Opinion
13341
February 1, 1932.
Before FOSTER, J., County Court, Spartanburg, April, 1931. Affirmed.
Action by Josepha T. Alexander against Alonzo B. Alexander. An order was entered awarding judgment to the plaintiff on the first cause of action, and sustaining a demurrer to the second cause of action, and the defendant appeals.
ORDER OF COUNTY COURTThis action was instituted by the service of a summons and complaint upon the defendant, a resident of Spartanburg County, S.C. on April ...., 1931.
Two causes of action are alleged in the complaint. The first cause of action seeks judgment against the defendant for certain sums claimed by the defendant as past-due alimony by virtue of a decree of the Circuit Court for Anne Arundel County, Md., which was alleged to be a Court of general jurisdiction duly created by the laws of the State of Maryland and for reasonable attorneys' fees necessitated by the employment of attorneys to prosecute this action. The second cause of action seeks to have the decree of the Maryland Court confirmed and adopted and entered as a judgment of this Court on the judgment rolls of Spartanburg County, S.C.
The third paragraph set forth in the first cause of the action in the complaint is as follows:
Paragraph 3. That on the 21st day of February, 1928, in a cause entitled Alonzo B. Alexander, Plaintiff, v. Josepha T. Alexander, Defendant and Cross-Plaintiff, in said Court, which Court had jurisdiction of both parties therein, a decree was rendered by Hon. Robert Moss, A.J., which decree is duly entered, is a final judgment of said Court, and is as follows:
"This cause standing ready for hearing and being submitted, the solicitors for the respective parties not wishing to be heard, and the proceedings being read and considered.
"It is upon this 21st day of February, 1928, by the Circuit Court for Anne Arundel County, in Equity, adjudged, ordered and decreed that the above-named defendant, Josepha T. Alexander, be and she is hereby divorced a mensa et thoro from the plaintiff, Alonzo B. Alexander; the said defendant, Josepha T. Alexander, to have the guardianship and custody of their infant child, Alonzo B. Alexander, Junior. And it is further ordered that the plaintiff's bill of complaint herein be and the same is hereby dismissed with costs. This decree being granted upon the defendant's cross-bill.
"And it is further adjudged, ordered and decreed that the said plaintiff, Alonzo B. Alexander, be and he is hereby ordered and required to pay unto the said defendant, Josepha T. Alexander, the sum of One Hundred Dollars ($100.00) per month, as alimony for the support of herself and said infant child, so long as the said defendant, Josepha T. Alexander resides with the said child in the United States; the first payment of said alimony to be made on the first day of March, 1928, for the month of March, 1928, and like payments of One Hundred Dollars ($100.00) each per month, on the first day of each succeeding month thereafter. And should the said defendant, Josepha T. Alexander, return to her native country, the said plaintiff will be at liberty to ask for a reduction of this alimony, based on the purchasing value of the dollar at her home, as compared with the purchasing value of the dollar in the United States. And it is further ordered that the plaintiff, Alonzo B. Alexander, pay the costs of this suit."
The fourth paragraph of the complaint alleges that only $50.00 has been paid to plaintiff by the defendant for the period of January 1, 1931, through April 1, 1931.
In his answer, the defendant admitted all material allegations of the first cause of action except any liability for attorney's fees. The defendant also denied the allegation of Paragraph 5 to the effect that the plaintiff and her infant child are dependent upon the payment of alimony as ordered, but I do not deem this allegation material in considering the issues arising herein.
The defendant demurred to the second cause of action on the ground that the decree of the Maryland Court is not a final adjudication of the rights of the parties in respect to any future installments of alimony, and that the said judgment, which provides for the payment of future alimony, is subject to the inherent jurisdiction of the Maryland Courts to change the amount of said decree upon proper application therefor and due showing.
On June 9th, 1931, plaintiff's attorneys served upon defendant's attorneys a notice of a motion to be made before me on June 13th, for judgment in favor of plaintiff on the pleadings as to the first cause of action, and to dismiss the demurrer as to the second cause of action. At the hearing on this motion, defendant's attorneys moved to be permitted to amend their answer by denying that the decree sued upon is a final judgment under the laws of Maryland so as to be entitled to full faith and credit in South Carolina according to the "full faith and credit clause" of the United States Constitution. Over objection of plaintiff's attorneys on June 29, 1931, an order was passed by this Court allowing defendant's attorneys "to amend their Answer by denying the allegations to the effect that the decree sued upon is a final judgment under the laws of Maryland or that defendant is due or liable to the plaintiff for any alleged installments under said decree in this action; and further that defendant be allowed to set up and allege in substance that under the laws and decisions of the Courts of Maryland, the decree for the payment of the monthly sums referred to embraces both claims for alimony for the wife as well as for allowance for the support of the infant child, which is not alimony, and that the Courts of said State have power and authority to change and modify the said allowance at any time, both with respect to future installments as well as to past installments, and that the said decree therefore does not constitute such a final judgment unalterable in its character, as is entitled to full faith and credit in this State, and that the Courts of this State have no power or jurisdiction to enforce the same or to render judgment for any alleged past-due installments against the defendant, and that the defendant is not indebted to the plaintiff in any amount recoverable in this action."
It was agreed by attorneys for plaintiff and defendant that the motion for judgment upon the pleadings should be regarded and treated as applying to the amended answer without other or further service. As to the motion to dismiss the demurrer to the second cause of action, it was agreed that the demurrer should be considered and determined upon its merits, and that, in considering same, the Court should accept as being in evidence before the Court and consider as bearing upon the demurrer all the decisions of the Courts of Maryland and statutes of said state which were or should be cited by counsel on either side. The complaint, the original answer and demurrer, the notice of motion for judgment upon the pleadings and for dismissal of the demurrer, and the order permitting an amendment of the answer, shall be understood to be incorporated in this order, and are made a part hereof.
The pleadings, and position of counsel in relation thereto, present for determination the following questions; the first five pertaining to the first cause of action, and the sixth to the second cause of action and the demurrer thereto:
(1) Is a decree of the Maryland Courts awarding alimony a final decree entitled to full faith and credit in South Carolina?
(2) Is the $100.00 monthly payment referred to in the Maryland decree alimony or something else?
(3) Is alimony, as regarded by the Courts of Maryland, a recoverable debt?
(4) Does a Court of law in South Carolina have power to enforce a decree of a Maryland Court of equity?
(5) Should reasonable attorneys' fees be allowed plaintiff in the event of judgment in her favor?
(6) Is the Maryland decree final as to future payments provided for in said decree?
The decision of 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, is conclusive of the first question. The Supreme Court of Maryland in Rosenberg v. Rosenberg, 152 Md., 50, 135 A., 840, referring to the Sistare case, said: "That was a suit brought in Connecticut for the recovery of overdue and unpaid installments of alimony under a decree of the Supreme Court of the State of New York. By a statute of that State it was provided that a decree for alimony could be modified by the Court at any time, on application of either party to the suit and after the other party had been duly notified. This was construed by the Federal Supreme Court as not authorizing the modification of the decree as to installments of alimony which had accrued prior to the application to have it changed. The Supreme Court said that `every reasonable implication must be resorted to against the existence of such power in the absence of clear language manifesting an intention to confer it,' and it was decided that the suit in Connecticut on the New York decree was maintainable, and that the opposite ruling by the Supreme Court of Connecticut was in conflict with the full faith and credit clause of the Federal Constitution. The following conclusions were stated: `First. That, generally speaking, where a decree is rendered for alimony and is made payable in future installments the right to such 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. * * * Second. That this 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 although no application to annul or modify the decree in respect to alimony had been made prior to the installments becoming due.'" No evidence was offered at the hearing of this case on its merits, and on plaintiff's motion, to prove power or authority of the Maryland Courts to alter one of its decrees as to installments of alimony which have accrued and are in arrears; nor was it shown or contended that any application for a modification of the decree had been made before the institution of the instant proceeding. The finality of the Maryland decree as to the right of the plaintiff to payments fully matured under its provisions must be presumed when there is no proof of any Maryland law to the contrary. The obligation to give full faith and credit to the decree sued on does not permit an assumption that the right which it declared and secured was subject to the unexpressed, unproved, and retroactive power of revocation.
This leads into a consideration of the second question involved. If the $100.00 monthly payments provided for in the Maryland decree are not alimony, then what has been said with reference to the first question has no application in the decision of this case. The Maryland Supreme Court, in Emerson v. Emerson, 120 Md., 590, 87 A., 1033, 1035, defines alimony to be "a maintenance afforded to the wife, where the husband refuses to give it, or where from his improper conduct he compels her to separate from him. It is not a portion of his real estate to be assigned to her in fee simple subject to her control, or to be sold at her pleasure, but a provision for her support to continue during their joint lives, or so long as they live separate."
Counsel for the defendant took the position that the $100.00 per month payments in the decree could not be considered as alimony, for the reason that the decree provides for the payment to the plaintiff by the defendant of the sum of $100.00 per month, as alimony for the support of herself and said infant child, so long as the said plaintiff resides with the said child in the United States, and that, if she returned to her native country, the defendant will be at liberty to ask for a reduction of this alimony. It is admitted by the pleadings that, since the granting of the decree, the plaintiff has resided, and now resides, with her child in the United States of America. The defendant contends that the decree shows that a part of the $100.00 was for the support for the child, and that whatever part is for the support of the child cannot be considered as alimony under the Maryland law, and that the child's part, whatever it is, is subject to modification even as to past-due installments. I think the decree should be construed both as it is made and in relation to the powers of the Maryland Courts in matters of divorce. The case of Emerson v. Emerson, supra, defines these powers as follows: The Court by its decree may determine the marital status of the parties to the cause; it may in an appropriate case award alimony; it may decree as to the property or estate of the wife which she had when married, and also may order and direct as to the guardianship and custody of the children of the parties and impose their support or maintenance upon the husband or wife. The decree provided that the plaintiff in this case should have the guardianship and custody of the infant child of the parties, and I think the decree must be reasonably construed as providing $100.00 per month alimony, as such, for the wife, and imposing upon her the support of the infant child and the consequent relief of the defendant's duty in this regard.
Attorneys for the defendant cited the cases of Dickey v. Dickey, 154 Md., 675, 141 A., 387, 389, 58 A.L.R., 634, and Bushman v. Bushman, 157 Md., 170, 145 A., 488, 490, to uphold their position that alimony, under the laws of Maryland, is not a recoverable debt, for which reason judgment should not be allowed in South Carolina on the decree in any event. Both of the above cases went to the Maryland Supreme Court upon the question as to whether alimony constituted a debt within the meaning of that term in the constitutional prohibition against imprisonment for debt, and as to whether one failing or refusing to pay could be attached for contempt. These two cases are in accord to the effect in so far as constitutional prohibition against imprisonment for debt is concerned, that the obligation to pay alimony in a divorce proceeding is not regarded as a debt but a duty growing out of the marital relation and resting upon a sound public policy, and thus an obligation which may be enforced by attachment of the person for contempt, and the defendant be imprisoned, unless he can purge himself of the contempt by paying or by showing that he has neither the estate nor the ability to pay. In the Bushman case the Supreme Court said: "The demurrer raised the question whether the Court had jurisdiction to enforce the payment of the sums awarded by the decree by an order committing the defendant to prison for contempt of Court. The answer depends upon whether the decree is for alimony, because alimony does not constitute a debt within the meaning of that term in the constitutional prohibition of imprisonment for debt." Constitution of Maryland, Art. 3, § 38.
However, the instant case does not arise upon the question of imprisonment for debt for failure to pay, but upon the question of giving full faith and credit to an alleged final decree of the Court of another state. To this extent, the instant case is somewhat similar to the Maryland case of Rosenberg v. Rosenberg, to which reference has already been had. In that case, the Supreme Court of Maryland said: "As declared in the Barber case (21 How., 582, 16 L.Ed., 226), `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.'"
Therefore, it seems clear to me that for the purpose of the instant action past-due and unpaid alimony must be considered to be a recoverable debt. This conclusion is somewhat strengthened by the use of estate when the Maryland Court said in the Dickey case that a defendant could be imprisoned for failure to pay alimony unless he could purge himself of the contempt by paying or by showing that he has neither the estate nor the ability to pay.
The fourth question, that is, the power of a law Court in South Carolina to enforce a decree of a Maryland Court of equity, evidently arises under the reasoning of the Maryland Supreme Court in Dickey v. Dickey, supra. In that case the Court says:
"Unquestionably an action at law is not maintainable in this State to recover a sum of money decreed to be paid by a Court of equity within the same jurisdiction. As was said in Boyle v. Schindel, 52 Md., 1, 7: 'Courts of equity within their own jurisdiction have full power to issue judicial writs to enforce their decrees with equal economy and despatch as at law.'"
It does not appear to me that the above is applicable to the case under consideration, for the reason that this action is not brought within the jurisdiction of the Maryland Court of equity granting a decree. For this reason, I am convinced a Court of law in South Carolina is not precluded by the authority of the Dickey case from giving full faith and credit to a decree of a Maryland Court of equity.
The matter of attorneys' fees presents a question rather difficult of determination. The case of Winchester v. Winchester, 138 Md., 95, 113 A., 584, 585, 14 A.L.R., 609, is the only case cited with reference thereto, and I am using this case in an effort to reach a proper conclusion as to attorneys' fees. The Winchester case holds that, after a divorce a vinculo matrimonii and an award of permanent alimony, the wife is not entitled to an allowance for services rendered by her counsel in an unsuccessful effort to have the amount of alimony increased. The reasoning by which the conclusion is reached seems to be that the right of a wife to alimony and to an allowance for services rendered by her counsel rests upon the existence of the marital relation, the necessity for such an allowance, and the obligation of the husband to provide necessaries for his wife. The decision says that, at the time the services in question were rendered, the appellee (former wife), was not the wife of the appellant, for the reason that a divorce a vinculo matrimonii had been granted before the services were rendered. In the instant case, the plaintiff is still the wife of the defendant; she having been divorced from him a mensa et thoro. The following language appears in the Winchester case: "In 1 R.C.L., 916, § 65, Stillman v. Stillman, 99 Ill., 196, 39 Am. Rep., 21, is cited in support of the statement that — `If the husband subsequently makes a motion for the purpose of securing a reduction in the amount of alimony awarded the wife, it is proper to make an allowance as compensation for her attorney in resisting the same.'"
In the instant case, the plaintiff is not resisting a motion on the part of the defendant to secure a reduction in the amount of alimony; but it seems to me that she is doing more than this, in that she is bringing an action to recover alimony which the defendant has failed to pay, and I am convinced that under the rule of reason she should be allowed reasonable attorneys' fees in the event her effort is successful. Otherwise, if one were allowed a small monthly sum as alimony, and the one against whom it was allowed should month by month refuse to pay it, the major portion of that which was intended as alimony for the wife might be consumed in attorneys' fees in actions to enforce the monthly payment. I think the sum of $60.00 is a reasonable fee for plaintiff's attorneys in this case.
It now becomes necessary to dispose of the demurrer to the second cause of action. The statute law of Maryland, the case of Emerson v. Emerson, supra, and numerous other decisions cited to the Court clearly show that in Maryland Courts of equity have power to modify provisions as to alimony in decrees of divorce a mensa or a vinculo and retain continuing jurisdiction over such decrees as to future payments of alimony. For this reason the decree is not a final one in respect to the future payments of alimony.
In accordance with the above it is ordered, adjudged, and decreed that as to the first cause of action the plaintiff have the judgment of this Court against the defendant in the sum of $418.83 and costs, which includes amounts due under the decree for the period January 1, 1931, through April 1, 1931, with 6 per cent. interest on the amounts since their due date and $60.00 attorney's fees.
It is further ordered, adjudged, and decreed that the defendant's demurrer to the second cause of action be, and the same is hereby, sustained.
The complaint asked for 7 per cent. interest on past-due installments from the date of their maturity, but 6 per cent. was allowed, for the reason that the Maryland Constitution fixes 6 per cent. as the legal rate. I do not think the defendant should be penalized or rewarded because of the fact that he is not now within the jurisdiction of the Maryland Courts.
Messrs. J.B. Atkinson, Bomar Osborne for appellant, cite: Court of Equity may modify the provisions of decree as to alimony: 120 Md., 584; 154 Md., 675; 152 Md., 49. Support of children and alimony may be modified: 157 Md., 166; 158 Md., 109. Attorney's fees never allowed except on special contracts: 96 S.C. 357. Right to alimony not vested right but subject to power of Courts to modify: 181 U.S. 183; 45 L.Ed., 810.
Messrs. F.B. Gary, Jr., J.D. Kerr, Jr., and R.W. Baldwin, Jr., for respondent, cite: One state is bound by alimony decree of another state as to installments already accrued: 218 U.S. 1; 52 Md., 50; 47 App. D.C., 384; 86 N.J.L., 69; 19 C.J., 364. Reduction of alimony can only apply to future installments: 145 Md., 340; 120 Md., 584; 13 App. D.C., 334. Judgment cannot be attacked collaterally except for lack of jurisdiction or fraud: 122 S.C. 323; 144 S.C. 83. Maintenance and alimony synonymous: 187 Pac., 609; 37 Idaho, 597. Fee for wife's attorney should be paid by husband in case for alimony: 158 Md., 204; 138 Md., 97; 1 R.C.L., 914; 99 Ill., 196; 123 Ill. App. 553.
February 1, 1932. The opinion of the Court was delivered by
It is our opinion that the well-prepared order of his Honor, County Judge Foster, in this case is correct. Accordingly, the exceptions thereto are overruled, and the order is affirmed.
MESSRS. JUSTICES STABLER, CARTER and BONHAM and MR. E.C. DENNIS, Circuit Judge, concur.
MR. JUSTICE COTHRAN did not participate on account of illness.