Tolley v. Tolley

• Decision Date: 27 May 1946
• Docket Number: 4-7912
• Citation: 194 S.W.2d 687,210 Ark. 144
• Parties: Tolley v. Tolley
• Court: Arkansas Supreme Court

194 S.W.2d 687

210 Ark. 144

Tolley v. Tolley

No. 4-7912

Supreme Court of Arkansas

May 27, 1946

Appeal from White Circuit Court; E. M. Pipkin, Judge.

Affirmed in Part and Reversed in Part.

Owen C. Pearce and Culbert L. Pearce, for appellant.

W D. Davenport, for appellee.

OPINION

Ed. F McFaddin, Justice.

The essential question on this appeal is the force and effect to be given in Arkansas to a Kansas judgment (1) awarding money, and (2) attempting to vest title of Arkansas real estate.

Appellant Lillie Mae Tolley, and appellee, James Alvis Tolley, were married in Arkansas in 1925, and two children were born to the marriage. Appellant and appellee separated in 1941, and thereafter each party made an unsuccessful effort to obtain a divorce in Arkansas. Then, in September, 1944, while the appellant was residing in Kansas, the District Court of Wyandotte county, Kansas, in a suit filed by the appellant and based on personal service on appellee, rendered a judgment which awarded appellant: (1) a divorce; (2) final judgment for $ 195; (3) $ 10 per week from date of judgment until further orders of the court for the support and education of the minor child then in the custody of appellant; and (4) title to certain real estate in White county, Arkansas, free and clear of all claims and liens of James A. Tolley.

Basing her claim on the said Kansas judgment, Lillie Mae Tolley, on April 27, 1945, filed suit against James A. Tolley in the Circuit Court of White county, Arkansas, seeking: (1) judgment both for the $ 195, and also for the continuing sum of $ 10 per week for the support of the child, and past due under the Kansas judgment, supra, and (2) possession of the forty acres in White county as described in the Kansas judgment, supra. To this complaint, appellee filed a demurrer, which was sustained. Appellant's complaint was dismissed upon her refusal to plead further; and there is this appeal.

The record reflects that the appellee filed answer in addition to demurrer, and the appellant demurred to the answer. However, the cause was heard by the White Circuit Court solely on the pleadings; and the court ruled that the appellee's demurrer to the complaint should be sustained. So, we disregard on this present appeal any and all reference to the appellee's answer and the appellant's demurrer thereto.

We hold that the appellee's demurrer should have been (1) overruled as to those parts of the appellant's action which sought money judgment; and (2) sustained as to so much of the appellant's action as sought ejectment for the land.

I. The Action to Enforce the Kansas Judgment for Money. Article IV, § 1 of the Constitution of the United States says: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." 28 U.S.C. A., § 688, was enacted to carry into effect the last sentence above quoted. The judgment of the District Court of Wyandotte county, Kansas, said: "It is further ordered and decreed that plaintiff have judgment against the defendant in the sum of $ 120 for past-due support and maintenance, and attorney fees in the sum of $ 75; total $ 195." This language quoted immediately above was a final judgment, and entitled to full faith and credit in the State of Arkansas under the provisions of the United States Constitution, as above quoted. Beauchamp v. Bertig, 90 Ark. 351, 119 S.W. 75, 23 L. R. A., N. S., 659; Lewis v. United Order of Good Samaritans, 182 Ark. 914, 33 S.W.2d 53; Motsinger v. Walker, 205 Ark. 236, 168 S.W.2d 385. Therefore, so much of the appellant's complaint as was an action on this Kansas judgment for $ 195 stated a good cause of action; and to that extent the demurrer should have been overruled.

The appellant also sought judgment in this action in White county for the allegedly past-due weekly installments of support money awarded by the Kansas court, the judgment of which (under date of September 27, 1944) reads: "It is further ordered that plaintiff be and she is awarded the care, custody and control of their minor child, Mary Jacquline Tolley; that defendant be and he is hereby ordered and directed to pay to the plaintiff the sum of $ 10 per week from this date for the support, maintenance and education of said minor child, until a further order of this court."

Whether this award for support money is a final judgment and entitled to full faith and credit presents an interesting question, and one not discussed in Kelly v. De Wees, 200 Ark. 770, 140 S.W.2d 1011. Under the rule laid down by the Supreme Court of the United States in Sistare v. Sistare (218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L. R. A., N. S., 1068, 20 Ann. Cas. 1061), and reaffirmed by the Supreme Court of the United States in Barber v. Barber (323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82, 157 A. L. R. 163), these weekly payments of support money are within the purview of the full faith and credit clause of the Federal Constitution, if the judgment for such future payments is not subject to annulment or modification by the Kansas court as to past-due and unsatisfied installments. In Barber v. Barber, supra, the United States Supreme Court, in discussing the holding in Sistare v. Sistare, supra, said: "The court held that a decree for future alimony is, under the Constitution and the statute, entitled to credit as to past-due installments, if the right to them is 'absolute and vested,' even though the decree might be modified prospectively by future orders of the court. See, also, Barber v. Barber, 21 How. (U. S.) 582, 16 L.Ed. 226. The Sistare case also decided that such a decree was not final, and therefore not entitled to credit, if the past-due installments were subject retroactively to modification or recall by the court after their accrual. See, also, Lynde v. Lynde, 181 U.S. 183, 187, 45 L.Ed. 810, 814, 21 S.Ct. 555."

We are not concerned here with the effect the Arkansas courts give to their own awards for future payments for support, but rather with the effect the Kansas courts give to Kansas awards for future payments for support. We turn, then, to the law of Kansas as declared by the courts of the state. In Sharp v. Sharp, 154 Kan. 175, 117 P.2d 561, the Kansas Supreme Court has clearly stated the law of that State; and we quote:

"With respect to installments due and unpaid, the judgment was final. Burnap v. Burnap, 144 Kan. 568, 71 P.2d 899; Wilkinson v. Wilkinson, 147 Kan. 485, 77 P.2d 946. In Paul v. Paul, 121 Kan. 88, 245 P. 1022, 46 A. L. R. 1197, in a divorce action in Nebraska an order for temporary alimony payable in installments was made. An action on the judgment for the unpaid installments was brought in this state. As the order as to the unpaid installments had not been modified by the Nebraska court, it was held the judgment was final and the action would lie. The rule is the same in other jurisdictions. 2 Beal, Conflict of Laws, p. 1393.

"In Cheever v. Kelly, 96 Kan. 269, 150 P. 529, it was held, as stated in the syllabus: 'When installments of alimony awarded by a decree of divorce and alimony become due and are not paid, they may be collected by suit, judgment, and execution, although the decree provided it should not be a lien on the defendant's property.'

"As the court is without power to modify or change past-due installments for the support and education of minor children (Davis v. Davis, 145 Kan. 282, 65 P.2d 562), we think such accrued unpaid installments may be collected by suit, judgment and execution the same as past-due unpaid alimony installments. 2 Freeman on Judgments, 5th Ed., § 1067." See, also, Wilkinson v. Wilkinson, 147 Kan. 485, 77 P.2d 946; and Trunkey v. Johnson, 154 Kan. 724, 121 P.2d 247. See, also, Griffin v. Griffin, 327 U.S. 220.

Interesting annotations on the question of the full faith and credit to be accorded past-due installments for alimony or support may be found in 41 A. L. R. 1419, 46 A. L. R. 1200; 57 A. L. R. 1113; and 157 A. L. R. 170. In 27 C. J. S. 1286, Divorce, § 329, the various holdings are summed up: "On the other hand, a decree for the support of a minor child, which is unalterable, or so much thereof as is unalterable, is within the application of the full faith and credit clause of the Federal Constitution, . . ."

The holdings of the Supreme Court of Kansas demonstrate that the past-due installments for support are final and unalterable, and are not subject to annulment or modification by the Kansas courts. It therefore follows that the appellee's demurrer should also have been overruled to so much of the appellant's complaint as sought to enforce in Arkansas, the unpaid and unsatisfied awards for weekly support adjudged by the Kansas court, and past-due at the time of the filing of this cause in the White Circuit Court.

II. The Action to Enforce the Kansas Judgment Affecting Title to Arkansas Real Estate. The judgment of the District Court of Wyandotte county, Kansas, contained this language "It is further ordered and decreed that plaintiff be and she is hereby awarded the following described real estate, to-wit: The southeast quarter (1/4) of the southeast quarter (1/4) of section ten (10), township seven (7) north, range five (5) west, consisting of forty (40) acres of land, more or less, in...