Opinion
No. 34201.
June 10, 1940.
1. DIVORCE.
Whether Louisiana judgment awarding monthly alimony to divorced wife was revocable in Louisiana as to past-due monthly installments, or was final in Louisiana so as to be enforceable in Mississippi under full faith and credit clause of Federal Constitution, must be decided by the laws of Louisiana and the decisions of Louisiana Courts (Rev. Civ. Code La., art. 160; U.S.C.A. Const., art. 4, sec. 1).
2. DIVORCE.
A Louisiana judgment awarding monthly alimony to divorced wife was a "final judgment" as to past-due installments of alimony, and hence was enforceable in Mississippi under full faith and credit clause of Federal Constitution (Rev. Civ. Code La., art. 160; U.S.C.A. Const., art. 4, sec. 1).
3. COURTS.
Where court has jurisdiction of subject matter, territorial jurisdiction of parties is determined by their place of residence at the time the suit is filed.
4. DIVORCE.
A Louisiana court awarding monthly alimony to wife had jurisdiction to render judgment, the same as if husband had filed an answer or other formal pleading, where husband testified that he was resident of Louisiana when divorce action was instituted and that he did not take up residence in Mississippi until a later date, and husband filed entry of written appearance, signed in Mississippi, stating that husband submitted himself to jurisdiction of Louisiana court, and consented to entry of judgment for alimony in event of divorce (Rev. Civ. Code La., art. 160).
5. DIVORCE.
A decree against husband for past-due monthly installments of alimony awarded to divorced wife by Louisiana judgment would not be reversed on ground that wife failed to offer any proof that installments had not been paid and that answer under oath was not waived, and that husband answered under oath and denied that any amount was past due and owing by him to wife, where answer further stated that husband admitted that he had not paid such amounts in accordance with Louisiana judgment, and payment was not otherwise claimed (Rev. Civ. Code La., art. 160).
APPEAL from the chancery court of Hinds county; HON. V.J. STRICKER, Chancellor.
Harold Cox, of Jackson, for appellant.
The lower court erred in awarding a decree in any amount against the appellant based on the Louisiana judgment under the facts in this record.
Steele v. Steele, 118 So. 721, 152 Miss. 365.
The undisputed facts in this record show that the appellant had moved his residence to Jackson, Mississippi, prior to the filing of the initial proceeding in said Louisiana court for divorce and alimony. The undisputed evidence in this record shows that the two waivers executed by appellant were signed and delivered by appellant in Jackson, Mississippi. It was a palpable effort on the part of the attorneys for the complainant in the Louisiana proceeding to have the nonresident appellant in this proceeding confer territorial jurisprudence by consent of his person. Under numerous decisions of this court and from the Supreme Court of Louisiana, it is held that jurisdiction can't be conferred by consent.
50 C.J. 487.
The court will notice that the waiver was not proved nor acknowledged in any manner.
Industrial Investment Co. v. Standard Life Ins. Co., 170 Miss. 138, 149 So. 883; Boone v. Miller, 133 So. 121, 160 Miss. 287; Nelson v. Employers' Casualty Co. (La.), 141 So. 619.
The transcript of the Louisiana District Court shows that said court was without jurisdiction to have entered the decree in question on March 7, 1938.
Chew Relf v. Randolph, Walker (1 Miss.), 1.
The lower court erred under such circumstances in admitting in evidence said transcript of said Louisiana proceeding over the special objection of appellant.
The next error complained of is that the lower court awarded appellee a decree for the full amount sued for without any proof to sustain her complaint that any specific amount remained due and unpaid under the Louisiana decree.
While the appellee was privileged to file an amended bill of complaint and did secure proper authority to do so, she was not entitled to make out a new case, or to recover for any instalments under said decree which were not due and therefore recoverable in the original bill of complaint.
Griffith's Chan. Practice, sec. 398.
There is another more fundamental reason why the accumulated instalments under said decree maturing after July 7, 1939, and through September 7, 1939 were not recoverable in this action. The future instalments which were unmatured under said decree of said Louisiana District Court when the original bill of complaint was filed in the lower court on August 2, 1939, could not be recovered in the amended bill of complaint, which was filed in the lower court on November 9, 1939. Such amount accruing from July to September was not recoverable in the amended bill of complaint, unless it would have been recoverable if sued for in the original bill of complaint, since such instalments matured while the original bill of complaint was pending in the lower court.
Laign v. Rigney, 16 S.Ct. 366; Sec. 160, Dart's Louisiana Civil Code.
The decree of the Louisiana District Court, dated March 7, 1938, was and is not such a final judgment as is entitled to full faith and credit under the laws of this state. That identical question has been decided in this state. This court has held that since a final decree of a Louisiana District Court is subject to change under the plain provisions of the statute of that state, that even a judgment for the matured instalments thereunder is not recoverable in the courts of this state.
Western Life Indemnity Co. v. Rupp, 235 U.S. 261; Gallant v. Gallant, 123 So. 883, 154 Miss. 832.
This court has never indicated any inclination to change the decree in the case of Gallant v. Gallant, and there is now existent in this case a more impelling force than merely the doctrine of stare decisis against an overturn of the Gallant case after appellant and counsel have relied so implicitly thereon to determine and guide their course in refusing to negotiate with the appellee in a settlement of this controversy in absolute reliance upon the Gallant case and the subsequent reaffirmance thereof.
State v. Longino, 67 So. 902, 109 Miss. 125.
We submit that the decree of the Louisiana court was not such a final decree as entitled it to full faith and credit under the Constitution in the courts of this state. Such announcement has been made and consistently adhered to by this court and ought not to be changed at this late date. No harmful or mischievous effect has been shown or can be shown to result from an adherence to the announcement of this court in the Gallant case, and even stronger reasons than the mere impelling force of stare decisis require a reaffirmation by this court of the principles announced in that case. The case of Snow v. Snow, 177 So. 793, does not even undertake to criticize the Gallant case but merely adroitly distinguishes it, and rather compliments the court upon its position in dealing with the question in that case, as in the case at bar, of whether or not the judgment was such a final judgment as to entitle it to full faith and credit under the Constitution.
In awarding the appellee a decree in this record of $510 on that Louisiana District Court decree, we submit with the utmost deference and confidence that the lower court erred and that the judgment of the lower court ought to be reversed and a judgment entered here dismissing said bill of complaint.
R.H. and J.H. Thompson, of Jackson, for appellee.
The judgment of the District Court of the State of Louisiana, upon which this suit is brought, is entitled to full faith and credit in the courts of the State of Mississippi.
Const. of U.S., Art. IV, sec. 1; Sistare v. Sistare, 218 U.S. 1; Snow v. Snow (La.), 177 So. 793.
The judgment of the Louisiana court upon which suit was brought is a final judgment.
Snow v. Snow (La.), 177 So. 793.
The Louisiana court had jurisdiction over the person of the defendant.
Mutual National Bank v. Moore (La.), 24 So. 304; 34 C.J. 1147, par. 1624 ee.
A foreign judgment for alimony will be enforced in the courts of the State of Mississippi as if it were a domestic judgment.
Fanchier v. Gammill, 148 Miss. 723, 114 So. 813, 155 Miss. 316, 124 So. 365.
The courts of Mississippi have the right in this case to inquire into the jurisdiction of the Louisiana courts over the person of the defendant. However, the test as to jurisdiction is found in the laws of Louisiana and in the decisions of the Supreme Court. The fact that the District Court in which the Louisiana decree was rendered held that it had jurisdiction is not lightly to be disregarded. The decision in Mutual National Bank v. Moore (La.), 24 So. 304, appears to foreclose any question as to jurisdiction. That decision is of interest not only because it shows what weight the Supreme Court of Louisiana has given to an entry of appearance such as exists in this case, but also that such an entry of appearance gave jurisdiction to the Alabama court in which it was introduced to render a judgment which was held to be, by the Supreme Court of Louisiana, the basis for the rendition thereon by the courts of Louisiana of a judgment in Louisiana.
In Gallant v. Gallant, 154 Miss. 832, 123 So. 883, the Supreme Court of Mississippi held that a decree could not be rendered in Mississippi on a Louisiana decree for divorce, under the full faith and credit clause of the United States Constitution, where the decree could be annulled, varied, or modified by the court rendering it. It is interesting to note that the decision in the case just cited was based upon the fact that no Louisiana case was cited, and none could be found by the court directly in point upon the question of the right of the Louisiana court to revoke or modify a judgment for permanent alimony after monthly installments have accrued thereunder; and, therefore, the conclusion of the Mississippi Supreme Court upon that question was based upon a consideration of the decisions involving alimony pendente lite.
It is further of interest to note that various Louisiana decisions were discussed in the opinion and that these decisions have been again reviewed and discussed by the Supreme Court of Louisiana in the Snow case. Had it not been for the decision in the Snow case, appellee's action could not be maintained, because of the holding in the Gallant case. The Louisiana Supreme Court not only discussed and reviewed the Louisiana cases, but discussed the Gallant case, and in discussing it, said: "But we do not construe the opinion or decree rendered by the Supreme Court of Mississippi, in Gallant v. Gallant, as meaning that a Louisiana court that has rendered a judgment for alimony in favor of a divorced woman may annul or amend the judgment for an amount that has become delinquent since the judgment was rendered, on the debtor's showing that he was financially unable to pay the alimony when it came due, or afterwards. If a judgment for alimony is not more substantial than that, it is of little or no value or protection to the one in whose favor it is rendered. There is no reason why a judgment for alimony, as to the amount which has become past-due since the judgment was rendered, should not be protected by the provision in Article 548 of the Code of Practice, that a judgment when once rendered becomes the property of the one in whose favor it has been given and cannot be annulled or amended except by the method and for the causes prescribed by law."
Prior to the decision of the Snow case, there was no decision of the Louisiana Supreme Court holding that past-due alimony installments were not subject to modification. Now that there is a definite decision to that effect, the Supreme Court of Mississippi must affirm the decree of the lower court, rendered in this cause. By so doing, it will not overrule the Gallant case, but will render an opinion on a different state of the law. The decision in the Gallant case was reached because of want of an applicable decision of the Louisiana Supreme Court. This want has now been supplied and the court now has before it absolute authority of the Louisiana Supreme Court which was lacking at the date of the decision under discussion.
The decree of the Chancery Court of Hinds county, herein appealed from, is for past-due monthly installments of alimony which had accrued unto the appellee, and is predicated on a judgment rendered in the Fifteenth District Court, Parish of Acadia, Louisiana, and duly certified under the Acts of Congress.
The authority for the allowance of such alimony in the state of Louisiana is contained in Article 160 of the Revised Civil Code of the state, which is found quoted in the opinion of this court in the case of Gallant v. Gallant, 154 Miss. 832, 123 So. 883, 885, as follows: "If the wife who has obtained the divorce has not sufficient means for her maintenance, the court may allow her in its discretion, out of the property and earnings of her husband, alimony which shall not exceed one-third of his income. This alimony shall be revocable in case it should become unnecessary, and in case the wife should contract a second marriage."
Hence, it is contended by the appellant that the judgment of the said district court is not a final judgment such as is entitled to full faith and credit under the requirement of Article IV, section 1 of the Constitution of the United States; and he cites in support of that contention the case of Gallant v. Gallant, supra, wherein this court held that a decree of the Louisiana court for the payment of alimony in monthly installments, "is one that may be annulled, varied, or modified by the court rendering it, and consequently is not, as to such alimony, enforceable in this state under the full faith and credit clause of the Constitution." In that case, however, this court, after having cited and reviewed numerous decisions, including Barber v. Barber, 62 U.S. 582, 21 How. 582, 16 L.Ed. 226; Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810; Sistare v. Sistare, 218 U.S. 1, 16, 30 S.Ct. 682, 686, 54 L.Ed. 905, 28 L.R.A. (N.S.) 1068, 20 Ann. Cas. 1061; Hunt v. Monroe, 32 Utah 428, 91 P. 269, 11 L.R.A. (N.S.) 249; and Barclay v. Barclay, 184 Ill. 375, 56 N.E. 636, 51 L.R.A. 351, said: "It does not, however, necessarily follow from the conclusions last above stated that the court of original jurisdiction may revoke or modify past-due installments of permanent alimony, . . .; and, in the absence of a decision of the Supreme Court of Louisiana on this point in a case involving permanent alimony, we must base our conclusions upon the rulings of the Louisiana court in analogous cases involving past-due installments of alimony pendente lite." The result was that the foreign decree in that case was held unenforceable in this state, and this appears to be true even as to the past-due installments which had accrued thereon. The court so held, as suggested in the opinion, because of the absence of a decision of the Louisiana Court to the contrary. Since that time, however, the Supreme Court of Louisiana decided the case of Snow v. Snow, 188 La. 660, 177 So. 793, 799, wherein the Gallant case, supra, was discussed as follows: "But we do not construe the opinion or decree rendered by the Supreme Court of Mississippi, in Gallant v. Gallant, as meaning that a Louisiana court that has rendered a judgment for alimony in favor of a divorced woman may annul or amend the judgment for an amount that has become delinquent since the judgment was rendered, on the debtor's showing that he was financially unable to pay the alimony when it came due, or afterwards. If a judgment for alimony is not more substantial than that it is of little or no value or protection to the one in whose favor it is rendered. There is no reason why a judgment for alimony, as to the amount which has become past-due since the judgment was rendered, should not be protected by the provision in article 548 of the Code of Practice, that a judgment, when once rendered, becomes the property of the one in whose favor it has been given, and cannot be annulled or amended except by the method and for the causes prescribed by law."
The test as to whether the foreign judgment here involved is revocable in the jurisdiction where rendered, as to the past-due instalments sued for in the court below, must be determined by the decisions of the courts of Louisiana, since the question involves a construction of the statute of that state hereinbefore quoted. Therefore, applying the decision announced in the case of Snow v. Snow, supra, we hold that the judgment as to past-due instalments is final, and consequently is enforceable in this state under the full faith and credit clause, Article IV, section 1, of the Constitution of the United States.
It is next urged, however, that the said district court of Louisiana did not have territorial jurisdiction of the appellant at the time of his entry of a written appearance in that court, which was signed at Jackson, Mississippi, whereby he said that he "was taking cognizance of all of the proceedings and evidence, submitting the same for consideration by the court the same as though he had appeared personally in all of said proceedings, and submits himself to the jurisdiction of the court." The proceedings were instituted by the appellee on August 21, 1936, and the appellant testified that he took up his residence in Mississippi on September 1, 1936. When asked if he was a resident of Louisiana on August 21, 1936, he answered, "Well, I guess you would call it a resident of Louisiana."
Where the court has jurisdiction of the subject matter, territorial jurisdiction of the parties is determined by their place of residence at the time the suit is filed. Moreover, the Louisiana court, in the case of Mutual National Bank v. Moore, 50 La. Ann. 1332, 24 So. 304, 306, held that an entry of appearance signed in one state, and filed in a court of another state, "means just what it says, and an appearance in a pending cause signifies an appearance for every purpose in said cause. Otherwise it would be meaningless. It was prepared, as its language and terms fully import, for use in that suit, and the defendants are conclusively bound thereby." Furthermore, the instrument filed by the appellant in the cause pending in the said district court agreed that in the event the court should grant appellee a divorce, a judgment might be rendered against him, fixing alimony for the support of appellee and his minor daughter, Gladys Compton, at $60 per month. Therefore, we are of the opinion that the court acquired jurisdiction to render the judgment, the same as if he had filed an answer or other formal pleading in the case.
The Mississippi decisions cited by appellant on the insufficiency of certain forms of waiver and entry of appearance, such as Industrial Investment Co. v. Standard Life Ins. Co., 170 Miss. 138, 149 So. 883, and Boone v. Miller, 160 Miss. 287, 133 So. 121, are not controlling; since the validity of the judgment here involved must be determined by the laws of Louisiana. Nor is the case of Nelson v. Employers' Casualty Co. (La. App.), 141 So. 619, applicable, because in that case the parish in which the suit was brought had no jurisdiction of the suit, and could not have acquired any, for the reason that Act No. 20 of 1914, as amended by Act No. 38 of 1918, of the Laws of Louisiana, required that the suit be brought in a different parish than that in which the judgment was rendered.
Finally, it is contended that the decree rendered against the appellant in the court below for the amounts of the past-due instalments must be reversed for the reason that appellee failed to offer any proof that the same had not been paid; that answer under oath was not waived, and that appellant answered under oath and denied that the sum claimed, or any other amount, was past due and owing by him to appellee. The position would be well taken, except for the fact that the answer also stated, "and defendant admits that he has not paid said amounts in accordance with said decree." Nor was payment otherwise claimed. Hence, no proof other than the duly certified transcript of the foreign proceedings was necessary.
Affirmed.