Opinion
2-25-1954
WORTHLEY v. WORTHLEY. L. A. 22889.
Kenny & Morris and Robert W. Kenny, Los Angeles, for appellant. Slane, Mantalica & Davis and Frank Barclay, Los Angeles, for respondent.
WORTHLEY
v.
WORTHLEY.
Feb. 25, 1954.
Rehearing Granted March 25, 1954.
Prior opinion, 258 P.2d 588.
Kenny & Morris and Robert W. Kenny, Los Angeles, for appellant.
Slane, Mantalica & Davis and Frank Barclay, Los Angeles, for respondent.
SHENK, Justice.
This is an appeal from a judgment which barred the plaintiff from proceeding in an action to enforce a New Jersey separate maintenance decree.
The plaintiff and the defendant were married in New Jersey on March 6, 1943. They separated in November of 1946. On May 19, 1947, the New Jersey Court of Chancery entered a decree which ordered the defendant to pay to the plaintiff as separate maintenance the sum of $9 a week, and that payments should continue until otherwise ordered by that court. The defendant appeared and was represented by counsel in the New Jersey proceeding. About ten months later the defendant left New Jersey. He arrived in Reno, Nevada, on March 18, 1948, and shortly thereafter commenced an action for a divorce against the plaintiff. The plaintiff was served in New Jersey with a copy of the summons and complaint in the Nevada action, but she did not answer the complaint or make any appearance in that proceeding. On June 7, 1948, the Nevada Second Judicial District Court entered a decree of divorce in favor of the defendant dissolving his marriage to the plaintiff. The Nevada decree contained no provision for alimony. Until the Nevada divorce decree was entered the defendant had complied with the New Jersey separate maintenance decree. After the Nevada decree was entered he ceased paying to the plaintiff $9 a week provided for in the New Jersey decree. After the Nevada decree was ordered the defendant unsuccessfully sought employment in his specialized occupation in that state and moved to Los Angeles where he has since resided.
On November 16, 1951, the plaintiff commenced an action in the Los Angeles Superior Court to enforce the New Jersey separate maintenance decree. In her complaint she alleged that the defendant had neglected to pay $1,089 which was due and payable under the New Jersey decree; that she and the defendant were husband and wife, and that he refused to provide for her in accordance with that decree or otherwise. She asked that the New Jersey decree be established as a foreign judgment; that the court adjudge that the defendant owed $1,089 to the plaintiff; that the defendant be ordered to pay $9 a week until further order of the court; and that the court grant her such other relief as would seem just and equitable.
The defendant answered the complaint. He admitted the existence of the New Jersey decree and that he had complied with its terms until June 7, 1948. He pleaded as an affirmative defense that the Nevada divorce decree of June 7, 1968, had terminated his obligations under the prior New Jersey decree.
At the trial the defendant moved that his special defense be tried first under section 597 of the Code of Civil Procedure. That section provides: 'When the answer pleads that the action is barred by * * * a prior judgment * * * or sets up any other defense not involving the merits of the plaintiff's cause of action but constituting a bar or ground of abatement to the prosecution thereof, the court may, upon the motion of either party, proceed to the trial of such special defense or defenses before the trial of any other issue in the case, and if the decision of the court, or the verdict of the jury upon any special defense so tried * * * is in favor of the defendant pleading the same, judgment for such defendant shall thereupon be entered and no trial of other issues in the action shall be had unless such judgment shall be reversed on appeal or otherwise set aside or vacated * * *.' The trial court granted the defendant's motion and heard his special defense first. Testimony was taken and arguments were made by counsel for both sides. The trial court ruled that the Nevada decree was valid and that it constituted a bar to an action on the New Jersey separate maintenance decree. The court ordered that the 'plaintiff is barred from further prosecution * * * in this action * * *.'
The question to be determined is the effect of the Nevada divorce decree upon the prior New Jersey decree for separate maintenance. Both parties rely primarily upon California law to answer the question. The disposition of this case requires reference to the law of New Jersey. Kurlan v. Columbia Broadcasting System, 40 Cal.2d 799, 806, 256 P.2d 962; Philbrook v. Randall, 195 Cal. 95, 105, 231 P. 739; Schubert v. Lowe, 193 Cal. 291, 284, 223 P. 550. To determine the law of New Jersey we may look to the acts of the legislature of that state and to the interpretation placed upon them by her highest court. Code Civ.Proc. § 1875, subd. 3.
There is no doubt that the New Jersey separate maintenance decree was valid and enforceable up to June 7, 1948. It was entitled to full faith and credit in California. U.S.Const. art. IV, § 1. The trial court found that the Nevada decree was valid. It too is entitled to full faith and credit in California. To give full faith and credit to both of these decrees we resort to New Jersey law to determine what effect must be given to a valid ex parte divorce decree which is secured outside of New Jersey by a person subject to a valid separate maintenance decree rendered in New Jersey by a court having jurisdiction over that person. Sutton v. Leib, 342 U.S. 402, 72 S.Ct. 398, 96 L.Ed. 448; Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561; Meredith v. Meredith, D.C. Cir., 204 F.2d 64; Campbell v. Campbell, 107 Cal.App.2d 732, 736, 846, 238 P.2d 81.
In a recent case the highest court of New Jersey has held that 'a 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. Estin v. Estin, 1948, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561.' Isserman v. Isserman, 11 N.J. 106, 93 A.2d 571, 575. The Estin case does not demand the result reached by the New Jersey Supreme Court but that result is a permissible one. Sutton v. Leib, supra, 342 U.S. 402, 72 S.Ct. 398; Meredith v. Meredith, supra, 204 F.2d 64; Cardinale v. Cardinale, 8 Cal.2d 762, 68 P.2d 351. The Isserman case clearly indicates that under the law of New Jersey the defendant's Nevada divorce decree did not end the rights conferred upon the plaintiff by the prior New Jersey separate maintenance decree. Since the New Jersey separate maintenance decree is entitled to full faith and credit in California the superior court erred in sustaining the defendant's special defense and refusing to permit the plaintiff to proceed with her case.
The defendant's answer admitted that he had ceased making payments under the New Jersey decree on June 7, 1948. The plaintiff is therefore entitled to a judgment for $1,089 which is the amount due to her under the New Jersey decree between June 7, 1948, and the commencement of this action.
In her complaint the plaintiff asked that the defendant be ordered to pay $9 a week (the amount specified under the New Jersey decree) to her until further order of the superior court. Both New Jersey and California have adopted the Uniform Reciprocal Enforcement of Support Act. 9A U.L.A.Supp. p. 57 et seq.; Code Civ.Proc. § 1650 et seq.; N.J.S.A. 2A:4-30.1 et seq. Section 7 of that act provides: 'Duties of support enforceable under this law are those imposed or imposable under the laws of any state where the alleged obligor was present during the period for which support is sought or where the obligee was present when the failure to support commenced, at the election of the obligee.' Code Civ.Proc. § 1670; N.J.S.A. 2A:4-30.7. Section 2 of the Uniform Act defines 'duty of support' as including 'any duty of support imposed or imposable by law, or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, judicial * * * separation, separate maintenance or otherwise.' Code Civ.Proc. § 1653(6); N.J.S.A. 2A:4-30.2(f).
The Uniform Act further provides: 'In addition to the foregoing powers, the court of this State, when acting as the responding state has the power to subject the defendant * * * to such terms and conditions as the court may deem proper to assure compliance with its orders and in particular * * * (b) to require the defendant * * * to make payments at specified intervals to the * * * probation (officer of the county) * * * or the obligee * * *.' 9A U.L.A.Supp. p. 78; Code Civ.Proc. § 1685; N.J.S.A. 2A:4-30.15. Under the Uniform Act the superior court may in its discretion issue an order requiring the defendant to pay to the plaintiff weekly the amount provided for in the New Jersey separate maintenance decree.
Section 1654 of the Code of Civil Procedure provides that the remedies established under the Uniform Reciprocal Enforcement of Support Act 'are in addition to and not in substitution for any other remedies.' In Biewend v. Biewend, 17 Cal.2d 108, at pages 112-13, 109 P.2d 701 at page 704, 132 A.L.R. 1264, this court stated: 'The full faith and credit clause, however, does not obligate the courts of one state to enforce an alimony decree rendered in another state with regard to future payments * * *. Upon the basis of comity, however, as distinguished from the requirements of full faith and credit, the California courts have in numerous cases ordered that a foreign decree for future payments of alimony be established 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.' See also Toohey v. Toohey, 97 Cal.App.2d 84, 217 P.2d 108; Tomkins v. Tomkins, 89 Cal.App.2d 243, 200 P.2d 821. The Biewend and other supporting cases refer to foreign decrees for future alimony, but the principles enunciated in those cases are also applicable to final foreign decrees for separate maintenance. Under the general law of California the trial court may in this action order that the defendant make payments in accordance with the New Jersey separate maintenance decree until that decree is changed or modified by a court of competent jurisdiction.
The plaintiff is therefore entitled to a judgment for $1,089, the amount past due under the New Jersey separate maintenance decree; and the trial court may order the defendant to make future payments in accordance with that decree until such time as it is duly modified.
The judgment is reversed.
We concur: GIBSON, C. J., and EDMONDS, CARTER, TRAYNOR and SPENCE, JJ.
SCHAUER, Justice (concurring and dissenting).
Upon the theory enunciated in the concurring opinion in DeYoung v. DeYoung (1946), 27 Cal.2d 521, 527-528, 165 P.2d 457, I concur in the holding that plaintiff is entitled to a judgment for $1,089.
I dissent from the holding that the trial court may in this action order that 'the defendant make payments in accordance with the New Jersey separate maintenance decree until that decree is changed or modified by a court of competent jurisdiction.' Such holding is inconsistent with the law either as declared by the majority or suggested by the dissenters in the DeYoung case. (See also Biewend v. Biewend (1941), 17 Cal.2d 108, 109 P.2d 701, 132 A.L.R. 1264.)