Williamson v. Williamson
| Decision Date | 20 February 1981 |
| Docket Number | No. 36718,36718 |
| Citation | 275 S.E.2d 42,247 Ga. 260 |
| Parties | WILLIAMSON v. WILLIAMSON. |
| Court | Georgia Supreme Court |
Wayne M. Purdom, Purdom & Ellis, Decatur, for Betty Jane williamson.
Richard A. Katz, Atlanta, for James F. Williamson.
We granted certiorari in this case to determine "whether personal jurisdiction over a non-resident defendant is necessary in a suit to domesticate a foreign alimony judgment and enforce the judgment against property of the defendant located in this state." See, Williamson v. Williamson, 155 Ga.App. 271, 270 S.E.2d 692 (1980).
The parties to this action were married in Georgia and maintained their permanent residence in this state until the defendant husband moved to Arizona sometime prior to 1977. Plaintiff wife is a resident of DeKalb County, Georgia. In April, 1977 the defendant, alleging that the marriage was irretrievably broken, obtained a divorce in Arizona. The plaintiff did not make an appearance before the Arizona court. The divorce decree ordered that "each party be awarded the community property currently within their respective possessions as their respective sole and separate property." Custody of the couple's three children was awarded to the plaintiff. The Arizona court ordered the husband to pay $100 per month child support for each child until the child reaches the age of 18.
The defendant has served in the United States Army since his marriage to the plaintiff. He is now stationed in, and is a resident of, California. In October, 1979 the plaintiff filed suit in DeKalb County Superior Court, alleging that the defendant was, as of the date of suit, in arrears $7,650 in child support payments in default of the Arizona decree. The plaintiff sought to have the decree of the Arizona court domesticated in the courts of this state under the Full Faith and Credit Clause of the United States Constitution, Article IV, Section 1. Plaintiff served the former husband by publication. The defendant answered, denying that the State of Georgia had either personal or in rem jurisdiction in the case as he is a resident of California, not before the Georgia courts and owns no property in Georgia. The defendant filed a separate motion to dismiss based on his contention that the Georgia court had no jurisdiction "of any kind" over him.
The plaintiff amended her complaint to contend that the Arizona judgment may be enforced by garnishment upon affidavit of default. She also alleged that "(d)efendant's property within the state gives this court jurisdiction for the enforcement of the Arizona judgment to the extent of his property within the state." The only "property" which plaintiff contends defendant has within the State of Georgia is his United States Army salary which is not issued in this state.
At the hearing on the motion to dismiss for lack of jurisdiction, the trial court made the following findings of fact: that the defendant was a resident of California at the commencement of this action and all times subsequent thereto, and that the only property contended to be within the state was the defendant's United States Armed Forces salary. Plaintiff made no showing at the hearing that defendant's salary has any connection with the State of Georgia. The trial court then concluded that the plaintiff's complaint set forth an in personam action which required personal jurisdiction over the defendant and granted the motion to dismiss.
The Court of Appeals affirmed, finding that "as defendant is a resident of California, the sister state judgment (Arizona) cannot be domesticated where personal service upon the defendant is lacking." Noting that the "plaintiff has attempted to turn this matter into an in rem proceeding," the Court of Appeals concluded that if defendant's salary "is the only property the defendant has, it is not subject to an in rem proceeding in Georgia, as he is not a resident or domiciled in this state."
The plaintiff argues that defendant's salary is property within this state which can be garnished pursuant to 42 U.S.C. § 659(a) once the Arizona decree has been domesticated.
1. We first address the question of whether we are obligated to recognize the Arizona child support decree under the Full Faith and Credit Clause.
The United States Supreme Court has stated that "... generally speaking, where a decree is rendered for alimony and is made payable in future installments, the right to such installments 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 installments, since, ... '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,' ... (T)his 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 installments ordered by the decree to be paid, even though no application to annul or modify the decree in respect to alimony had been made prior to the installments becoming due." Sistare v. Sistare, 218 U.S. 1, 16-17, 30 S.Ct. 682, 686, 54 L.Ed. 905 (1909).
We have followed the rule that under the Full Faith and Credit Clause we must recognize the final and unmodifiable judgment of sister states, and permit suits for amounts due and unpaid thereunder up until the time of suit. Blue v. Blue, 243 Ga. 22, 252 S.E.2d 452 (1979); Cureton v. Cureton, 132 Ga. 745, 65 S.E. 65 (1909); McLendon v. McLendon, 66 Ga.App. 156, 17 S.E.2d 252 (1941). Although a foreign decree may be non-final because it can be prospectively modified, "for reasons of comity", "Georgia courts (will) recognize and give prospective enforcement to a foreign alimony or child support decree by establishing it as the decree of a Georgia court through domestication and treating it as though it were a local decree." Blue, supra, 243 Ga. at 23, 252 S.E.2d 452.
An Arizona decree for child support may not be modified retroactively. Stanley v. Stanley, 24 Ariz.App. 37, 535 P.2d 629 (1975); Badertscher v. Badertscher, 10 Ariz.App. 501, 460 P.2d 37 (1969). In this sense it is a "final decree." Thus we are bound by the Full Faith and Credit Clause to recognize the validity of the Arizona decree in this state. Left to be considered is whether DeKalb Superior Court had jurisdiction to domesticate the decree and enforce it against the defendant.
2. In Shaffer v. Heitner, 433 U.S. 186, 199, 97 S.Ct. 2569, 2577, 53 L.Ed.2d 683 (1976), the Court noted...
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