary Jane were residents of and married in New York. Two children were born to Mary Jane during the marriage: Floyd Tracy, born September 20, 1965, and Patrick Arthur, born November 14, 1966. Floyd does not deny that he is the father of the two children or that they were born in wedlock. Mary Jane filed an action in the Family Court of Oswego County, New York, on December 12, 1967, for support under the New York Family Court Act. On February 27, 1968, an order was entered by the Family Court directing Floyd to pay $25.00 per week beginning March 1, 1968, for the support of Mary Jane and the two children. The money was ordered paid to the Commissioner of Oswego County Social Services as reimbursement for assistance being provided to Mary Jane. Floyd failed to comply with the order and on April 19, 1968, was sentenced to six months in the Oswego County jail. It appears he served the sentence. Upon his release, Floyd paid support sporadically until sometime in 1970 when he left New York and moved to Kansas. Following Floyd's departure, Mary Jane filed suit in the Supreme Court of New York for a divorce which was ultimately granted April 7, 1972. Service had been obtained by publication. Mary Jane was granted custody of the two minor children and the divorce decree orders "(t)hat all future questions of support of said children and alimony for the plaintiff shall be referred to the appropriate Family Court of the State of New York having jurisdiction over such matters." Nothing further seems to have happened until 1976.

On August 10, 1976, Mary Jane filed an action in the Family Court of Oswego County, New York, under the Uniform Reciprocal Enforcement of Support Act. Floyd was served in Wyandotte County on August 30, 1976; however, nothing further transpired and on January 21, 1977, the action was dismissed by the court in New York because Mary Jane was no longer residing in that jurisdiction, having moved to North Carolina. The case was then dismissed in Wyandotte County in March, 1977.

On June 13, 1977, this action was filed by Mary Jane seeking (1) a judgment for at least $10,000 (later alleged to be $11,050) for unpaid past due child support accrued under the New York Family Court order of February 27, 1968, and (2) an order for the future support of the two minor children. Personal service was obtained on Floyd. On August 2, 1977, the court ordered Floyd to pay the sum of $20.00 per week per child for child support which was raised by a subsequent order to $50.00 per week for each child effective November 4, 1977. The case was finally tried on February 24, 1978. On June 7, 1978, after receiving briefs from the parties, the court ruled (1) that under the laws of the State of New York no valid support judgment was in effect which could be enforced in Kansas; (2) that the support orders of the Wyandotte County court were valid and enforceable against Floyd and (3) future support beginning June 15, 1978, was fixed at the sum of $50.00 per week for the support of both children. Both parties have appealed.

We will first address the cross-appeal of Mary Jane. She has appealed from the denial of a judgment for past due support based upon the February, 1968, order of the Family Court of New York. She contends that the 1968 order created an ongoing obligation for Floyd to pay support and is entitled to be enforced in Kansas under the full faith and credit clause, Article IV, Sec. 1, of the United States Constitution.

Article IV, Sec. 1, provides:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

In the recent case of Hicks v. Hefner, 210 Kan. 79, 499 P.2d 1147 (1972), this court was faced with a similar set of circumstances. The plaintiff Barbra Hicks brought an action in Ellsworth district court to recover past due child support payments from her ex-husband, Andrew Hefner, based upon an order of the district court of Jackson County, Texas. At the time of the divorce both parties were residents of Texas. Subsequently Barbra moved to New Mexico and Andrew moved to Ellsworth County, Kansas. On the matter of granting full faith and credit under the Constitution, we stated:

"In the application of the foregoing (Article IV, Sec. 1) by state courts, the general rule is that a judgment rendered by a court of one state is entitled, in the courts of another state, to recognition, force or effect to the same extent and with as broad a scope as it has by law or usage in the courts of the state where the judgment was rendered. On the other hand, no greater effect need be given to any judgment of a court of one state than is given it in the state where rendered. (47 Am.Jur.2d, Judgments, § 1218, pp. 224-226; Restatement of the Law 2d, Conflict of Laws, 2d, Judgments, § 109, p. 322.) Kansas adheres to the foregoing. (Smolinsky v. Federal Reserve Life Ins. Co., 126 Kan. 506, 268 P. 830; Robinson v. Railway Co., 96 Kan. 137, 150 P. 636; and Bleakley v. Barclay, 75 Kan. 462, 89 P. 906.)" p. 82, 499 P.2d p. 1149.

The court reviewed the Texas statutes and decisions and found that Texas child support payments do not become final judgments at the time they become past due but may be altered, changed or suspended by the Texas court as the facts, circumstances, and justice may require. Our court then stated:

"(A) Texas decree, awarding periodical child support payments, cannot be considered a final judgment when suit is brought thereon in a sister state such as in the case confronting us here, and this holds true regardless whether the payments dealt with are past due or prospective. It must be kept in mind, of course, that our consideration herein is limited to an action brought on a Texas decree as distinguished from a common law action for support or a proceeding instituted under the provisions of the Uniform Reciprocal Enforcement of Support Act, K.S.A.1971 Supp. 23-451, et seq. It should be further noted that our holding here is based on Texas law which was presented to the trial court and to this court on appeal. Thus, any presumption that the Texas law was the same as that of Kansas is foreclosed.

"In the case at bar, the payments are not absolute or vested and to give the Texas decree the effect sought by Barbra would be to accord it force and effect far beyond that which it would receive in Texas. In our opinion, to permit the gaining of this end by the vehicle of full faith and credit is clearly beyond the contemplation of the constitutional mandate and the implementing direction of Congress." Hicks v. Hefner, 210 Kan. at 84 and 86, 499 P.2d at 1151 and 1152. (See also K.S.A. 60-1611.)

McKinney's Consolidated Laws of New York; Domestic Relations Law, Sec. 244, provides:

" § 244. Enforcement by execution of judgment or order in action for divorce, separation or annulment.

"Where the husband in an action for divorce, separation or annulment, or declaration of nullity of a void marriage, or a person other than the husband when an action for an annulment is maintained after the death of the husband, makes default in paying any sum of money as required by the judgment or order directing the payment thereof, the court in its discretion may make an order directing the entry of judgment for the amount of such arrears, or for such part thereof as justice requires having a regard to the circumstances of the respective parties, together with ten dollars costs and disbursements. The application for such order shall be upon such notice to the husband or other person as the court may direct. Such judgment may be enforced by execution or in any other manner provided by law for the collection of money judgments. . . . provided that when a judgment for such arrears or any part thereof shall have been entered pursuant to this section, such judgment shall thereafter not be...