Thones v. Thones
| Decision Date | 26 June 1947 |
| Parties | THONES v. THONES. |
| Court | Tennessee Supreme Court |
Appeal from Chancery Court, Shelby County; L. D. Bejach, Chancellor.
Action by Edith M. Thones against W. H. Thones to recover a money judgment for accrued alimony installments due under foreign divorce decree and for general relief. From a decree awarding the plaintiff a money judgment but declining to enforce collection of the judgment by contempt proceedings, the plaintiff appeals.
Decree modified and cause remanded.
King, King & Laughlin and Caruthers Ewing, Jr. all of Memphis, for appellant.
Ben W Kohn, of Memphis, for appellee.
The sole question for determination on this appeal is whether a foreign judgment for alimony which the husband has not paid after becoming due is enforceable in this state by contempt proceedings to the same extent as if such judgment had been originally rendered in this state, or whether such accrued unpaid alimony will in this state be treated merely as a debt collectible solely by execution when reduced to a money judgment.
The question is conceded to be one of first impression in this court, and arises upon the following facts: In 1933 the Superior Court of Fulton County, Georgia, which court had jurisdiction of the person and of the subject matter of the litigants, granted Mrs. Edith M. Thones a divorce from W. H Thones, and this decree ordered him to pay her alimony of $50 per month. He came to Tennessee and, disregarding the judgment and order of the Georgia Court, has made no payment thereon to Mrs. Thones since July of 1936. He has no visible property subject to execution, and has arranged with his employer to pay his salary in advance. The result is that garnishment is totally ineffective. Mrs. Thones, who is a resident of Florida, sued in the Chancery Court of Shelby County for a money judgment against Thones for all installments of alimony accrued since July 1936, and for such general relief 'to which she may be entitled under and by virtue of the premises'. An alimony award by a Georgia Court is enforceable in Georgia by contempt proceedings.
The chancellor awarded Mrs. Thones a money decree for all installments of alimony accrued since July 1936, together with interest thereon, or a total money judgment of $7,800, but declined the insistence of Mrs. Thones to enforce or attempt to enforce collection of this judgment or any part thereof by contempt proceedings. The chancellor, in refusing to issue an attachment for contempt, said 'this is an open question in this state' and appeal is directed only to this question.
The courts of the various sister states wherein the question has arisen disagree in their respective conclusions. A number of such courts hold that alimony due under a decree of a foreign court is merely a debt collectible only by execution upon a judgment recovered locally upon such foreign judgment. Among the jurisdictions so holding are Massachusetts, Michigan, New Jersey and New York. The reasoning of these cases is that the full faith and credit clause of the Federal Constitution, Art. 4, § 1, has no reference to the method of or remedy for enforcement of a foreign judgment, and that the mere circumstance of the parties being husband and wife is no ground for relief by extraordinary process. Others of these cases place their conclusions upon the ground that the power to enforce alimony awards is purely statutory, and that such statutes have no extraterritorial operation, and hence could not be brought over into another state. Those courts which take the position that such foreign judgments will not be enforced by the equitable remedy of contempt, etc., probably represent the majority view of our sister jurisdictions.
Other jurisdictions wherein the question has been determined hold that a foreign unpaid judgment for alimony is enforceable in a sister state in the same manner and to the same extent that a local judgment for alimony is enforceable in such state, and is entitled to all the equitable remedies of the local court to the same extent as if the decree had been rendered in that court. In all of these cases, the law of the foreign jurisdiction rendering the original alimony decree permitted enforcement of collection by contempt proceedings. Among the courts taking this view of the matter are those of California, Minnestoa, Mississippi, Florida and Kentucky. The courts which take this view of the question predicate their conclusions either upon their interpretation of the full faith and credit clause of the Federal Constitution, or by reason of comity between the states, or as a matter of public policy, or for all of these reasons. It is said in these cases that a decree for alimony represents more than a debt, that under the common law and by reason of the inherent power of equity such decree is enforceable by equitable remedies such as attachment for contempt, etc., and that the denial by a sister state of the enforcement of such foreign judgment by such means amounts to a failure in fact to give full faith and credit to the foreign judgment. These courts take the position that the obligation of the husband to support his wife is a matter of public concern, no matter where the decree for alimony is rendered, and that removal from one state to another has not reduced the obligation to the ordinary category of a money judgment, since such removal has wrought no change in the nature or basis of the obligation no matter 'where they or either may be', Ostrander v. Ostrander, 190 Minn. 547, 252 N.W. 449, 450; and that the support of these dependents is necessary in the interest of society, and in response to the requirements of justice, whether the husband is in the state where he was originally ordered to pay alimony, or whether, in seeking escape from this moral and legal obligation, he has fled or gone to another state.
A number of decisions of our various states adjudicating the respective conflicting views of the question are collected in Shibley v. Shibley, 181 Wash. 166, 42 P.2d 446, 97 A.L.R. commencing at page 1191 and in Cousineau v. Cousineau, 155 Or. 184, 63 P.2d 897, 109 A.L.R. commencing at page 643. Commenting upon the recent trend of the courts on the question, the annotator in 109 A.L.R., at page 653 says 'the inclination of the courts is towards granting equitable remedies in such cases' and that 'the better considered recent cases adhere to the view' of granting equitable relief, such as contempt proceedings under such circumstances. In the California case of Thomas v. Thomas, 14 Cal.2d 355, 94 P.2d 810, 812, the court, adhering to the minority view of the question said that there is 'now no question but that the better considered recent cases adhere to the view that a local judgment based on a foreign decree of alimony will be enforced by equitable remedies as by contempt'. In the Kentucky case of Glanton v. Renner, 285 Ky. 808, 149 S.W.2d 748, the court in adhering to the minority view likewise observed that the recent trend of the courts is to invoke the equitable remedies of contempt, etc. In that case the complainant wife was not a resident of Kentucky.
Perhaps one of the leading cases adhering to the granting of extraordinary relief in the enforcement of such decrees is the well considered Mississippi case of Fanchier v. Gammill, 148 Miss. 723, 114 So. 813, 814. In that case the court said: ...
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