Stubbs v. Stubbs

• Decision Date: 20 October 1939
• Docket Number: No. 59.,59.
• Citation: 287 N.W. 883,290 Mich. 473
• Parties: STUBBS v. STUBBS.
• Court: Michigan Supreme Court

290 Mich. 473

287 N.W. 883

STUBBS

v.STUBBS.

No. 59.

Supreme Court of Michigan.

Oct. 20, 1939.

Action by Elsie Stubbs against Frank S. Stubbs for alimony due under a New York divorce decree. From an adverse judgment, defendant appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Robert M. Toms, judge.

Argued before the Entire Bench.

Charles Bowles, of Detroit, for appellant.

Hill, Hamblen, Essery & Lewis, of Detroit (Charles C. Andrews, of Detroit, of counsel), for appellee.

SHARPE, Justice.

May 24, 1924, plaintiff was granted a final decree of divorce in the State of New York which contained an order that defendant pay $20 per week alimony. Plaintiff brings an action at law in Michigan for judgment for the amount owing on the decree. It is stipulated that the amount due and owing is the sum of $17,500. The trial court awarded plaintiff a judgment in the amount named.

Defendant appeals and contends that: First, under the New York statute, section 1170 of the Civil Practice Act enacted in 1920, as amended in 1925, Laws 1925, c. 240, the court which rendered the decree herein has the inherent power to annul, vary or modify said provision for alimony. Consequently, the same is not such a fixed and determined amount as is actionable at law. Second, under art. 4, § 1, United States Constitution, U.S.C.A., the State of Michigan is bound to give full faith and credit, not only to the New York decree, but to its statutes, and under this rule, 3 Comp.Laws 1929, § 12770, cannot be construed as giving an action at law in Michigan on a decree which was not actionable in New York.

Plaintiff's action is predicated upon Act No. 52, Pub. Acts 1911, 3 Comp.Laws 1929, §§ 12770-12772, which reads as follows:

‘Section 1. In all cases where a decree for alimony has been rendered in another state in a case where the party against whom the decree was rendered was present in court or was personally served with process within the jurisdiction of the court, the alimony decreed upon the final hearing may be recovered in an action at law in this state, regardless of whether the same is decreed to be paid in one (1) payment or in installments from time to time.

‘Sec. 2. If the defendant in this state shows that he has made proper application in the court of the other state for a reduction or any further order in relation to the alimony in the courts of the other state, the court in this state may stay the proceedings in this state on such terms as it desires to impose.

‘Sec. 3. All judgments in such cases shall be stayed sixty (60) days, and if during said term the...