Sackler v. Sackler

• Decision Date: 23 June 1950
• Citation: 47 So.2d 292,18 A.L.R.2d 856
• Parties: SACKLER v. SACKLER.
• Court: Florida Supreme Court

Page 292

47 So.2d 292

18 A.L.R.2d 856

SACKLER v. SACKLER.

Supreme Court of Florida, Division A.

June 23, 1950.

Rehearing Denied July 17, 1950.

Arthur J. Kline and Albert M. Lehrman, Miami Beach, for appellant.

Fogle, Kirtley, Connelly & Fordham and Lewis H. Fogle, Jr., Miami, for appellee.

ROBERTS, Justice.

The plaintiff, appellant here, obtained a divorce from the defendant-appellee in the State of New York in 1946, in which proceedings the plaintiff was awarded the custody of the two minor children of the parties, together with the sum of $20 weekly for the support of herself and the children. The defendant failed to pay the sums required to be paid in the New York decree, and in May of 1948 the plaintiff applied to the New York court under the provisions of Section 1171-b of the Civil Practice Act of the State of New York, for a judgment for the arrearages. The court found that the plaintiff was entitled to the sum of $1,171.75 for past-due and unpaid installments of support money, with interest thereon from the 28th day of May, 1946, for which judgment was entered.

The defendant having taken up his residence in the State of Florida, the plaintiff filed her bill in the Circuit Court of Dade County, Florida, alleging the foregoing facts, among others, and praying that the defendant be required to pay her all sums of money due and owing to her under the New York decree and further praying that the decree for alimony entered by the New York court be established and enforced by the equity courts of this state.

The defendant answered, denying that he was financially able to pay the full amount of support money awarded by the New York decree, and alleging further that the provisions of the New York decree respecting support money may be modified by the New York court from time to time and that such decree is thus unenforceable in this state.

After hearing had on bill and answer, the Chancellor decreed that the plaintiff have a money judgment for the amount of arrearages reduced to judgment in New York, and denied all further relief. It is this decree which we review on this appeal.

The appellant contends, first, that the lower court erred in restricting her to a money judgment for the alimony arrearages entered by the New York Court under Section 1171-b and in denying her the benefit of other equitable remedies, including contempt proceedings, in the enforcement of the judgment. It should be noted, in passing, that there is no question here as to the enforceability, by ordinary legal process, of the judgment for arrearages, since such judgment is not subject to modification by the New York court and is thus entitled to full faith and credit in the courts of this state. 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; Collins v. Collins, 160 Fla. 732, 36 So.2d 417.

As to the authority of this court to apply equitable remedies in the enforcement of a final decree for alimony for the wife and support money for the children, this court in McDuffie v. McDuffie, 155 Fla. 63, 19 So.2d 511, settled this question by adopting the rule laid down in Fanchier v. Gammill, 148 Miss. 723, 114 So. 813, to the effect that an alimony decree of a sister state will be enforced by the same equitable remedies, including contempt proceedings, as are applicable to the enforcement of a local decree for alimony. In the McDuffie case, this court quoted with approval the statement in the Fanchier case that 'The theory on which the Supreme Court of Mississippi adopted this view was that a judgment for alimony rests largely on public policy in that the husband should be required to support his wife and children, that they not become derelicts and a charge on the public, that a judgment in equity is more efficacious than a judgment at law in that it may be enforced by attachment or contempt, that a court of equity has sole jurisdiction in matters of divorce and alimony and that to hold that a foreign judgment for alimony can be enforced only by execution at law would amount to depriving it of its inherent power of enforcement by attachment and contempt.' [155 Fla. 63, 19 So.2d 512.]

We hold, therefore, under the authority of McDuffie v. McDuffie, supra, that the lower court erred in denying to the plaintiff equitable remedies, including contempt proceedings, for the enforcement of the New York judgment for the alimony arrearages.

It is next contended by appellant that the lower court erred in refusing to establish and enforce the New York decree as to future installments of support money, as prayed for in her bill of complaint. Although there is a divergence of authority on this question among the courts in this country, there is considerable authority for appellant's contention. See Sorenson v. Spence, 65 S.D. 134, 272 N.W. 179; Cousineau v. Cousineau, 155 Or. 184, 63 P.2d 897, 109 A.L.R. 643; Biewend v. Biewend, 17 Cal.2d 108, 109 P.2d 701, 132 A.L.R. 1264; Rule v. Rule, 313 Ill.App. 108, 39 N.E.2d 379; McKeel v. McKeel, 185 Va. 108, 37 S.E.2d 746.

It is generally conceded by the courts in the cases immediately above cited that a decree for future installments of alimony not yet due is not, as to such installments, enforceable under the requirements of the 'full faith and credit' clause of the Federal Constitution, Art. 4, Sec. 1, because the decree as to such future installments is subject to change by the court rendering it; yet, because of the nature of a decree for the support of a wife and children, these courts have held that, for reasons of sound policy as well as the principles of comity, such decrees should be established as a local decree and clothed with all the equitable remedies by which the enforcement of a local decree of alimony may be secured.

The Illinois Appellate Court, in Rule v. Rule, supra, in a carefully considered opinion, reviewed the conflicting authorities in this country upon this question. In holding that the Illinois courts will enforce a foreign decree for alimony, even as to future installments as they become due in accordance with the provisions of the foreign decree, the court said '* * * there is considerable authority supporting the proposition that a decree for alimony represents more than a debt; that its basis is the obligation of a 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 moved; that the urgency for its effective enforcement is equally as great in one state as in another; therefore, it should be enforced by the same remedies as are applicable to domestic decrees for alimony.' [313 Ill.App. 108, 39 N.E.2d 380.]

We agree with the conclusion reached in the Rule case, and others above cited.

It is to be noted that, under Sections 1171 and 1172 of the Civil Practice Act of the State of New York, the wife is entitled to equitable remedies in...