Summary
In McPherson, thirteen years after a final divorce decree ordering the father to pay child support, the father filed a motion in the juvenile court for an order reducing the child support that had accrued over the years.
Summary of this case from Thomas v. ThomasOpinion
No. 31879
Decided February 23, 1950.
Divorce — Award for support of minor child — Due and unpaid installments may not be modified.
Due and unpaid installments allowed by the court for the support of a minor child may not be modified.
CERTIFIED by the Court of Appeals for Miami county.
On November 8, 1935, the Court of Common Pleas of Miami County, Ohio, entered a decree of divorce in favor of appellee against appellant, awarding the custody of their minor child to the mother and ordering the father to pay the sum of five dollars per week to the mother as support for the child until further order of the court.
On December 30, 1935, the Court of Common Pleas of Miami County, Ohio, certified the remainder of the case as follows:
"* * * I hereby certify the custody and support of Alan McPherson, minor child of the parties herein, to the Juvenile Court of Miami County, Ohio, for such further proceedings as are authorized by law."
On March 11, 1948, the father filed a motion in the Juvenile Court of Miami County, Ohio, for an order reducing the support money accrued and unpaid. The reasons assigned in such motion were:
(1) An agreement made at the time of the entry of the decree of divorce;
(2) Failure of the mother properly to care for the child;
(3) While the mother and child were residents of Parkersburg, Wood County, West Virginia, the Wood County, West Virginia, court deprived the mother of the custody of the child and awarded the custody of such child to the child's maternal grandfather who voluntarily accepted such custody and agreed to adopt such child;
(4) The mother had not cared for, supported or maintained such child, the care and support being furnished by the maternal grandfather;
(5) The mother had made no claim on the father under the decree of divorce until June 11, 1947, and the mother's claim was barred by laches;
(6) On June 11, 1947, the mother commenced an action against the father in the Circuit Court for the Fifteenth Judicial Circuit of the state of Florida, in and for Broward county, Florida, wherein she sought to have the decree of the Court of Common Pleas of Miami County, Ohio, made the decree of the Florida court and sought to recover judgment for the accrued support.
On April 24, 1948, the mother filed a motion in the Juvenile Court of Miami County, Ohio, to strike from its files the motion of March 11, 1948, filed by the father. It was recited in the mother's motion:
"* * * that the files and records of the Common Pleas Court of Miami County, Ohio, disclose no further order of said court, altering, changing, increasing or reducing the amount and allowance thereinbefore made; that said order made on November 8, 1935, by the Common Pleas Court of Miami County, Ohio, has been in full force and effect ever since that date and up to and including this date, and particularly including the date of June 11, 1947, on which date Mary Lee Tackett [the mother], then and there as plaintiff, commenced an action in chancery in cause No. 12761 in the Circuit Court of the Fifteenth Judicial Circuit, in and for Broward county, Florida, to enforce the judgment and order thereinbefore made by the Common Pleas Court of Miami County, Ohio, on November 8, 1935; that said litigation has not been disposed of and therefore this court has no jurisdiction with reference to the amount of support due and owing from Ronald McPherson [the father] from November 8, 1935, up to and including June 11, 1947, and for this reason his motion should be stricken from the files."
It was further alleged in the mother's motion:
"* * * relying upon the judgment and decree of the Common Pleas Court of Miami County, Ohio, in cause No. 27697, [she] duly caused to be certified and thereby transferred this judgment to the Circuit Court of the Fifteenth Judicial Circuit, in and for Broward county, Florida."
It was further alleged in such motion:
"That forthwith upon the said Mary Lee Tackett's commencing her action in the Circuit Court of the Fifteenth Judicial Circuit, in and for Broward county, Florida, the defendant properly entered his appearance in said cause by way of a motion to dismiss, which motion was thereafter heard and decided by the Circuit Court of the Fifteenth Judicial Circuit, in and for Broward county, Florida, and that said motion was then and there by said Circuit Court of the Fifteenth Judicial Circuit, in and for Broward county, Florida, denied; that the said Ronald McPherson, by his counsel, having then and there excepted to the rulings, findings and judgments of said Circuit Court of the Fifteenth Judicial Circuit, in and for Broward county, Florida, appealed said decision to the Supreme Court of the state of Florida; that thereafter on February 3, 1948, the cause was submitted to and decided by the Supreme Court of the state of Florida, and that said petition for a writ of certiorari was then and there by said Supreme Court of the state of Florida denied.
"That thereafter the said Ronald McPherson filed his answer in the Circuit Court of the Fifteenth Judicial Circuit, in and for Broward county, Florida, and that this action is now pending on the bill of complaint, the defendant's answer to said complaint, and the motion of the plaintiff, mary Lee Tackett, to strike certain allegations contained in said defendant Ronald McPherson's answer, and that by reason of such lis pendens this court has no jurisdiction to entertain the motion filed to amend, reduce, alter or change the judgment and decree of the Common Pleas Court of Miami County, Ohio, entered on November 8, 1935, but that said action is now pending in said Circuit Court of the Fifteenth Judicial Circuit, in and for Broward county, Florida, on a bill to establish foreign decree for support of minor child in cause No. 12761 of the records of said court."
It was further alleged in such motion:
"That by the order of the Circuit Court of the Fifteenth Judicial Circuit, in and for Broward county, Florida, which order was affirmed by the Supreme Court of Florida, as hereinabove set forth, and which order denied the motion of defendant Ronald McPherson to dismiss the bill of complaint of plaintiff Mary Lee Tackett, it is judicially determined that the Circuit Court of the Fifteenth Judicial Circuit, in and for Broward county, Florida, has jurisdiction of such matter and of the parties to the suit therein pending, and therefore this court has no jurisdiction of this cause by reason of the pending action in the state of Florida."
On October 25, 1948, the Juvenile Court of Miami County, Ohio, entered the following order:
"It appearing to the court that prior to the submission of this cause, the court and counsel, in pretrial conference and in order to expedite the final disposition of the questions presented, agreed that the effect of the motion to strike filed on behalf of Mary Lee Tackett was to test the legal sufficiency of the motion of Ronald A. McPherson, and that the grounds for relief stated in the motion of McPherson were admitted by the motion to strike for the purposes of said motion.
"It further appearing to the court that this cause was heard in conformity with said agreement and upon the briefs and arguments of counsel and without taking any evidence, and that the judgment entry filed herein on October 11, 1948, does not clearly set forth the findings and judgment of the court, it is ordered that said judgment should be, and the same hereby is, vacated, set aside and held for naught.
"The court coming now to make the findings and enter the judgment which should have been made and entered herein, the court finds that this matter was submitted to the court upon the motion of Ronald A. McPherson to reduce the support money accrued and unpaid to Mary Lee Tackett, the motion of said Mary Lee Tackett to strike said motion of Ronald A. McPherson from the files, the briefs and arguments of counsel; and upon consideration thereof the court finds that the motion of Ronald A. McPherson to reduce is insufficient in law, is not well taken and should be overruled, that this court has jurisdiction to determine the questions presented by the motion of Ronald A. McPherson and that the motion of Ronald A. McPherson being insufficient in law the motion of Mary Lee Tackett to strike same is well taken and should be sustained.
"It is, therefore, ordered, adjudged and decreed that the motion of Ronald A. McPherson be, and the same hereby is, overruled, and that said motion should be and hereby is, stricken from the files of the court."
The cause was thereupon appealed to the Court of Appeals for Miami County, Ohio, which court affirmed the orders and judgment of the Juvenile Court.
The Court of Appeals then made an order certifying the case to this court on the ground of conflict with judgments of the Courts of Appeals of the Sixth and Ninth Appellate Districts of Ohio.
Mr. Michael E. Norris and Miss Marie C. Schmuecker, for appellee.
Mr. Richard H. LeFevre, for appellant.
Appellant presents the following question as involved in the instant case:
"Is the award for the support of a minor child made upon the granting of a divorce and payable in weekly installments, a final judgment which is not subject to modification as to accrued and unpaid installments?"
The Juvenile Court refused relief and the Court of Appeals affirmed.
We are of the opinion that the judgment of the Court of Appeals should be affirmed under the doctrine enunciated in the case of Armstrong v. Armstrong, 117 Ohio St. 558, 160 N.E. 34, the first paragraph of the syllabus of which reads:
"A judgment for alimony payable in installments rendered upon entering a decree for divorce constitutes a final judgment within the full faith and credit clause of the federal Constitution so far as accrued installments are concerned, no modification of the decree having been made prior thereto, unless it appear from the law of the jurisdiction wherein the decree was granted that the power of modification expressly retained extends to accrued as well as to future installments of alimony."
There was no modification of the decree made or sought in the instant case prior to the institution of the Florida proceedings. The power of modification was not expressly retained as to accrued installments.
The Armstrong case is annotated in 57 A.L.R., 1113, wherein it is said:
"Thus, the reported case ( Armstrong v. Armstrong, ante, 1108) applies the rule announced by the Supreme Court of the United States in Sistare v. Sistare (1910), 218 U.S. 1, 54 L. Ed., 905, 28 L.R.A. (N.S.), 1068, 30 S. Ct., 682, 20 Ann. Cas., 1061, discussed in the annotation in 41 A.L.R. at page 1421. The court states in the syllabus that the rule is that a judgment for alimony payable in installments, rendered upon entering a decree for divorce, constitutes a final judgment within the full faith and credit clause of the federal Constitution so far as accrued installments are concerned, no modification of the decree having been made prior thereto, unless it appear from the law of the jurisdiction wherein the decree was granted that the power of modification expressly retained extends to accrued as well as to future installments of alimony."
In the annotation in 94 A.L.R. at page 332, it is said:
"The rule in a majority of the states is that installments of alimony become vested when they become due, and the court has no power to modify the decree as to them."
On page 333 of the same volume it is said:
"In a few states the rule is that the court has power to modify decrees as to past-due installments of alimony, as well as to installments payable in the future."
In the annotation in 157 A.L.R., at page 175, it is said:
"Where under the law of the state where the decree for alimony is rendered, the power of the court to modify the decree does not extend to installments that have already accrued, as where the power is phrased in general terms or where it specifically refers to installments to accrue in the future, and the decree is not modified before the accrual of the installments, it is entitled to full faith and credit at the forum as to such accrued installments. This rule is supported by the following cases decided since the publication of the original annotation." (Then follows a list of cases throughout the United States.)
It is stated also in 157 A.L.R., at page 173:
"The decree of a sister state for alimony payable in installments was, as to accrued installments, held entitled to full faith and credit in the courts of another state under the described circumstances in the following cases, in most of them without particular reference to or inquiry into the question whether the alimony decree was subject to modification as to accrued installments, and apparently under the tacit assumption that it was not so subject."
In the recent work of Nelson on Divorce and Annulment, volume 3, page 537, Section 33.52, it is said:
"The enforcement of an alimony or maintenance decree as to future installments stands upon a different footing than the enforcement of such a decree as to past-due installments, since the decree is a continuing judgment as to future installments, while it is an ordinary judgment for debt or money as to those which are past due."
In the same volume it is said at page 540, Section 33.53:
"And, generally speaking, an action may be brought on a sister-state alimony or support decree for a money judgment for the amount decreed to be paid, or, if the decree provides for payment in installments, for the amount of the installments which are accrued and due."
In Restatement of Conflict of Laws, 518, Section 435, under "Comment," it is said:
"A judgment or decree for alimony, rendered in another state, will be enforced only to the amount already accrued and due and only if the court which rendered the judgment has no power to modify the amount already accrued * * *."
In the same chapter ibid., at page 553, Section 464, it is said:
"A valid judgment for alimony granted in one state can be enforced in another state to the extent of the amount already due and unpaid on the decree, and not subject to reduction."
We have no desire to pass on that part of the case now under the jurisdiction of the Florida court. We mention these citations from Restatement of Conflict of Laws for the reason that the record in this case shows that only accrued and unpaid installments were made the subject of the Florida litigation.
Appellant argues the following subsidiary questions:
(1) Laches;
(2) An agreement made prior to the entering of the decree;
(3) Jurisdiction of the Juvenile Court.
"The defense of laches is peculiar to courts of equity and does not apply in actions at law; but it has been entertained at law in a state where equity is administered through common-law forms." 30 Corpus Juris Secundum, 523, Section 113.
In the same volume it is said at page 525, Section 113:
"Laches is based on the maxims, Nothing can call equity into activity but conscience, good faith, and diligence, Equity aids the vigilant, not those who slumber on their rights, He who seeks equity must do equity, and, He who comes into equity must come with clean hands."
In this state an action for divorce and alimony is statutory and not equitable. But even if laches applied in such a case as the instant one, the record discloses that respondent did not ask for the modification of the order allowing support until nearly a year after the mother had caused the judgment to be certified and transferred to the Florida court where appellant had entered his appearance.
As to the agreement: It needs no citation of authority to show that such an agreement, if any, was merged in the judgment entry which entry cannot at this late date be disputed.
As to jurisdiction: While the Juvenile Court did hold that it had jurisdiction, it is not clear from the entry that this holding was meant to apply to the jurisdiction to modify the past due and unpaid installments or to future installments. We hold that the court was without jurisdiction to modify past due and accrued installments. No claim was made in respect of future installments or the court's right to modify same.
As we are of the opinion that the Juvenile Court in this case had no jurisdiction to reduce or otherwise modify the allowance of accrued and unpaid installments for the support of the minor child, the judgment of the Court of Appeals should be, and hereby is, affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART and STEWART, JJ., concur.
ZIMMERMAN and TAFT, JJ., dissent.
In my opinion the judgment of the Court of Appeals should be reversed and the cause remanded to the trial court for a hearing and determination on the issues raised by defendant's motion for modification.
We are not dealing here with an allowance of alimony to the wife alone, but with an award for the support of a minor child. A marked distinction exists between the two. See 17 American Jurisprudence, 531, Section 695, citing Pretzinger v. Pretzinger, 45 Ohio St. 452, 15 N.E. 471, 4 Am. St. Rep., 542.
I still hold to the view expressed in my dissenting opinion in the case of Tullis v. Tullis, 138 Ohio St. 187, at page 200, 34 N.E.2d 212, 218, where the following statement appears:
"In this modern day the `best interest' of the child is of primary importance (Section 8033, General Code), and it has been held by this court that an order or judgment as to the custody or support of minor children is a continuing one, subject to alteration under varying conditions. No reservation, of the power to modify, in the original order is necessary. Neil v. Neil, 38 Ohio St. 558; Rogers v. Rogers, 51 Ohio St. 1, 36 N.E. 310. And this is so, regardless of an agreement between the parents judicially approved. Corbett v. Corbett, supra ( 123 Ohio St. 76, 174 N.E. 10). From these pronouncements it should logically follow that the proper court has inherent power to modify in any just or reasonable manner, a former decree embracing the support of children."
Dissents for the reasons stated in the dissenting opinion by Zimmerman, J., except to the extent that they refer to an instance, unlike the instant case, involving a judicially approved agreement.