Ryle v. Ryle

• Decision Date: 29 January 1974
• Docket Number: No. 1,No. 48821,48821,1
• Citation: 130 Ga.App. 680,204 S.E.2d 339
• Parties: William W. RYLE v. Maxine L. RYLE
• Court: Georgia Court of Appeals

Page 339

204 S.E.2d 339

130 Ga.App. 680

William W. RYLE v. Maxine L. RYLE.

No. 48821.

Court of Appeals of Georgia, Division No. 1.

Jan. 29, 1974.

Syllabus by the Court

1. A suit on a foreign judgment for alimony, being an action on a debt of record rather than for an allowance from the husband for support of the wife, does not come within the exclusive jurisdiction of the superior courts.

2. Evidence as to the law of a foreign state is inadmissible in the absence of a showing of competency of the witness.

3. A summary judgment is not to do rendered in a case where there exists a genuine issue of material fact as to the status and legal consequence of the law of a foreign state.

4. When an action is based upon a foreign judgment which is not final in the state where rendered, such judgment is not entitled to recognition under the full faith and credit doctrine.

Harland, Cashin, Chambers & Parker, Harry L. Cashin, Jr., Roy M. Sullivan, Atlanta, for appellant.

Shoob, McLain & Jessee, M. David Merritt, Atlanta, for appellee.

CLARK, Judge.

This appeal is by defendant, who is the former husband of plaintiff, from a summary judgment granted the former wife by the State Court of DeKalb County based upon an alimony decree rendered between the parties in another state.

Maxine Ryle filed suit against her former husband, W. W. Ryle, in the State Court of DeKalb County alleging he was indebted to her in the amount of $18,850.89 plus interest on a lump sum judgment for alimony obtained by plaintiff against defendant on June 20, 1972, in the Common Pleas Court of Montgomery County, Ohio. Thereafter, she amended her complaint designating the original petition as Count 1 and presented a new cause of action denominated as Count 2. Therein she averred her former husband was indebted to her in the amount of $25,684.29 on account of a decree and judgment of alimony rendered by the same Ohio court on May 30, 1971. A copy of that decree was attached containing this significant conclusion: 'all until further order of the court.' That language is absent from the later lump sum judgment dated June 20, 1972, as shown by the copy of the decree attached to the complaint as Exhibit A of Count 1.

Count 2 of the complaint became the subject of a motion for summary judgment by plaintiff which was supported by her affidavit asserting W. W. Ryle failed to pay any sum in response to the Ohio decree for alimony dated May 30, 1971, and that he was indebted to her as of May 9, 1973, for $25,684.29 thereunder.

Defendant's 'Motion in Opposition to Plaintiff's Motion for Summary Judgment' contended plaintiff was not entitled to summary adjudication because, under the laws of Ohio, a decree which is subject to further modification by the court is not a judgment upon which the instant action could be based and because that judgment was not entitled to recognition under the full faith and credit clause of the Federal Constitution. In support, W. W. Ryle attached his affidavit that he 'personally inspected certain volumes of the Federal Reporter Series and certain volumes of West's Northeastern Reports and that the Ohio law contained therein states that an alimony award is at all times subject to modification by the Ohio courts and is not such a final judgment as would be entitled to be granted full faith and credit by the Georgia Courts.'

The trial court granted plaintiff's motion for the amount alleged to be due under Count 2 of the complaint from which defendant has brought this appeal. It should be noted that we are not here concerned with Count 1 based on the lump sum judgment for $18,850.89 dated June 20, 1972.

Enumerated as error are that (1) The lower court was without jurisdiction to entertain plaintiff's action since it was in the nature of a suit for divorce and alimony over which only the superior courts of this state have jurisdiction; (2) the substantive law of the State of Ohio was the subject of dispute between the parties such that a material issue of fact was present and the grant of a summary judgment therefore improper; and (3) the Ohio alimony award on which Count 2 was based was not final under the laws of Ohio and therefore not entitled to full faith and credit in the courts of this state.

1. Although the superior courts of this state have exclusive jurisdiction of cases involving divorce and alimony (Code Ann. § 2-3901, Const. art. 6, § 4, par. 1) the case at bar constitutes an action for debt, not alimony. 'A suit on a foreign judgment for alimony is simply an action on a debt of record (Little Rock Cooperage Co. v. Hodge, 112 Ga. 521, 37 S.E. 743), and is not one based upon a cause of action for an allowance from the husband for the support of the wife as provided for in the Code, § 30-201 et seq. It is only actions of the latter character and proceedings which are but a continuation of such actions . . . that should be designated as alimony cases.' McLendon v. McLendon, 192 Ga. 70, 71, 14 S.E.2d 477; McLendon v. McLendon, 66 Ga.App. 156, 17 S.E.2d 252; Brown v. Brown, 24 Ga.App. 512, 101 S.E. 315. It was therefore proper for plaintiff to invoke the jurisdiction of the State Court of DeKalb County.

2. 'As to affidavits, CPA § 56(e) (Code Ann. § 81A-156(e)) specifically provides that they shall 'set forth such facts as would be admissible in the evidence.' The same rule applies to depositions, interrogatories, and other evidence submitted on motion for summary judgment under the principle that admissibility of evidence on motion for summary judgment is governed by the rules relating to form and admissibility of evidence generally, so that evidence inadmissible on a hearing of the case would be inadmissible on motion for summary judgment. (Cits.)' Matthews v. Wilson, 119 Ga.App. 708, 711, 168 S.E.2d 864, 866. The testimony of the defendant W. W. Ryle, an osteopath, as to the legal consequence of the case law of the State of Ohio, would be inadmissible upon the trial of this case, without a showing that he is competent to testify as to such matters. There being no such showing of competency, the affidavit is without probative value on the motion for summary judgment.

Objection was properly made to consideration of the affidavit in the court below. See Federal Insurance Co. v. Oakwood Steel Co., 126 Ga.App. 479, 480, 191 S.E.2d 298). However, defendant's affidavit is not material to the creation of a genuine issue of fact since plaintiff's affidavit fails to controvert defendant's contention, pleaded in opposition to the summary judgment motion, that under Ohio law the action must fail. Thus plaintiff has failed to pierce the pleadings of defendant on his issue ¹ and a genuine question of fact has materialized in spite of the inadequacy of W. W. Ryle's affidavit. A genuine issue of fact being present, the lower court erred in granting plaintiff's motion.

3. '(T)he laws of the United States and of the several States thereof, as published by authority . . . shall be judicially recognized without the introduction of proof.' Code Ann. § 38-112. Therefore, we deem it proper to judicially notice and scrutinize the law of Ohio to determine whether plaintiff may pursue her action in this state on the basis of the Ohio judgment. See Duncan Cleaners v. Shuman Co., Inc., 119 Ga.App. 128, 166 S.E.2d 387 wherein this court took judicial notice of the 1955 Session Laws of North Carolina published by authority. See, especially, Kelly v. Kelly, 115 Ga.App. 700, 155 S.E.2d 732 in which this court examined the statutes and case law of California to determine whether a mother may maintain an action in our state under a California divorce decree for child support payable to her.

In Meister v. Day, 20 Ohio App. 224, 151 N.E. 786 plaintiff brought suit upon a judgment 'of $5 per week until the further order of the court.' The Ohio Court of Appeals held that: 'By providing that the weekly payments should run until the further order of the court, the court making the order impliedly reserved the power in itself to modify the order. In order words, the court might at any time, in the exercise of a sound discretion, order the payments to cease and convert the order into a judgment for a gross sum of money. In that event the plaintiff could sue on the resulting judgment in any court of competent jurisdiction.' P. 226, 151 N.E. p. 787. But unless there was a lump sum judgment '. . . plaintiff had no right, as of course, to a money judgment for unpaid alimony on such an order whether in a foreign jurisdiction or in a court of like jurisdiction in another county of his state, or in the court in which the original order was made . . .' P. 227, 151 N.E. p. 787.

The Ohio Court of Appeals ruled similarly in Pace v. Pace, 41 Hoio App. 130, 136, 180 N.E. 81, 83, wherein it was said: '(I)t is the law of the state, in a suit for alimony alone, that a decree for allowance of alimony in instalments may thereafter be modified not only as to the future instalments of alimony, but that such a modification may have a retroactive effect, and that, therefore . . . a decree for alimony in instalments is not a judgment upon which execution may be issued, but is in fact but an allowance which may thereafter be reduced to a decree in gross which may then have the force of a judgment upon which execution may issue. . . .'

In Kinney v. Kinney, 90 U.S.App.D.C. 346, 196 F.2d 587 (1951) the Court of...