Worthley v. Worthley

• Decision Date: 28 April 1955
• Docket Number: No. L,L
• Citation: 44 Cal.2d 465,283 P.2d 19
• Parties: Ruth M. WORTHLEY, Plaintiff and Appellant, v. Edward J. WORTHLEY, Defendant and Respondent. A. 22889.
• Court: California Supreme Court

Page 19

283 P.2d 19

44 Cal.2d 465

Ruth M. WORTHLEY, Plaintiff and Appellant, v. Edward J. WORTHLEY, Defendant and Respondent.

No. L. A. 22889.

Supreme Court of California, In Bank.

April 28, 1955.

Kenny & Morris and Robert W. Kenny, Los Angeles, for appellant.

Slane, Mantalica & Davis and Frank Barclay, Los Angeles, for respondent.

TRAYNOR, Justice.

Plaintiff appeals from a judgment barring further prosecution of this action. The judgment was entered after a trial of defendant's special defense, Code Civ.Proc. § 597, to plaintiff's complaint for prospective and retroactive enforcement of defendant's obligations under a separate maintenance decree entered in the New Jersey Court of Chancery on May 19, 1947. Plaintiff and defendant were married in New Jersey in March 1943, and separated in November 1946. In the action for separate maintenance defendant appeared personally and by counsel, and the decree ordered him to pay $9 a week for plaintiff's support. About ten months after the decree was entered, defendant left New Jersey for Nevada, and in March 1948 he commenced an action for divorce in that state. Although plaintiff was served in New Jersey with summons and a copy of the complaint in the Nevada action, she did not appear therein. On July 7, 1948, the Nevada Second Judicial District Court granted defendant a divorce.

Defendant had paid all of the sums due under the New Jersey decree at the time the divorce was granted by the Nevada court but made no further payments thereafter. The Nevada decree contained no provision for alimony. On November 16, 1951, plaintiff commenced this action in the Superior Court of Los Angeles County, the county of defendant's present residence. She alleged that the New Jersey decree 'has become final and has never been vacated, modified, or set aside' and that defendant is delinquent in his payments thereunder in the amount of $1,089. She seeks a judgment for the accrued arrearages and asks that the New Jersey decree be established as a California decree and that defendant be ordered to pay her $9 a week until further order of the court. Defendant answered the complaint by a general denial and by alleging, as an affirmative defense, that the Nevada divorce decree had terminated his obligations under the earlier New Jersey separate maintenance decree. On defendant's motion, the affirmative defense was tried first under the procedure established by section 597 of the Code of Civil Procedure. The trial court concluded that the Nevada decree dissolved the marriage and was therefore a bar to the maintenance of an action to enforce defendant's obligations under the New Jersey decree.

Since plaintiff does not question the validity of the divorce granted by the Nevada court, that decree, being regular on its face, must be accorded full faith and credit in this state. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279; Id., 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577. The controlling questions on this appeal are, therefore, (1) whether the dissolution of the marriage terminated defendant's obligations under the New Jersey decree and, if not, (2) whether and to what extent those obligations are enforceable in this state.

Since the full faith and credit clause compels recognition of the Nevada decree only as an adjudication of the marital status of plaintiff and defendant and not of any property rights that may be incident to that status, Estin v. Estin, 334 U.S. 541, 548-549, 68 S.Ct. 1213, 92 L.Ed. 1561, the effect of the dissolution of the marriage on defendant's pre-existing obligations under the New Jersey maintenance decree must be determined by the law of New Jersey. Sutton v. Leib, 342 U.S. 402, 406, 409, 72 S.Ct. 398, 96 L.Ed. 448; Biewend v. Biewend, 17 Cal.2d 108, 111, 114, 109 P.2d 701, 132 A.L.R. 1264. The Supreme Court of that state has recently held that a New Jersey 'decree for maintenance (is not) superseded by a judgment of the foreign state where jurisdiction has only been obtained by publication entered in an ex parte proceeding in which in personam jurisdiction over the wife to whom the maintenance decree runs was not obtained.' Isserman v. Isserman, 11 N.J., 106, 93 A.2d 571, 575. We must therefore conclude that defendant's obligations under the New Jersey decree were not terminated by the dissolution of the marriage effected by the Nevada court in a proceeding in which personal jurisdiction over plaintiff was not obtained.

The second question is more difficult. Since the New Jersey decree is both prospectively and retroactively modifiable, N.J.S.A. § 2A:34-23, we are not constitutionally bound to enforce defendant's obligations under it. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905; Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810; Barber v. Barber, 21 How. 582, 16 L.Ed. 226. ¹ Nor are we bound not to enforce them. People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 615, 67 S.Ct. 903, 91 L.Ed. 1133; Cummings v. Cummings, 97 Cal.App. 144, 151, 275 P. 245. The United States Supreme Court has held, however, that if such obligations are enforced in this state, at least as to accured arrearages, due process requires that the defendant be afforded an opportunity to litigate the question of modification. Griffin v. Griffin, 327 U.S. 220, 233-234, 66 S.Ct. 556, 90 L.Ed. 635; see also, Gough v. Gough, 101 Cal.App.2d 262, 267-268, 225 P.2d 668. It has also clearly indicated that as to either prospective or retroactive enforcement of such obligations, this state 'has at least as much leeway to disregard the judgment, to qualify it, or to depart from it as does the State where it was rendered.' People of State of New York ex rel. Halvey v. Halvey, supra, 330 U.S. 610, 615, 67 S.Ct. 903, 906.

In Biewend v. Biewend, 17 Cal.2d 108, 113-114, 109 P.2d 701, 704, 132 A.L.R. 1264, it was held that the California courts will recognize and give prospective enforcement to a foreign alimony decree, even though it is subject to modification under the law of the state where it was originally rendered, by establishing it 'as the decree of the California court with the same force and effect as if it had been entered in this state, including punishment for contempt if the defendant fails to comply. (Citations.)' Similar holdings in reference to both alimony and support decrees have repeatedly been made by the District Courts of Appeal, see the cases cited in Biewend v. Biewend, supra, 17 Cal.2d at page 113, 109 P.2d at pages 704, 705; see, also, Starr v. Starr, 121 Cal.App.2d 633, 263 P.2d 675, modifying prospectively a Nevada decree for child support; Toohey v. Toohey, 97 Cal.App.2d 84, 87, 217 P.2d 108; Tomkins v. Tomkins, 89 Cal.App.2d 243, 250, 200 P.2d 821, and by the courts of other states, Sackler v. Sackler, Fla., 47 So.2d 292, 294-295; Rule v. Rule, 313 Ill.App. 108, 39 N.E.2d 379; Matson v. Matson, 186 Iowa 607, 625, 173 N.W. 127; Fanchier v. Gammill, 148 Miss. 723, 737, 114 So. 813; Little v. Little, 146 Misc. 231, 233, 262 N.Y.S. 654, affirmed without opinion, 236 App.Div. 826, 259 N.Y.S. 973, reargument denied, 237 App.Div. 817, 260 N.Y.S. 981; Lockman v. Lockman, 220 N.C. 95, 98, 16 S.E.2d 670; Cousineau v. Cousineau, 155 Or. 184, 201-202, 63 P.2d 897, 109 A.L.R. 643; Johnson v. Johnson, 194 S.C. 115, 8 S.E.2d 351, 354; Sorensen v. Spence, 65 S.D. 134, 272 N.W. 179, 180-181; McKeel v. McKeel, 185 Va. 108, 113, 37 S.E.2d 746; see also, Kruvand v. Kruvand, Fla., 59 So.2d 857; Ostrander v. Ostrander, 190 Minn. 547, 549-550, 252 N.W. 449; Shibley v. Shibley, 181 Wash. 166, 42 P.2d 446, 97 A.L.R. 1191. It was stated in the Biewend case, however, that the Missouri decree would be established as a decree of the California courts 'until such time as the Missouri court modifies its decree.' 17 Cal.2d 108, 114, 109 P.2d 701, 705. On reconsideration we have concluded, for reasons that appear below, that this statement was erroneous insofar as it implied that the California courts will not try the issue of modification on its merits, and that the courts of this state should undertake to try such issues. ²

The District Court of Appeal for the Third Appellate District in a recent case has prospectively modified a support obligation created in a Nevada decree. Starr v. Starr, supra, 121 Cal.App.2d 633, 263 P.2d 675. In that case the plaintiff-wife obtained a divorce in Nevada in 1949, at which time she was awarded custody of her minor child and the defendant-husband was ordered to contribute $25 per month toward the support of the child. Subsequently the wife and child became residents of California, and in 1951 she brought an action asking that the husband's support payments be increased to $75 per month. In affirming the trial court's order increasing the husband's obligation to $75 per month, the District Court of Appeal drew an analogy to Sampsell v. Superior Court, 32 Cal.2d 763, 197 P.2d 739, in which it was held that custody rights established in one state were modifiable in any other state that had jurisdiction over the subject matter. The court concluded that if the California courts could modify the custody rights created in the Nevada decree, there was no reason why the support obligation created in the same decree could not also be modified. Similarly, the courts of a number of other states have affirmed their willingness to undertake prospective modification of alimony and support obligations created in sister-state decrees. See, Blauvelt v. Blauvelt, 199 Ark. 710, 136 S.W.2d 201, 204; Sackler v. Sackler, supra, Fla., 47 So.2d 292, 294-295; Lopez v. Avery, Fla., 66 So.2d 689, 693; Durfee v. Durfee, 293 Mass. 472, 477-479, 200 N.E. 395; Turnage v. Tyler, 183 Miss. 318, 184 So. 52; Robison v. Robison, 9 N.J. 288, 88 A.2d 202, 204, certiorari denied 344 U.S. 829, 73 S.Ct. 33, 97 L.Ed. 645; Johnson v. Johnson, 196 S.C. 474, 13 S.E.2d 593, 595-596, 134 A.L.R. 318; Setzer v. Setzer, 251 Wis. 234, 236-237, 29...