Albertv.Albert

Court of Appeals of GeorgiaJun 20, 1952
86 Ga. App. 560 (Ga. Ct. App. 1952)

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34030.

DECIDED JUNE 20, 1952. REHEARING DENIED JULY 16, 1952.

Suit on foreign judgment; from Muscogee Superior Court — Judge Fort. February 12, 1952.

Swift, Pease, Davidson Chapman, Tom B. Slade, Doyle, Tomlin Doyle, for plaintiff in error.

Hatcher, Smith Stubbs, J. Willard Register, contra.


Where the petition and its attached exhibits show that the plaintiff in 1925 obtained a decree of divorce and alimony, to be paid in weekly instalments for the support and maintenance of the minor children of the parties, in a court of Ohio having personal jurisdiction of the parties, that the youngest of said children became of age in 1941, and that the plaintiff obtained another judgment in the same Ohio court against the defendant in 1949, reducing the due and unpaid instalments of alimony to a lump sum, in which latter proceeding the defendant was served by publication and by mailing him a copy of the published notice and of the petition, the Ohio judgment of 1949 was entitled to the same full faith and credit in the courts of this State as it would have in the courts of Ohio, where the petition and its attached exhibits do not show that the judgment was invalid or that the suit brought upon it was barred by the statute of limitations of actions brought in this State on foreign judgments. However, the presumption of the validity of a foreign judgment may be overcome by evidence as to the law of the State in which the judgment was obtained, showing that the judgment sued on was not entitled to credit in the courts of the State where it was rendered, and so was not entitled to full faith and credit in this State; but the burden would be upon the defendant to plead and prove such matter of defense, where such matter does not appear in the petition and the exhibits attached thereto. The court erred in sustaining the general demurrer to the petition and dismissing the same.


DECIDED JUNE 20, 1952 — REHEARING DENIED JULY 16, 1952.


Caroline Albert brought a suit in Muscogee Superior Court against Herman Albert, also known as Herman Abdalla, on a judgment which she alleged she had recovered against the defendant in the Court of Common Pleas, Hamilton County, Ohio, on November 29, 1949, for $15,437.20 and court costs of $29.77. A copy of the Ohio judgment, together with the petition filed in said case, return of service, and all proceedings of record in connection therewith, which were authenticated as provided by law, were attached to and made a part of the petition. The amount of the Ohio judgment was alleged to be due and unpaid.

The petition to the Court of Common Pleas of Hamilton County, Ohio, as set out in the exhibit, was filed on February 15, 1949, and the case was stated as that of "Caroline Albert, 911 Thornton Street, Dayton, Kentucky, Plaintiff, vs. Herman Albert, also known as Herman Abdalla, 1218 Broadway, Columbus, Georgia, Defendant. A-114570." The petition alleged in substance: that the parties were married in Hamilton County, Ohio, on May 22, 1915; that three children were born as the issue of this marriage, the youngest child having been born on June 8, 1920; that Caroline Albert filed an action for divorce and for support and maintenance of herself and said minor children on March 11, 1924, in the Division of Domestic Relations, Court of Common Pleas, Hamilton County, Ohio, number 189544, against Herman Albert; that personal service of the divorce action was made upon Herman Albert; that a judgment of divorce was entered in said court on June 18, 1925, said decree reciting that $10 per week for the maintenance and support of the minor children of the parties was granted until further order of said court; that the defendant paid $165 during the year 1925, but made no further payments thereafter; that the said judgment of divorce and for support and maintenance of the minor children of the parties has never been disturbed by said court or by any other court; that the youngest of said minor children attained his majority on June 8, 1941; and that, by virtue of the provision in the decree for payment of $10 per week for the maintenance and support of said minor children from April 11, 1925, until further order of the court, there is due from the defendant $15,437.20, including principal and interest.

Service of this petition on Herman Albert was made by publication of notice and by mailing him a copy of the published notice and the petition.

The judgment of November 29, 1949, by the Court of Common Pleas, Hamilton County, Ohio, was as follows: "This matter came on for hearing on October 5, 1949, on the petition of Caroline Albert, plaintiff herein, to reduce to a lump sum certain defaulted periodic payments for the support and maintenance of minor children of the parties required to be paid by the defendant herein by virtue of a decree of divorce entered June 18, 1925, in this court, Division of Domestic Relations, in Cause No. 189544, wherein Caroline Albert was plaintiff and Herman Albert, also known as Herman Abdalla, defendant, and the defendant herein being in default for answer or demurrer;

"The Court do find that the defendant herein was served personally in said Cause No. 189544 and that this Court has continuing jurisdiction over the parties and of the subject matter; that defendant herein was served by publication as required by law in this action and such service is hereby approved; that the defendant was at one time represented by counsel in this action, who requested and received notice concerning this case being set for trial, but which attorney has since withdrawn; that registered mail notices were sent defendant notifying him of various settings of the case, one of which was received and one of which was returned marked `Unclaimed.'

"The Court do further find that by order in said cause, payments of ten ($10.00) dollars per week were to be made by defendant to the Cashier of the Division of Domestic Relations of this Honorable Court, commencing Saturday, April 11, 1925, for the support of the minor children of said parties; that in conformity with said order of this Court in said cause a total of one hundred and eighty ($180.00) dollars was paid by defendant during the year 1925, but that no further payments were made by him; that the youngest child of said parties, William Albert, attained his majority June 8, 1941.

"The court do further find that said former order made in said cause No. 189544 has never been changed, altered or modified."

The judgment then recited that the court found a principal sum of $8220 due from the defendant to the plaintiff, which with interest amounted to $16,404.46, but since the petition sought recovery of only $15,437.20, the difference between the latter two amounts was recited to have been waived by the plaintiff. The final paragraph stated: "It is therefore considered, ordered and decreed that the plaintiff Caroline Albert recover of the defendant Herman Albert also known as Herman Abdalla the sum of fifteen thousand four hundred thirty-seven 20/100 ($15,437.20) dollars and costs of this action taxed at $29.77, for which judgment is granted."

The defendant demurred to the present petition on the ground that it set forth no cause of action because it appeared that the Ohio court did not have jurisdiction of the person of the defendant, as he had not been served personally and had never had his day in court; because the judgment was "without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States of America which provides in part, `nor shall any State deprive any person of life, liberty or property, without due process of law'"; and because it appeared that the present action was barred by the statute of limitations of this State, in that the petition had been filed more than five years after the youngest child of the parties became twenty-one years of age on June 8, 1941, in that the Ohio suit of 1949 had been filed more than five years after the divorce and support judgment of 1925, and in that the Ohio suit of 1949, in which the judgment sued on was rendered, had been filed more than five years after the youngest child of the parties came of age and did not have the effect of reviving the judgment of 1925.

The court sustained the demurrers and dismissed the petition, and the plaintiff excepted to that judgment.


"Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effects thereof." Constitution of the United States, article 4, section 1; Code, § 1-401. "The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the attestation is in proper form. Such acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken." 28 U.S.C.A. § 1738. Also see Code § 38-627. "The presumption in favor of the jurisdiction of a court of general jurisdiction is conclusive and its judgment cannot be collaterally attacked where no want of jurisdiction is apparent of record. Whenever the record of such a court is merely silent upon any particular matter, it will be presumed, notwithstanding such silence, that whatever ought to have been done was not only done, but that it was rightly done. So, where the judgment contains recitals as to the jurisdictional facts, these are deemed to import absolute verity unless contradicted by other portions of the record." Creaden v. Krogh, 75 Ga. App. 675, 678 ( 44 S.E.2d, 136). "A judgment of a sister State, authenticated according to the Act of Congress, is conclusive on the defendant as to all questions that he could have been heard on in the court when and before the judgment was rendered. But the judgment does not preclude the defendant from pleading any special matter in avoidance of the judgment, such as fraud in its rendition; want of notice, etc." Sharman v. Morton, 31 Ga. 34 (2, 3). "Where the lack of jurisdiction in the court of another State does not appear on the face of the record before this court, the jurisdiction of such foreign court will be presumed by the courts of this State." Heakes v. Heakes, 157 Ga. 863 (3) ( 122 S.E. 777).

The petition and the exhibits thereto show that the plaintiff obtained a decree in Ohio, in 1925, dissolving her marriage to the defendant and awarding her $10 per week for the maintenance of the children born of the marriage, until further order of the court, and that personal service of the divorce suit was made upon the defendant. The youngest child became 21 years of age in 1941, and the last payment became due in that year. See Thiessen v. Moore, 105 Ohio St. 401 ( 137 N.E. 906), holding that the courts of that State are without power to decree the maintenance of minor children beyond the date when such children arrive at their majority. By the terms of the order itself, granting support for the minor children, such support would not be continued after the time the children reached the age of 21.

In February of 1949, the plaintiff filed a petition, in the same court which had granted the decree for divorce and alimony, for a judgment reducing the unpaid instalments due under the 1925 divorce and alimony decree to a lump sum. The defendant was served by publication and by mailing a copy of the published notice and the petition to him at his address in Columbus, Georgia. This suit was not docketed under the same number as the original divorce suit, and the judgment therein, for $15,437.20 and $29.77 as costs of court, entered on November 29, 1949, is the basis of the present suit, which was filed in Muscogee Superior Court three months after the rendition of the Ohio judgment reducing the arrears of maintenance or alimony due and unpaid to a lump sum.

The question raised by these facts, taken as true on demurrer, is whether the Ohio judgment of 1949, upon which the present suit is based, is one which is entitled to full faith and credit under the Constitution of the United States and the provisions of the act of Congress above quoted. In Griffin v. Griffin, 327 U.S. 220 ( 66 Sup. Ct. 556, 90 L. ed. 635), it was held that a New York judgment for accrued and unpaid instalments of alimony, which was entered in proceedings of which the defendant was given no notice whatever, although he had been served in the original divorce action, was not required to be recognized in the District of Columbia, where the defendant resided at the time the judgment for arrears was entered; but it was said in that case: "It is plain in any case that a judgment in personam directing execution to issue against petitioner, and thus purporting to cut off all available defenses, could not be rendered on any theory of the state's power over him, without some form of notice by personal or substituted service." ( 90 L. ed. 640; emphasis added.) In a footnote it was added that, "We do not share in the apprehension that the cost of providing such notice as will satisfy due process requirements each time a proceeding is begun to docket a judgment for an accrued instalment of alimony will be incommensurately high. In various statutes New York has been able to provide for notice by mail, which is reasonably adapted to provide actual notice and inexpensive in its operation."

Courts of other States have recognized the jurisdiction of a court to render a judgment for arrearage of alimony without personal service, but with constructive service, upon a defendant of whom the court had jurisdiction in the original divorce suit. See Annotation, 168 A.L.R. 232, 234, and cases there cited. "A court retains jurisdiction of a divorce proceeding at all times to enforce a decree with respect to the payment of alimony." 27 C. J. S. 1032, Divorce, § 254. And in Creaden v. Krogh, 75 Ga. App. 675, supra, and Illinois judgment for accrued unpaid alimony instalments was enforced, although it did not appear that any notice had been given to the defendant or that he had appeared in the proceeding. In that case, however, the action could have been brought upon the instalments of alimony due under the original decree, as it was rendered within five years from the time the suit was filed in this State, and the instalments had accrued within that period.

Code § 3-701 provides that, "All suits upon judgments obtained out of this State shall be brought within five years after such judgments shall have been obtained." This statute does not begin to run against monthly alimony payments provided in a foreign judgment until maturity and failure to pay according to the requirements of the judgment. McLendon v. McLendon, 66 Ga. App. 156 ( 17 S.E.2d 252); Heakes v. Heakes, 157 Ga. 863, supra. The point raised by the defendant's demurrer with regard to this statute of limitations is that a suit in this State on the Ohio divorce decree of 1925, and on the instalments of alimony maturing according to the terms of that decree until the youngest child provided for in the decree attained his majority, in 1941, would have been barred by the statute after 1946, and the present action was brought in 1950. The present action, however, was brought not on the 1925 decree and on the instalments due thereunder, but on a judgment rendered in 1949, in which the unpaid instalments were reduced to a lump sum, and it was brought within the five-year period from the date of that judgment.

The 1949 judgment sued on, being properly authenticated and rendered by a court of a sister State, is to be given the same full faith and credit in the courts of this State as it would have in the courts of the State where it was rendered, according to the Constitution of the United States and the act of Congress above quoted. The petition and its attached exhibits do not show that the judgment sued on would have been ineffective in Ohio, where it was rendered.

Ordinarily, a decree for alimony payable in instalments is not a judgment within the meaning of the statute fixing a time when judgments shall become dormant unless an execution be issued thereon. Cleveland v. Cleveland, 197 Ga. 746 ( 30 S.E.2d 605); Morrow v. Wainwright, 177 Ga. 100 ( 169 S.E. 310); Fischer v. Fischer, 164 Ga. 81 ( 137 S.E. 821). In the last-named case, Ohio law is cited to the same effect. But if the original decree of 1925 had become dormant or unenforceable under the law of the State where it was rendered, this would have to be raised as matter of defense, as it does not appear from the plaintiff's pleadings.

The presumption of the validity of a foreign judgment may be overcome by evidence as to the law of the State in which the judgment was obtained, showing that the judgment sued on was not entitled to credit in the courts of the State where it was rendered, and so was not entitled to full faith and credit in this State. Frank v. Wolf, 17 Ga. App. 468 ( 87 S.E. 697); Underwood v. Underwood, 142 Ga. 441 ( 83 S.E. 208, 54 L.R.A. 1915B, 674). In the present case, the Ohio judgment as set out in the petition does not appear to be invalid; and, if it should be a judgment which would be treated as ineffective by the courts of Ohio, it is for the defendant to overcome the judgment's prima facie validity, by pleading and proving the applicable law of Ohio. The court erred in sustaining the demurrer to the petition.

Pursuant to the act of 1945 (Ga. L. 1945, p. 232; Code Ann., § 24-3501), requiring that the full court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole.

Judgment reversed. Gardner, P.J., Townsend, Worrill and Carlisle, JJ., concur. Felton, J., dissents.


I agree that ordinarily, in an action such as this, our court will presume that the judgment in this case was legally and properly rendered so as to be binding on the defendant in the State where rendered insofar as the issues raised in the action filed are concerned. In order to do so in this case, it is necessary to presume that the law of Ohio is that the right to demand and receive 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 instalments ordered to be paid, even though no application to annul or modify the decree in respect to alimony had been made prior to the instalments becoming due. Sistare v. Sistare, 218 U.S. 1, 17 ( 30 Sup. Ct. 682, 54 L. ed. 905, 28 L.R.A. (N.S.) 1068). This presumption obtains only with respect to the issues and rights normally arising out of the pending case, and does not obtain with respect to extraneous issues injected by actions or contentions of the plaintiff. If the plaintiff in this case had applied for a final judgment before 1941, when the last instalment fell due, or within a reasonable time thereafter, I would agree that the mailing of notice was sufficient. The first service put the defendant on notice that the case was in court, and that at any proper time a judgment could be entered to enforce any right the plaintiff had under that suit after notice. However, the original service did not put the defendant on notice that the plaintiff would extend the time when a statute of limitations should have begun to run by allowing the suit to become stale and by obtaining a judgment about eight years from the time when it should have been rendered. The right of the plaintiff to whatever rights he had under limitation statutes was not in the original case; and, when the question was injected by the plaintiff, her action became one in which a new and substantial right of the defendant was involved, and the injection of the new question entitled the defendant to personal service as notice of the action. The question here presented is analogous to the revival of a dormant judgment, in which case personal service or appearance is necessary to give the rendering court jurisdiction. Owens v. Henry, 161 U.S. 642 ( 16 Sup. Ct. 693). It would seem under the ruling in the Owens case that, if we presume that the Ohio law authorized the action by the court upon mail notice, it would be insufficient under the due-process clause.