Sorenson v. Spence

• Decision Date: 29 March 1937
• Docket Number: 7991.
• Citation: 272 N.W. 179,65 S.D. 134
• Parties: SORENSON v. SPENCE.
• Court: South Dakota Supreme Court

272 N.W. 179

65 S.D. 134

SORENSON v. SPENCE.

No. 7991.

Supreme Court of South Dakota

March 29, 1937

Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.

Action by Velma D. Spence Sorenson against Wesley T. Spence. From an order overruling defendant's demurrer to the complaint the defendant appeals.

Order affirmed.

Caldwell & Burns, of Sioux Falls, for appellant.

Philo Hall, of Brookings, for respondent.

RUDOLPH Presiding Judge.

This case is here on a demurrer to the complaint. The complaint alleges that on the 30th day of October, 1929, the district court of Adams county, Neb., rendered a judgment and decree divorcing the plaintiff from the defendant; that prior to the entry of the decree of divorce, the plaintiff and defendant had entered into an agreement whereby it was agreed that the defendant would pay to the plaintiff the sum of $30 per month for the support and maintenance of the children, the care and custody of which were awarded to the plaintiff. The decree entered by the Nebraska court set out in full the agreement of the parties, and then, among other things, ordered that the defendant pay to the plaintiff the sum of $30 per month commencing on November 1, 1929. The complaint then alleges that, since the entry of the decree by the Nebraska court both the plaintiff and defendant have become residents of this state, and that both have remarried; that the defendant is gainfully employed and able to comply with the decree of the Nebraska court upon which there was accrued and unpaid at the time of the filing of the complaint the sum of $1,860 "that there has never been any modification of said judgment and decree and that the same is in full force and effect." There is the further allegation of the need of the plaintiff and her children for the money due under the Nebraska decree, and then the prayer of the complaint which is, in part, as follows: "Wherefore, plaintiff prays that judgment, decree and order of this Court that the said judgment and decree rendered by the District Court of Adams County, Nebraska, on October 30, 1929, be confirmed and made the judgment and decree of this court, and that the same be fully enforced against this defendant in accordance with the provisions thereof. * * *" The trial court overruled defendant's demurrer to the complaint, and this is an appeal from that order.

The respondent here first contends that the judgment and decree of the Nebraska court, in so far as it relates to the payment of the $30 a month to the plaintiff by the defendant, comes within the meaning of article 4, § 1, the full faith and credit clause of the Constitution of the United States, and therefor should be recognized and enforced in South Dakota.

The application of the full faith and credit clause of the Constitution to foreign judgments similar to the judgment of the Nebraska court was fully discussed and decided by the United States Supreme Court in the case of 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, wherein the court said: "First, that, generally speaking, where a decree is rendered for alimony and is made payable in future instalments, the right to such instalments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the instalments, since, as declared in the Barber Case [21 How. 582, 16 L.Ed. 226], 'alimony decreed to a wife in a divorce of separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is.' Second, that this general rule, however, does not obtain where, by the law of the state in which a judgment for future alimony is rendered, the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive the instalments ordered by the decree to be paid, even although no application to annual or modify the decree in respect to alimony had been made prior to the instalments becoming due."

However, entirely apart from the mandate of the Federal Constitution, this court is of the opinion that sound public policy and reasonable grounds of comity require that we give effect in this state to the Nebraska decree, as hereinafter set forth. This opinion and conclusion renders unnecessary any discussion concerning the extent to which we are required to recognize the Nebraska decree under the Federal Constitution. We give effect to the Nebraska decree in such manner that the requirements of the Federal Constitution are fully met, if such recognition exceeds the requirement of that document, no federal question is involved, and no discussion thereof is necessary.

The...