Morris v. Morris
Decision Date | 21 January 1960 |
Docket Number | No. 12728.,12728. |
Citation | 273 F.2d 678 |
Parties | Ann Meredith MORRIS, Plaintiff-Appellee, v. Philip MORRIS, Jr., Defendant-Appellant. |
Court | U.S. Court of Appeals — Seventh Circuit |
Samuel A. Rinella, Chicago, Ill., for appellant.
A. Bradley Eben, Chicago, Ill., for appellee.
Before HASTINGS, Chief Judge, SCHNACKENBERG, Circuit Judge, and MERCER, District Judge.
This diversity action was instituted by Ann Meredith Morris, a citizen of the state of New York, against Philip Morris, Jr., a citizen of the state of Illinois, to recover monies allegedly due under a New York Supreme Court decree of separation granted to plaintiff on May 4, 1954. The decree provided that defendant pay to plaintiff the sum of $100 per week as alimony and the carrying charges ($274 per month) on a cooperative apartment occupied by plaintiff. In the district court it was stipulated that, under the terms of the New York decree there had accrued, as of March 18, 1959, the sum of $33,000, unless that judgment had been superseded by a Nevada decree of divorce entered on September 14, 1954, granting defendant a divorce from the instant plaintiff in an ex parte proceeding in which the latter made no appearance.1 It was further stipulated that no court of competent jurisdiction in the state of New York has entered any order, judgment or decree determining as a matter of law that any specific sum or sums of money "is or are" due plaintiff from defendant under and by virtue of the New York decree.
The district court entered judgment for $36,758.12 and costs in favor of plaintiff. Upon a subsequent motion made by plaintiff, the judgment was amended and the New York decree was "established in this court and shall be enforceable by equitable remedies." The amending order also provided that "the plaintiff shall also have judgment for future installments of alimony and apartment maintenance as they become due from the defendant according to the provisions of the decree of May 4, 1954 established in this Court." Defendant now appeals from both the judgment and the amending order.
At all times relevant herein there was in effect in New York §§ 1170 and 1171-b of the pertinent New York act (N.Y. Civil Practice Act, §§ 1170, 1171-b) which provide:
Defendant contends that the New York decree awarding plaintiff monthly support payments was not final, but was subject to modification, even as to sums accrued and unpaid, the unpaid accruals not having been reduced to judgment. On the other hand, plaintiff argues that the New York decree itself possesses the requisites of finality necessary for its enforcement under the full faith and credit clause of the United States constitution.3
In Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82, it appears that petitioner secured a judgment of separation from her husband in a North Carolina court. The judgment provided for monthly payments of alimony. Several years later a judgment for the amount of alimony accrued and unpaid was entered in her favor and it was ordered that execution issue therefor. She then sued him in a Tennessee court to recover on the latter judgment. It was argued by the husband that the judgment sued upon was not final under North Carolina law, and the Supreme Court of Tennessee so held. In Barber, 323 U.S. at page 80, 65 S.Ct. at page 138, the Supreme Court pointed out that, in Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, it had held that a decree for future alimony is not final, if past due installments are retroactively subject to modification or recall by the court after their accrual. However, in Barber, the court emphasized that the present suit was not brought upon a decree of that nature, but for alimony reduced to a money judgment, upon which execution had been ordered to issue. It was held that the Tennessee court's decision was erroneous in holding the judgment sued on was not final under the law of North Carolina. See also Lynde v. Lynde, 181 U.S. 183, 187, 21 S.Ct. 555, 45 L.Ed. 810.
In Barber, the court concluded that it could not say that the "validity and finality of the judgment sued upon * * * is not entitled to full faith and credit."
However, by way of direct contrast, in the case at bar, plaintiff did not present to the district court a judgment of the New York court for accrued and unpaid...
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Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel
...were subject to modification by the state court, Lynde v. Lynde, 181 U.S. 183, 187, 21 S.Ct. 555, 45 L.Ed. 810 (1901); Morris v. Morris, 273 F.2d 678 (7 Cir. 1960), a view paralleled in the field of custody and visitation by our decision in Hernstadt v. Hernstadt, 373 F.2d 316 (2 Cir. 1967)......
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Crouch v. Crouch
...decrees still subject to state court modification, see Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810 (1901); Morris v. Morris, 273 F.2d 678 (7th Cir. 1960). The reasons for federal abstention in these cases are apparent: the strong state interest in domestic relations matters, th......
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Lloyd v. Loeffler
...outside the diversity jurisdiction if the decree remains subject to modification by the court that entered it, see Morris v. Morris, 273 F.2d 678, 681-82 (7th Cir.1960); Hernstadt v. Hernstadt, 373 F.2d 316 (2d Cir.1967); Sutter v. Pitts, 639 F.2d 842 (1st Cir.1981), though it is true that ......
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Olsen v. Olsen, Civil No. H 84-7.
...30 S.Ct. 682, 686, 54 L.Ed. 905 (1910); Lynde v. Lynde, 181 U.S. 183, 186-187, 21 S.Ct. 555, 556, 45 L.Ed. 810 (1901); Morris v. Morris, 273 F.2d 678 (7th Cir. 1960). For all these reasons the Court finds that it may not entertain petitioner's action under the Court's diversity jurisdiction......