Lockman v. Lockman, 172.

• Citation: 220 N.C. 95,16 S.E.2d 670
• Decision Date: 08 October 1941
• Docket Number: No. 172.,172.
• Parties: LOCKMAN. v. LOCKMAN.
• Court: North Carolina Supreme Court

16 S.E.2d 670
220 N.C. 95

LOCKMAN.
v.
LOCKMAN.

No. 172.

Supreme Court of North Carolina.

Oct. 8, 1941.

[16 S.E.2d 671]

Appeal from Superior Court, Henderson County; Allen H. Gwyn, Judge.

Action on foreign judgment of alimony by Florence Jewel Lockman against William S. Lockman, Jr. From the judgment, the defendant appeals.

Affirmed.

Plaintiff's action was based on a judgment rendered in the State of Florida awarding her alimony. In her complaint she alleges that she is a resident of Florida and the defendant a resident of Henderson County, North Carolina; that in 1934 in a court of competent jurisdiction, in Palm Beach County, in the State of Florida, the plaintiff and defendant were parties to an action wherein final judgment or decree was rendered in favor of plaintiff and against the defendant, a copy of the judgment being attached; that the court was a court of record and had full jurisdiction of the matters referred to in the judgment; that the judgment was based on personal service on the defendant who filed answer in the cause; that the judgment is still in full force and effect in the State of Florida; "that there is now due and owing the plaintiff by the defendant under the requirements of said judgment the sum of $810 in alimony as of 1 October, 1940."

In the prayer for relief it was asked that "said judgment or decree be made the judgment or decree of the Superior Court of Henderson County, North Carolina, as fully and to the same extent as if said judgment was originally rendered by the courts of North Carolina."

It appears from the judgment that a divorce a vinculo was decreed, and that in accordance with the laws of the State of Florida alimony in the sum of $30 per week was adjudged to be paid by defendant to the plaintiff as long as she remained unmarried, together with $150 attorneys' fees. The custody of the children was awarded plaintiff. The judgment also contained this item: "Provisions as to alimony and as to support and custody of the children shall be subject to further order of the court."

Defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action, in that (1) it appeared to be an action for the adoption in this state of a judgment rendered in the State of Florida; (2) and the Superior Court of Henderson County is without authority to make its own a judgment in the State of Florida; (3) in that it appears that the judgment is not a final judgment, and that the cause is still pending in Florida, and is subject to the further order of that court; (4) that this court is without jurisdiction to deprive the Florida court of the right to modify its decree as to alimony; (5) that the judgment is interlocutory and cannot be made the basis of an independent action in this court; (6) that it appears from the complaint that there is pending in the Circuit Court for Palm Beach County, Florida, another action between the same parties for the same cause of action; (7) that it appears by the terms of the judg-

[16 S.E.2d 672]

ment the plaintiff and defendant were absolutely divorced, and the granting of alimony in such case is contrary to the laws of North Carolina.

The demurrer was overruled, and defendant appealed.

C. D. Weeks, of Hendersonville, for appellant.

R. L. Whitmire, of Hendersonville, for appellee.

DEVIN, Justice.

It may be noted at the outset that it is admitted for the purposes of the demurrer that the Florida court, which rendered the judgment sued on, had jurisdiction of the parties as well as of the cause of action; that the defendant was personally served with process and answered; that the judgment was rendered in 1934 adjudging the amount of alimony payable by the defendant to the plaintiff in installments; that the judgment is still in full force and effect in Florida, and that the amount now sued for in this action represents the installments of alimony past due at the commencement of this action.

The demurrer challenges the sufficiency of the complaint upon several grounds. The first objection is that the apparent purpose of the action is to have a judgment or decree rendered in the State of Florida adopted as the judgment of the Superior Court of Henderson County to the same extent as if originally rendered in that court. Objection on this ground would be good except for the fact that it is pointed only to the plaintiff's prayer for relief, and, under our decisions, the prayer for relief is not a necessary part of the complaint, and may be regarded as immaterial. The measure of relief is to be determined by the facts alleged in the complaint, and the proofs thereunder. Knight v. Houghtalling, 85 N. C. 17; Alamance Lumber Co. v. Edwards, 217 N.C. 251, 255, 7 S.E.2d 497.

The principal objection is that the Florida judgment, upon which this action is based, is not a final judgment, for that it is recited in the judgment that the provisions as to alimony shall be subject to further order of the court. It is urged that the decree is interlocutory and should not be made the basis of an independent action in the courts of North Carolina. The point is made that for these reasons the judgment sued on does not come within the protection of the full faith and credit clause of the Constitution of the United States.

Article IV, section 1, of the Federal Constitution not only commands that "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State, " but it adds "Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." Congress exercised this power by providing that judgments "shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken." 28 U.S. C.A. § 687.

In Milwaukee County v. M. E. White Co., 296 U.S. 268, 56 S.Ct. 229, 233, 80 L.Ed. 220, it was said: "A cause of action on a judgment is different from that upon which the judgment was entered. In a suit upon a money judgment for a civil cause of action, the validity of the claim upon which it was founded is not open to inquiry, whatever its genesis. Regardless of the nature of the right which gave rise to it, the judgment is an obligation to pay money in the nature of a debt upon a specialty. Recovery upon it can be resisted only on the grounds that the court which rendered it was without jurisdiction, * * * or that it has ceased to be obligatory because of payment or other discharge * * *, or that it is a cause of action for which the state of the forum has not provided a court * * *, unless it is compelled to do so by the privileges and immunities clause * * *; or possibly because procured by fraud."

Does the full faith and credit clause of the Constitution apply to actions to recover past due installments of alimony decreed by a court in a state other than that of the forum? Whatever uncertainty may have existed as to the law on this subject seems to have been definitely settled by the decision of the Supreme Court of the United States in Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L.R.A., N.S., 1068, 20 Ann.Cas. 1061. The resume of...