Mckeel v. Mckeel

• Decision Date: 22 April 1946
• Docket Number: No. 3045.,3045.
• Citation: 37 S.E.2d 746,185 Va. 108
• Court: Virginia Supreme Court
• Parties: McKEEL. v. McKEEL.

37 S.E.2d 746

185 Va. 108

McKEEL.

v.McKEEL.

No. 3045.

Supreme Court of Appeals of Virginia.

April 22, 1946.

Error to Circuit Court, Norfolk County; A. B. Carney, Judge.

Suit in equity by Lucille M. McKeel against Calvin Lee McKeel to recover accrued and future installments of alimony and support money awarded plaintiff by a Florida circuit court decree granting her a divorce from defendant. Decree for plaintiff, and from an order committing defendant to jail for contempt of court in disobeying such decree, he brings error.

Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

W. L. Devany, Jr., of Norfolk, for plaintiff in error.

James G. Martin & Son, of Norfolk, for defendant in error.

EGGLESTON, Justice.

In 1943, Calvin Lee McKeel brought a suit for divorce against his wife, Lucille M. McKeel, in the Circuit Court of the Fourth Judicial Circuit in and for Duval county, in the State of Florida. The wife appeared and filed an answer and cross-bill praying that she be granted the divorce. After a hearing the wife was granted an absolute divorce and it was decreed that the husband should pay her the sum of $42 per month for alimony and support of their minor child. This provision for the payment of alimony and support money was in accordance with a stipulation which the husband and wife had executed pending the divorce proceedings and which was ratified and approved in the final decree of the Florida court.

In June, 1944, Mrs. McKeel filed a bill in chancery in the Circuit Court of Norfolk county, Virginia, against her husband, who had taken up his residence there subsequent to the termination of the divorce proceedings in Florida. After alleging the facts just related, she further alleged that her husband, in disregard of the terms of the decree of the Florida court, had failed to make any payments to her for alimony or for the support of the child. She prayed "that judgment be rendered" against her husband for both accrued and future installments of alimony and support money, in accordance with the provisions of the Florida decree.

Although the husband was personally served with process in the suit instituted in the Circuit Court of Norfolk county, he at first made no appearance and filed no answer to the bill. After the cause had been properly matured, a decree was entered by the Circuit Court of Norfolk county, adjudging that the plaintiff wife should recover of the defendant husband the sum of $609, representing the accrued and unpaid installments of alimony and support money then due under the terms of the Florida decree. The Circuit Court of Norfolk county also decreed that until its further order the defendant husband should pay to the wife, for alimony and support of their child, the future monthly installments of $42, decreed by the Florida court, in semimonthly payments of $21.

The husband failed to comply with the terms of the decree of the Circuit Court of Norfolk county, and was several times summoned before it to show cause why heshould not be fined for contempt. As a result of these threatened contempt proceeding's he made small payments from time to time, but did not fully comply with the terms of the decree.

Finally, the husband moved to dismiss the entire proceedings in the Circuit Court of Norfolk county, claiming that that court had no equitable jurisdiction of the subject-matter, and hence no jurisdiction to enforce its decree by holding him in contempt for disobeying it.

The Circuit Court of Norfolk county overruled this contention and entered an order confirming its equitable jurisdiction of the matter, holding that the delinquent husband was in contempt of that court for "having wilfully disobeyed" its decree, and committing him to jail. From this order the husband has appealed.

The contentions of the appellant husband may be summarized thus: The entire proceedings in the Circuit Court of Norfolk county, including the contempt preceeding against him, are void, because, he says, (1) the Florida decree sought to be enforced through the decree of the Virginia court is not a final decree enforceable in another State under the full faith and credit clause of the Federal Constitution; (2) the wife's sole remedy, if any, is by an action at law in the Circuit Court of Norfolk county to recover the accrued and delinquent installments of alimony and support money due under the terms of the Florida decree, and that hence the Circuit Court of Norfolk county has no jurisdiction to enforce the foreign decree in an equity proceeding, such as that before us.

While the questions presented are of first impression in this State, they have frequently been before other courts.

The contention of the appellant husband that the Florida decree is not final is based on the fact that it contains this reservation: "* * * the court hereby retains jurisdiction to make such other and further orders touching upon the care, custody and maintenance of the said minor child as to the court may seem meet and proper." From this it is argued that the Florida court may make changes in the installments of support money to become due, if not in those past due, and hence, it is said, the decree is not such a final decree as is enforceable in Virginia under the full faith and credit clause of the Federal Constitution (Art. IV, § 1).

In Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 686, 54 L.Ed. 905, 28 L.R.A., N.S., 1068, 20 Ann.Cas. 1061, the Supreme Court held that a decree for future alimony is enforceable under the full faith and credit clause of the Constitution as to past due installments, if the right to such installments is "absolute and vested, " even though the decree might be modified prospectively by future orders of the court. This holding was adhered to in the recent case of Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82, 157 A.L.R. 163, in which it was held that a Tennessee court had erred in holding that a North Carolina judgment for arrears of alimony was not entitled to enforcement.

What, then, is the status of installments of alimony and support money past due under a Florida decree? Are they "absolute and vested, " or are they subject to change? We find that the highest court of Florida has put the matter at rest and has held that under a reservation such as that in the decree before us, the courts of that State may change future installments of alimony, but not those which are accrued and past due. Gaffny v. Gaffny, 129 Fla. 172, 176 So. 68, 70; Kennard v. Kennard, 131 Fla. 473, 179 So. 660, 662. See also, Lockman v. Lockman, 220 N.C. 95, 16 S.E. 2d 670, 674, 675, reviewing the Florida authorities on the subject.

Since the Florida court has no power or authority to change the accrued and unpaid installments due under its decree, to that extent, at least, the Florida decree is final ¹and entitled to enforcement under the fullfaith and credit clause of the Federal Constitution. See Annotation, 157 A.L.R., p. 175 ff., citing numerous cases.

But even though the courts of Virginia may not be compelled to do so under the full faith and credit clause of the Federal Constitution, upon principles of comity they may establish as their own decree a foreign decree for future payments of alimony, with the same force and effect as if it had been entered in Virginia, provided, of course, the foreign decree violates no public policy of Virginia. See Biewend v. Biewend, 17 Cal.2d 108, 109 P.2d 701, 132 A.L.R. 1264, and the annotation following it, for a full discussion and development of the subject.

Since there is nothing in the terms of the Florida decree or in the background of the divorce suit which runs counter to the public policy of the State of Virginia, the Circuit Court of Norfolk county, upon principles of comity, had full power and authority to enter a decree based on the Florida decree requiring the payment of future installments of alimony and support money.

With respect to the equitable jurisdiction of the subject-matter, there are cases which hold that "alimony due under a decree of a foreign court is merely a debt, collectable 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, as by contempt for disobedience to the terms of its mandate." 17 Am.Jur., Divorce and Separation, § 767, p. 581. See also, Annotations, 97 A.L.R. 1197, 109 A. L.R. 652.

This rule prevails in whole or in part in the District of Columbia, Georgia, Massachusetts, Michigan, and New York. It likewise prevailed in New Jersey until recently changed by statute. Boyce v. Boyce, 19 N.J.Misc. 143, 18 A.2d 298, 302.

But, as is pointed out in 17 Am.Jur., Divorce and Separation, § 767, p. 582, "On the other hand, there is considerable authority, in terms or in effect, supporting the proposition that a decree for alimony represents more than a debt; that its basis is the obligation of the 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...