Wilson v. Wilson, Civ. A. No. 77-450-A.

• Decision Date: 25 July 1980
• Docket Number: Civ. A. No. 77-450-A.
• Citation: 532 F. Supp. 152
• Parties: Barbara S. WILSON v. Andrew Franklin WILSON.
• Court: U.S. District Court — Middle District of Louisiana

532 F. Supp. 152

Barbara S. WILSON v. Andrew Franklin WILSON.

Civ. A. No. 77-450-A.

United States District Court, M. D. Louisiana, Civil Division.

July 25, 1980.

Daniel L. Avant, Avant, Wall, Thomas, Riche & Falcon, Baton Rouge, La., for plaintiff.

Jack N. Rogers, Rogers & Connelly, Baton Rouge, La., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JOHN V. PARKER, Chief Judge.

Plaintiff, Barbara S. Wilson, filed this diversity action against her former husband seeking enforcement of a Texas state court judgment. The matter came on for trial without a jury on February 28, 1980. After giving the parties the opportunity to submit post trial briefs, the matter was taken under submission. The Court now makes the following findings of fact and conclusions of law.

By final judgment dated August 31, 1970, the Ninety-eighth District Court of Travis County, Texas, awarded plaintiff a divorce from defendant. The Texas court further awarded her, as part of the division of community property, "the sum of $226.25 per month from the military retirement of Andrew Franklin Wilson, beginning on the first month that such military retirement is received by Andrew Franklin Wilson, and continuing with a like sum of $226.25 per month so long as such military retirement is received by Andrew Franklin Wilson."

At the time of the decree, Texas was the legal domicile of the plaintiff and had been for more than a year. Although defendant was not domiciled in Texas, he personally appeared before the Texas court and was represented by counsel. Defendant testified that upon the advice of counsel he did not appeal the judgment.

Subsequent to the divorce, defendant retired from the Air Force and began receiving retired pay on September 1, 1971, and has continued to receive it through the date of the trial. Defendant has not paid any portion of the retired pay to his wife. Defendant apparently retired under the provisions of 10 U.S.C. § 8911 and § 8929 and is carried on the retired list of the Air Force under 10 U.S.C. § 8966 in the rank at which he retired, major. An officer on the retired list owes no service to the government and his retired pay is considered an honorary form of pension. Geddes v. United States, 38 Ct.Cl. 428 (1903).

Plaintiff contends that the judgment is entitled to full faith and credit and that it should be made executory by this Court. Defendant asserts that the award is invalid since the retirement did not accrue until after the judgment of divorce, and it was, therefore, erroneously classified as community property. Defendant further argues that because military retirement pay is involved, countervailing and compelling federal policies justify a departure from a strict application of the full faith and credit doctrine.

This Court has jurisdiction. Diversity of citizenship and jurisdictional amount are present, 28 U.S.C. § 1332. Although federal courts have traditionally refused to exercise diversity jurisdiction in a variety of domestic relations cases under the so-called domestic relations exception to diversity jurisdiction, Crouch v. Crouch, 566 F.2d 486 (5th Cir. 1978), this exception is inapplicable here. This is an action merely to recover a fixed sum, Crouch v. Crouch, supra; Hemphill v. Hemphill, 398 F.Supp. 1134 (N.D.Ga. 1975).

"* * * Nor do we perceive any strong state interest in the adjudication of this suit or any special competence on the part of the state courts, other than their superior ability to interpret state law, which is always present in diversity suits." (Crouch v. Crouch, 566 F.2d at 488).

See, also, Dorey v. Dorey, 609 F.2d 1128 (5th Cir. 1980), where an ex-wife brought a diversity action under the full faith and credit clause for the enforcement of a California judgment for support arrearages.

Section 1738 of Title 28 of the United States Code extends the full faith and credit clause of the United States Constitution (Article 4, Section 1) to all courts, federal as well as state. It is well established that the full faith and credit clause requires that a judgment rendered in one state be enforced in a second state provided that the first state had jurisdiction over the parties and the subject matter, State of Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979); Holden v. Holden, 374 So.2d 749 (La.App. 3rd Cir. 1979). Just as the Louisiana courts would recognize a valid sister state judgment, so must this Court, see Dorey v. Dorey, supra.

It is clear that the Texas court had jurisdiction over the defendant and the subject matter. Furthermore, there is a presumption that a judgment is valid and the burden rests heavily upon the assailant to show that the rendering court was without jurisdiction, Holden v. Holden, supra; Navarrette v. Laughlin, 209 La. 417, 24 So.2d 672 (1946); Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146 (1951).

However, 28 U.S.C. § 1738 does not require federal or state courts to give a state court judgment any greater effect than it would be accorded in the state in which it was rendered, State ex. rel Huhn v. Huhn, 224 La. 591, 70 So.2d 391 (La.1954); Clay v. Clay, 322 So.2d 238 (La.App. 4th Cir. 1975), writ den. 325 So.2d 576 (La.1976); Government Personal Mutual Life Insurance Co. v. Kaye, 584 F.2d 738 (5th Cir. 1978); Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978). The issue thus raised is whether the prior state court action bars this Court from reconsidering any defenses that the defendant may have against the Texas award to his ex-wife. This issue involves the principles of res judicata and collateral estoppel.¹

Whether res judicata or collateral estoppel applies depends upon whether the second suit is on the same cause of action or not. Under federal law, the principal test for comparing causes of actions in order to tell whether res judicata or collateral estoppel is applicable is whether the primary right and duty, and the delict of wrong are the same in both actions, Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975), cert. denied, 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 830; Kemp v. Birmingham News Co., 608 F.2d 1049 (5th Cir. 1979).

In both the Texas case and here, the primary right and duty involved is whether the husband's future entitlement to military retirement pay is an asset of the community, entitling the wife to claim a share of it upon dissolution of the community. Although defendant may have federal or state law defenses,² he has not presented a distinct "wrong" from that involved in the first suit. His defenses are merely new legal theories and are necessarily intertwined with the decision to award the plaintiff a share of his retired pay. Unlike Maher v. City of New Orleans, supra, where there were two distinct claims, one federal and one constitutional, defendant's state law and federal claims are not distinct. The decision that plaintiff is entitled to part of the retired pay necessarily involves a determination that Texas community property laws are applicable. Thus, under the federal rules, res judicata would apply and bar every claim that was raised in state court and would also preclude assertion of every legal theory or ground for recovery that might have been raised, Aerojet, supra; Hall v. Tower Land and Investment Co., 512 F.2d 481 (5th Cir. 1975).

Under Texas law, res judicata bars relitigation on the same cause of action where the parties are the same and the facts are the same, Sullivan v. State, 572 S.W.2d 778 (Tex.Civ.App.1978); Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex. 1971). There must also be a final judgment on the merits in the first cause of action. It is clear that the parties are the same, the facts are the same and the Texas decree was final. In Cearley v. Cearley, 544 S.W.2d 661, 666 (Tex.1976), the Supreme Court of Texas approved a similar award of future military benefits on the theory that such a judgment would prevent successive suits after the military benefits matured.

This suit is clearly the same cause of action as the first suit. The assertion of a theory of recovery different from that of the first suit is not enough to state a new cause of action under Texas law, Abbott Laboratories, supra; Dobbs v. Navarro, 506 S.W.2d 671 (Tex.Civ.App.1974). Since this is on the same cause of action, Texas rules of res judicata bar relitigation of issues connected with the first cause of action or defenses which, with the use of reasonable diligence, might have been tried as well as those which were actually litigated, Abbott Laboratories, supra; In Interest of V. M. B., III, 559 S.W.2d 901 (Tex.Civ.App.1977), app. for writ ref., no reversible error; Chem-Gas Engineers, Inc. v. Texas Asphalt & Refining Co., 398 S.W.2d 143 (Tex.Civ. App.1965); City of Fort Worth v. Taylor, 162 Tex. 341, 346 S.W.2d 792 (1961).

Assuming that the Texas court judgment contains an error of state law,³ the error does not justify limiting the rules of res judicata of full faith and credit or allowing collateral attack upon the judgment, Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039 (1908); Mitchell v. National Broadcast Co., 553 F.2d 265 (2d Cir. 1977); Perry v. Great Southern Life Insurance Co., 492 S.W.2d 352 (Tex.Civ.App.1973); In Interest of V. M. B., III, supra; Pruett v. City of Minden, 270 So.2d 614 (La.App. 2d Cir. 1972); Fontenot v. Pan American Fire & Casualty Co., 209 So.2d 105 (La.App. 3rd Cir. 1968), writ refused 252 La. 460, 211 So.2d 328 (1968).

Even erroneous judgments may be the subject of res judicata. That doctrine is based upon the sound principle that all issues must at some point be finally and forever determined.

"A final valid judgment, even though erroneous, is not subject to collateral attack. And normally no matter how erroneous it may be on either the facts or the law it has binding res judicata and collateral estoppel effect, until properly set aside, in all of the nation's tribunals, federal and state, on the parties and their

...