Kernan v. Kernan

• Decision Date: 01 March 1962
• Docket Number: No. 4430,4430
• Citation: 78 Nev. 93,369 P.2d 451
• Parties: Florence E. KERNAN, now Florence E. Wacker, Appellant, v. Francis M. KERNAN, Respondent.
• Court: Nevada Supreme Court

Page 451

369 P.2d 451

78 Nev. 93

Florence E. KERNAN, now Florence E. Wacker, Appellant, v. Francis M. KERNAN, Respondent.

No. 4430.

Supreme Court of Nevada.

March 1, 1962.

Emerson J. Wilson, Robert H. Moore, William E. Freedman, Reno, for appellant.

Ernest S. Brown, Reno, for respondent.

BADT, Chief Justice.

Florence E. Kernan, now Florence E. Wacker, appeals from a judgment in which Francis M. Kernan, her former husband, was permitted to set off against Mrs. Kernan's suit for accrued alimony under a New York decree sundry amounts paid to her by Dr. Kernan in various years preceding the entry of the New York judgment. Appellant contends that such action on the part of the trial court was error in not giving full faith and credit to the New York judgment; that it was also error because such present defense was available to him in the New York action referred to and also in prior actions between the same parties; that it was error to hold that payments made by her husband to her were payments that he was not obligated to make, by reason of her default in violating a provision permitting him to visit the minor children of the parties; that it was error for the court to allow a further setoff of $150 growing out of a long-standing note in such sum payable by the wife to the husband.

As we have concluded that a reversal must be had by reason of the court's failure to give full faith and credit to the New York decree, and because of the application of the rule of res judicata, the other assignments of error will require little more than casual mention.

The prior litigation between the parties was extensive and a chronology thereof will be of assistance in understanding the facts.

Suit No. 1. Action by husband in New York for specific performance of a separation agreement of August 17, 1938. This eventuated in a new agreement February 9, 1940 governing property rights and custody and interest of the three minor children of the parties.

Suit No. 2. Divorce action by husband in Florida wherein the wife obtained a divorce and a decree providing for approval of the February 9, 1940 agreement.

Suit No. 3. Wife's action in New York for defaulted payments under the agreement of February 9, 1940 up to December 15, 1940. The husband appeared and interposed several defenses. These were rejected and judgment entered March 14, 1941 in wife's favor for $877.25.

Suit No. 4. Wife's New York action to recover defaulted payments from December 15, 1940 to October 1, 1941. The husband appeared and defended. Judgment was entered in the wife's favor for $1,887.50.

Suit No. 5. Wife's New York action to recover defaulted payments from October 15, 1941 to November 15, 1942 in the sum of $2,700. Although the husband was personally served in New York City November 19, 1942, he failed to appear. On July 20, 1951 his default was entered and judgment taken against him in the sum of $4,123.24, being the total amount of payments in default as prayed for in the complaint, plus interest and costs.

Suit No. 6. This is the present action to enforce the judgment in suit No. 5. The present appeal is from the judgment in suit No. 6.

The court below filed a written opinion (followed by formal findings of fact in the precise words of the opinion), which we may condense as follows:

The City Court of New York, which rendered the judgment in suit No. 6, had full jurisdiction. Such judgment entered July 20, 1951 was for $2,700, plus interest and costs aggregating $4,123.24. The defendant defaulted in that action and presented no defense either as to the amount due or sums to be set off, nor did he attempt to interpose any equitable defenses; 'after the New York court judgment was entered, the defendant cannot go behind it to interpose any defenses he may have had in that action up to the time the judgment was entered,' that time being July 20, 1951; 'the New York judgment for $4,123.24 upon which this action was brought must be given full faith and credit by this court.' 'In this action, however, before the court, the defendant is free to interpose any defenses he may have against the collection of the judgment, such as payment or setoff.'

Having thus accorded full faith and credit to the New York judgment, the trial court then proceeded to consider sundry payments made by Dr. Kernan to his wife under the stipulation of February 9, 1940, referred to under suit No. 2. The court held that she had violated that stipulation by failing to pay certain insurance payments and by denying her husband rights of visitation, both of which items were provided for in the stipulation, with the further provision that in the event of her failure so to perform, he could suspend payment 15 days after his notice to her of her default and until such default had been cured, and that by reason of such circumstances no further sums were due from the husband to the wife after March 12, 1940. The court then found that although the validity of any such payments otherwise due up to November 17, 1942 (suit No. 5), and included in the New York judgment, could not be questioned 'because this was a defense Francis M. Kernan failed to present in that action, [a]ny such payment not legally due after 17 November 1942 but which Francis M. Kernan nevertheless made, may be credited as a setoff against the judgment.' The court then found that Kernan had paid his wife $4,223.67 after November 17, 1942...