Osborne v. Osborne

• Court: Virginia Supreme Court
• Writing for the Court: Before SNEAD; COCHRAN
• Citation: Osborne v. Osborne, 215 Va. 205, 207 S.E.2d 875 (1974)
• Decision Date: 28 August 1974
• Parties: Horace Adrian OSBORNE v. Giuliana G. OSBORNE.

Page 875

207 S.E.2d 875

215 Va. 205

Horace Adrian OSBORNE v. Giuliana G. OSBORNE.

Supreme Court of Virginia.

Aug. 28, 1974.

Allen C. Goolsby, III, Richmond (Paul B. Ebert, Manassas, Robert F. Brooks, Hunton, Williams, Gay & Gibson, Richmond, on brief), for appellant.

Daniel G. Grove, Washington, D.C. (Philip W. Amram, Mark B. Sandground, Amram, Hahn & Sandground, Washington, D.C., on brief), for appellee.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

COCHRAN, Justice.

The question presented by this appeal is whether the trial court was precluded from entering certain orders concerning alimony, child support, counsel fees and court costs because of a decree entered in proceedings in Texas by which the same litigants, Horace Adrian Osborne and his wife, Giuliana G. Osborne, were divorced.

The Osbornes were married in 1962, and two children were born of the marriage. The family lived for some years in Manassas, Prince William County, until 1970, when they moved to El Paso, Texas. In July, 1971, the parties separated, and Mrs. Osborne returned with the children to Manassas.

In February, 1972, Osborne filed a petition against his wife for divorce, on unspecified grounds, in the Court of Domestic Relations of El Paso County, Texas. Mrs. Osborne was not served with process within the State of Texas but, during that summer, through Texas counsel, she applied for and was granted a protective order concerning visitation of the children with Osborne. Subsequently advised by Texas counsel that her appearance to obtain the protective order was a general appearance, she filed a general denial to Osborne's petition.

In August, 1972, Mrs. Osborne filed suit for an A vinculo divorce against her husband, alleging constructive desertion, in the Circuit Court of Prince William County, Virginia. Osborne, who was personally served with process in Virginia, filed a plea in abatement asserting that all matters in controversy should be adjudicated in the Texas court. On September 20, 1972, the trial court denied the plea in abatement and ordered that Mrs. Osborne should have temporary custody of the children and that Osborne should pay the sum of $360 per month for temporary child support. After hearing evidence, the trial court in Virginia entered, over objection, an order on October 4, 1972, directing Osborne to pay his wife $250 biweekly as child support and alimony Pendente lite, together with a preliminary fee for her counsel.

On November 10, 1972, Mrs. Osborne's Texas counsel, having been discharged by her, withdrew from the proceedings pending in Texas, and Mrs. Osborne did not appear in person or by counsel at the trial in the Texas court held on November 13, 1972. The Texas court entered final judgment on November 15, 1972, granting Osborne an absolute divorce. The decree provided that Mrs. Osborne should have custody of the children and that Osborne should pay $125 per month for support of each child until the child attains eighteen years of age. As Texas is a community property state, the court divided the community property between the parties except for the home in Manassas, over which the Texas court had no jurisdiction. Specifically, the court gave Osborne all personal property in his possession, a 1969 automobile, and money in his bank accounts, and gave Mrs. Osborne all personal property in her possession including furniture and furnishings in Virginia, a 1967 automobile, and money in her bank accounts. The Texas decree was silent as to alimony.

Osborne filed a second plea in abatement with the trial court on December 1, 1972, seeking dismissal of the Virginia cause on the ground that all matters in controversy had been settled by the November 15, 1972, final judgment of the Texas court from which no appeal had been taken. By order entered, over objection, on March 7, 1973, the trial court overruled Osborne's plea in abatement and recognized the Texas decree of divorce as a dissolution of the Osbornes' marriage, but asserted continuing jurisdiction over matters of child custody, child support, and alimony. The decree awarded Mrs. Osborne custody of the children and a judgment against Osborne in the sum of $1,000 for arrearages in Pendente lite payments previously ordered, and directed Osborne to pay $250 biweekly as alimony and child support, subject to the further order of the court, and an additional fee for Mrs. Osborne's counsel.

The trial court, after considering financial statements of the parties and hearing evidence Ore tenus, entered a final decree on June 20, 1973, awarding Mrs. Osborne $200 per month permanent alimony, $400 per month child support, judgment against Osborne in the sum of $575 for arrearages, and additional counsel fees.

Osborne has abandoned his assignments of error relating to orders of the trial court entered prior to the final judgment of the Texas court of November 15, 1972. He has also incorrectly set forth and rephrased in his opening brief the assignments of error upon which he relies. Nevertheless, the assignments of error adequately cover Osborne's principal contention that the trial court erred in failing to honor the final decree of the Texas court by thereafter ordering him to pay alimony and child support. See Rule 5:42, Rules of Court.

Under the United States Constitution ¹ and federal ² and Virginia statutes ³ Mrs. Osborne was barred from relitigating in Virginia matters properly adjudicated by the Texas court. The constitutional mandate, as implemented by Congress, requires every state to give a foreign judgment at least the Res judicata effect which the judgment would be accorded in the state which entered it. Durfee v. Duke, 375 U.S. 106, 109, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963). In Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82 (1944), the Supreme Court held that Tennessee was required to give effect to a North Carolina judgment, not subject to modification in North Carolina, for arrearages in alimony payments. See McKeel v. McKeel, 185 Va. 108, 112--113, 37 S.E.2d 746, 748--749 (1946). Subject to rare exceptions, the full faith and credit rule applies even though the sister state's judgment reflects policies hostile to those of the forum state. Estin v. Estin, 334 U.S. 541, 546, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948); Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 438, 64 S.Ct. 208, 88 L.Ed. 149 (1943); Williams v. State of North Carolina, 317 U.S. 287, 294--295, 63 S.Ct. 207, 87 L.Ed. 279 (1942).

In considering the applicability of the principle of full faith and credit to the Texas decree it is necessary to determine whether the division of property under the Texas statutes protects the same right that permanent alimony protects under Virginia law. If the same right is protected in each instance full faith and credit bars a litigant who, having vindicated his right in one state, seeks a second remedy, though different in kind or measure, in another state. Magnolia Petroleum Co. v. Hunt, Supra.

In Virginia, a wife has a right to support by her husband, a right which, if the wife is not at fault, survives a divorce A vinculo. Under Virginia law, the wife's right to support after divorce is protected by our provisions for permanent alimony. Code §§ 20--107 to 20--109. See Eaton v. Davis, 176 Va. 330, 338, 10 S.E.2d 893, 897 (1940).

The Texas decree was silent as to alimony because Texas law and public policy do not permit alimony for the wife after a final decree of divorce. See Brunell v. Brunell, 494 S.W.2d 621 (Tex.Civ.App., 1973); Francis v. Francis, 412 S.W.2d 29 (Tex.Sup., 1967); V.T.C.A. Family Code, §§ 3.59 and 3.63. There is no such thing in Texas as permanent alimony. Bond v. Bond, 41 Tex.Civ.App. 129, 90 S.W. 1128 (1905). However, although alimony cannot be decreed upon the dissolution of marriage, Texas has long maintained that ample provision is made for the support of the wife by the division of property. See Pape v. Pape, 13 Tex.Civ.App. 99, 35 S.W. 479 (1896).

The Texas statute dealing with the division of property upon dissolution of a marriage provides that the court shall divide the 'estate of the parties in a manner that the court shall deem just and right.' V.T.C.A. Family Code, § 3.63. This statute does not require an equal division. Roberson v. Roberson, 420 S.W.2d 495 (Tex.Civ.App., 1967, writ ref'd n.r.e.). In making the division, the court may consider, 'among other things, the age and physical condition of the parties, their relative need for future support, fault in breaking up the marriage, benefits the innocent spouse would have received from a continuation of the marriage, the size of the estate and the relative abilities of the parties.' Pickitt v. Pickitt, 401 S.W.2d 846, 848 (Tex.Civ.App., 1966). Thus, the court may award all personal property to either spouse and may subject the income, rents, or revenues from all real estate to the support of either or both. Hedtke v. Hedtke, 112 Tex. 404, 409, 248 S.W. 21, 22 (1923).

Virginia permits a personal judgment requiring permanent alimony payments out of the husband's future income; Texas prohibits that particular source of support, but provides others (E.g., the community property or the income derived from the husband's separate property). Unlike alimony, a wife's interest in community property is not forfeited even though her fault brings about a divorce. And a wife without fault divorced in a community property state may be left without adequate means of support even though her former husband has a good income. Our method vests discretionary power in courts to award alimony when justified and to modify awards of alimony to meet changed circumstances, while Texas decrees are necessarily limited to provisions from the community property and income from the husband's separate property. Virginia's alimony is uncertain in duration and ceases entirely upon the death of either husband or wife, Durrett v. Durrett, 204 Va. 59...