Salmeri v. Salmeri, 4510

CourtUnited States State Supreme Court of Wyoming
Citation554 P.2d 1244
Docket NumberNo. 4510,4510
PartiesRuth E. SALMERI, Appellant (Plaintiff below), v. Edward J. SALMERI, Appellee (Defendant below).
Decision Date13 October 1976

Page 1244

554 P.2d 1244
Ruth E. SALMERI, Appellant (Plaintiff below),
Edward J. SALMERI, Appellee (Defendant below).
No. 4510.
Supreme Court of Wyoming.
Oct. 13, 1976.

Page 1245

William J. Thomson, Guy, Williams & White, Cheyenne, for appellant.

James P. Horiskey, Rooney & Horiskey, Cheyenne, for appellee.

Before GUTHRIE, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and ARMSTRONG, District Judge, Retired.

McCLINTOCK, Justice.

Ruth E. Salmeri 1 appeals from the judgment of the district court of Laramie County, Wyoming claiming that that court has erroneously and through abuse of discretion improperly failed to give full faith and credit 2 to an enforcement of the earlier

Page 1246

judgment nisi, amendment thereto, and judgment fixing amount of arrearages, as entered by the Superior Court of New Jersey, Chancery Division, Monmouth County, 3 which judgment nisi, amendment and judgment for arrearages were filed in the district court as provided by §§ 1-477.1 to 1-477.8, W.S.1957, 1975 Cum.Supp. 4

On December 23, 1966 the New Jersey court entered a judgment nisi dissolving the marriage of the parties, 5 granting alimony and child support to plaintiff, requiring defendant to pay all reasonable medical and dental expenses and maintain Blue Cross insurance for the children and the plaintiff, and to pay premiums on $20,000 of life insurance on defendant's life, naming plaintiff irrevocable primary beneficiary. On June 26, 1969 the same court entered a judgment amending the judgment nisi by requiring the defendant to pay plaintiff the sum of $1,000 per month for support and maintenance of the plaintiff, and $200 per month for the support and maintenance of each of the infant children. On June 20, 1974 the same court entered a judgment on arrears in favor of the plaintiff and against the defendant for $5,000 representing the arrearages for alimony from January 1, 1974 to May 31, 1974, for $2,000 representing arrearages for child support for the same period, for $76.20 representing pharmaceutical and medical bills which appellee was obligated to pay pursuant to the judgment nisi, and for $100 plus costs to plaintiff's attorneys for fees in bringing the motion.

On August 20, 1974 plaintiff filed the New Jersey judgments with the clerk of the district court of Laramie County, and gave notice of the filing to defendant all in accordance with the uniform act. 6 Plaintiff then caused writ of execution to be issued upon the judgment of June 20, 1974, which execution resulted in the collection of $500 by plaintiff.

Following receipt of notice of the filing and on September 5, 1974 defendant filed his 'Petition To Modify Judgment,' referring only to the judgment nisi of March

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23, 1967 and to the amendment entered June 26, 1969 wherein provisions for alimony and support had been made and amended. The petition recites a material change of circumstances since the entry of the divorce decree and prays that the judgment and amendments thereto of the New Jersey court 'now filed in this Court as a foreign judgment, be modified and amended by this Court in such manner as is justified by the change in the Defendant's circumstances and his present ability to pay;' and for such other relief as might be equitable.

Plaintiff replied to this petition, admitting those paragraphs concerning the filing of the judgments and denying allegations as to changed circumstances. Later and on November 8, 1974 she filed consolidated motions, the first of which sought the issuance of a writ of execution against the person of the defendant on the ground that he was assigning or disposing of property with intent to defraud plaintiff 7 and the second of which asked for issuance of an order to show cause why defendant should not be held in contempt of court in that he had not complied with either of the judgments and had stated that he would not comply therewith.

On November 11, 1974 hearing was held upon the defendant's petition and the plaintiff's motions. By judgment dated and entered November 19, 1974 the court found the New Jersey judgments were entitled to full faith and credit in the district court of Wyoming, but that such judgments are entitled to no more potency than is given to local decrees; that the laws of the state of Wyoming and the laws of the state of New Jersey are substantially the same with regard to modification and enforcement of judgment in divorce cases; that defendant is technically in contempt of court, but that he might purge himself of such contempt by his compliance with the order of the court; that in accordance with the judgment of the New Jersey court the current arrearage of defendant was $11,676, 8 and that the payments upon the judgment for arrearages should commence on August 17, 1978, the date upon which payments for the benefit of Kathleen should terminate; and that the financial condition of the defendant had materially and substantially changed and he was unable to pay alimony in the sum of $1,000 per month. The district court then ordered that defendant should no longer be required to carry any insurance which names appellant as beneficiary; that the child support for Kathleen Salmeri be reduced from $200 per month to $150 per month; and the alimony to be paid appellant was reduced from $1,000 per month to $200 per month for one year commencing November 1, 1974 and to terminate completely at the end of that year. It was further ordered that plaintiff be

'* * * granted judgment, in accordance with the New Jersey Judgments and amendments thereto, in the total sum of $11,676.20; provided, however, that said judgment in the sum of $11,676.20 shall be paid in the following manner, to wit; commencing on September 1, 1978, the movant shall pay the Ruth E. Salmeri the sum of $100,00, and shall pay a like sum on the first day of each month

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thereafter for a total of 117 months, the final payment being in the sum of $76,20.'

Plaintiff first claims that that part of the judgment of the district court postponing until September 1, 1978 the commencement of payment of the substantial amount of arrearages found by the district court to be due from defendant to the plaintiff and fixing such deferred payments at $100 per month, without interest, constituted a denial of full faith and credit to the New Jersey judgment. Savoie v. Savoie, 26 N.J.Misc. 67, 57 A.2d 467, a 1947 decision of the Court of Chancery of New Jersey, is cited for the proposition that once arrearages become vested with the attributes of a judgment, they cannot be modified. A more complete exposition of the New Jersey law is set forth by the Supreme Court of New Jersey in Joseph Harris & Sons, Inc. v. Van Loan, 23 N.J. 466, 129 A.2d 571, 574 (1957),

'For a century or more the practice in this State had required that the past due payments of alimony and maintenance be established by a formal order or decree of the court as past due and owing, and when that was done such decree could be docketed and a lien established in accordance with the provisions of the statute above mentioned.' 9

Unless and until this was done the judgment nisi of the court of chancery did not amount to a final judgment.

'* * * But once a judgment or order is entered establishing a fixed sum of money due for past due payments of alimony and maintenance such judgment or order insofar as it adjudges money to be due from the defendant to the plaintiff resembles a judgment at law in the pecuniary obligations is imposes and makes them equivalent to such judgments in their effects under the statute. * * *' 129 A.2d at 574.

Full Faith and Credit-The Judgment for Arrears

As we analyze the proceedings in New Jersey filed in the district court, there are really two judgments, the judgment nisi as amended being the continuing order of the court that defendant do certain things and pay certain amounts of money, which judgment we think is properly entered in Wyoming and becomes an effective judgment as though entered by a court in this state. This judgment, under our law and the New Jersey law, is subject to modification in certain respects. The second judgment is the final judgment of the New Jersey court having jurisdiction of the matter that there is a definite and fixed sum of money due from the defendant to the plaintiff, which judgment recorded in accordance with New Jersey law has the same force and effect as any other money judgment in that state, constitutes a lien upon the property of the defendant, and permits the issuance of execution to collect the same. 10 We think that under the decisions of the state of New Jersey this judgment is unassailable in that state except for material defects in the proceedings that would permit the vacation of any other judgment. It is not subject to the discretionary control of the courts. If, then, we are to give full faith and credit to that judgment we must hold that it is not subject to attack in this state except on grounds that would permit attack upon any other money judgment, such as want of jurisdiction on the court entering the judgment or lack of service so as to vest jurisdiction over the defendant.

Nor do we find in the New Jersey law or in our law 11 any provision which permits the court, having entered a final and complete judgment, to allow the judgment to be paid over a period of time or to be subject to qualifications that do not pertain to other judgments. 12 We cannot interpret

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our statute authorizing the court to alter a decree for alimony or allowance for children as permitting it to interfere with or modify what has become a money judgment. Just because the final judgment for a fixed sum of money grows out of a divorce action does not continue the power of the court granting the divorce or a subsequent court having jurisdiction of the matter to extend the time for payment thereof or otherwise modify the same. When the final judgment is entered the discretionary powers of the courts...

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    ...contempt is not an appropriate sanction for failure to pay child support. Appellant cites this court's holding in Salmeri v. Salmeri, 554 P.2d 1244 (Wyo.1976) in support of this proposition. The holding in Salmeri was limited to the facts of that case. There we found that the husband's fail......
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