Rumpf v. Rumpf, 14301

• Decision Date: 16 February 1951
• Docket Number: No. 14301,14301
• Citation: Rumpf v. Rumpf, 237 S.W.2d 669 (Tex. Ct. App. 1951)
• Parties: RUMPF v. RUMPF.
• Court: Texas Civil Court of Appeals

Page 669

237 S.W.2d 669

RUMPF v. RUMPF.

No. 14301.

Court of Civil Appeals of Texas, Dallas.

Feb. 16, 1951.

Rehearing Denied March 6, 1951.

Edward C. Fritz, Dallas, for appellant.

Palmer & Rochelle, Dallas, for appellee.

CRAMER, Justice.

This is an action filed in the court below by appellant seeking a money judgment based upon a Minnesota divorce decree and two supplemental decrees thereunder for a fixed money judgment against appellee. The background is as follows: On March 29, 1943, in the Seventh District Court of Stearns County, Minnesota, appellant was granted a divorce from appellee. Appellant was also granted custody of their two minor children (one of whom has now reached majority) and, material here, $150 per month 'as alimony, both temporary and permanent, and as support for the minor children * * *.' The children still reside with appellant in Minnesota. The first supplemental decree entered upon motion of appellant, after service of notice of the motion on appellee in Dallas County, Texas, is in full as follows: 'Pursuant to the judgment entered and filed herein, and pursuant to the order of the above named court, dated October 2, 1948, it is Hereby Ordered, Adjudged and Decreed, that the plaintiff be and hereby is granted judgment against the defendant in the sum of Two Thousand Seven Hundred ($2,700.00) Dollars, and it is Further Ordered, Adjudged and Decreed, that execution and all other lawful process of this court be issued to effect the payment of said judgment. Dated at St. Cloud, Minn., this the 4th day of October, 1948.'

Another supplemental decree in substantially the same wording and under the same circumstances was entered January 14, 1950 (after personal service of the motion in Dallas), for $2,100.

The original divorce and above supplemental decrees were based on Sections 518.22 to 518.24 inclusive of the Minnesota statutes, M.S.A., and read as follows:

'518.22 Property of husband; permanent alimony

'Upon a divorce for any cause except that of adultery committed by the wife, if the estate and property restored or awarded to her is insufficient for the suitable support of herself and such children of the marriage as shall be committed to her care and custody, or if there is no such estate and property, the court may further order and decree to her such part of the personal and real estate of the husband, not exceeding in value one-third thereof, as it deems just and reasonable, having regard to the ability of the husband, the character and situation of the parties and all other circumstances of the case. The court may also, in the cases provided for in this section, decree to the wife such alimony out of the estate, earnings, and income of the husband as it may deem just and reasonable, having regard to the ability of the husband, the character and situation of the parties, and other circumstances of the case, and may by its decree make the same a specific lien upon any specified parcels of his real estate, or authorize its enforcement by execution against his property, real and personal; but the aggregate award and allowance made to the wife from the estate of the husband under this section shall not in any case exceed in present value one-third of the personal estate, earnings, and income of the husband, and one-third in value of his real estate. (Emphasis ours.)

'518.23 Revision, as to alimony, after decree

'After an order or decree for alimony, or other allowance for the wife and children, or either of them, or for the appointment of trustees to receive and hold any property for the use of the wife or children, the court, from time to time, on petition of either of the parties, may revise and alter such order or decree respecting the amount of such alimony or allowance, and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any order respecting any of these matters which it might have made in the original action. (Emphasis ours.)

'518.24 Security; sequestration; contempt

'In all cases when alimony or other allowance is ordered or decreed to the wife or children, the court may require sufficient security to be given by the husband for the payment thereof, according to the terms of the order or decree; and, upon his neglect or refusal to give such security, or upon his failure to pay such alimony or allowance, the court may sequester his personal estate, and the rents and profits of his real estate, and appoint a receiver thereof, and cause such personal estate, and the rents and profits of such real estate, to be applied according to the terms of such order or decree. If the husband has an income from any source sufficient to enable him to pay such alimony or other allowance, and fails and refuses to pay the same, the court may order him to pay such alimony or allowance for the use of the wife or the children, or both. If any person or party shall disobey such order, he may be punished by the court as for contempt.'

On the trial below our District Court first rendered judgment for appellant for $2,700, but within proper time set aside such judgment and rendered final judgment that appellant take nothing, and it is from this take nothing judgment that this appeal has been duly perfected.

Appellant briefs two points of error, both based on alleged error of the trial court in not rendering judgment for her for the full amount of the two supplemental reduction decrees; first, on the full faith and credit clause of the Federal Constitution, art. 4, § 1, and, second, under principles of comity and public policy. Appellee counters that since the supplemental reduction decrees were not final judgments, they were not entitled to enforcement.

Under the Minnesota Statutes above quoted the award of alimony was subject to review and was not final; therefore it would not of itself sustain a proceeding in Texas under the full faith and credit clause of the Constitution. The material question is whether or not the supplemental decrees sued on were authorized by the Minnesota Statutes, and, also, not subject to review under such statutes by the Minnesota courts. In other words, in order to be binding on the courts of Texas under the full faith and credit provision of the Constitution, such supplemental decrees must create an absolute and vested right in appellant. Quinn v. Quinn, Tex.Civ.App., 216 S.W.2d 1001, writ refused, n. r. e., and authorities there cited; see also the note on such case in 28 Texas Law Review 263.

Where the statutes of another State are pleaded and proven, as here, the courts of this State will refer for construction to the reports and decisions of such other State. Ogg v. Ogg, Tex.Civ.App., 165 S.W. 912. In the Minnesota case of Kumlin v. Kumlin, 200 Minn. 26, 273 N.W. 253, 254, the Supreme Court of that State held: '* * * However, the court in its discretion had the right to consider all of the facts and circumstances and was justified in modifying the judgment in the respect it did. We can see no reason why the court does not possess the same power to relieve a default after it occurs as it possesses to modify the order prior to the default provided a satisfactory showing is made. In this case we approve the discretion exercised by the trial court. See Sivertsen v. Sivertsen, 198 Minn. 207, 269 N.W. 413.'

In the Sivertsen case, cited in above quotation, the Supreme Court of Minnesota held:

'Divorce jurisdiction is statutory; 'our district court has no power in the premises not delegated to it by statute.' Ostrander v. Ostrander, 190 Minn. 547, 549, 252 N.W. 449, 450. The section of our statute under which plaintiff proceeded is 2 Mason's Minn.St.1927, § 8603, * * *. (Now Article 518.23 of the Minnesota statute above quoted.)

'The cases cited under the quoted section have given full force and effect to the broad powers provided thereby. So there can be no doubt that the court was well within its jurisdictional authority in modifying the very onerous burdens assumed by plaintiff and imposed by the original judgment. * * *

'Under the quoted section, the court was authorized to 'make any order respecting any of the said matters which it might have made in original action.' If plaintiff's financial condition had been as precarious at the time of the original hearing as it is now, obviously the court would not nor could it have granted the money allowance therein provided. If conditions were reversed so that at the time of the original trial defendant was impecunious and later became prosperous and possessed of the fortune now lost, can there be any doubt that defendant would have been justified in seeking a modification so as to increase substantially the payment for her support and that of the children?' Sivertsen v. Sivertsen, 198 Minn. 207, 269 N.W. 413, 415.

We have been cited to no holdings by the Minnesota courts authorizing the supplemental or reduction decrees, and our independent search has failed to lead us to such a case. The same is true of express statutory authority.

Under such circumstances the case of Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635, and others based on local statutes and/or rules authorizing final supplemental decrees, are not in point and, therefore, not controlling here.

We cannot therefore say the supplemental decrees are not subject to review. It is our opinion that under the Minnesota statute which the Supreme Court of Minnesota holds is its sole source of divorce jurisdiction, such supplemental decrees are subject to review. Kumlin v. Kumlin, supra.

Appellant also asserts that we should enforce the decrees of the Minnesota court on the principle of comity. To this we cannot agree since it is not the statutory rule, or the public policy, of Texas to provide in a divorce decree for permanent alimony to a wife after divorce; nor for child support after they reach the age of 16 years. Our courts have uniformly...