Summary
In Johnson v. Johnson, 115 Ga. App. 749 (156 S.E.2d 186), this Supreme Court, affirmed the domestication of the judgment of a sister state duly authenticated and as conclusive on the defendant as to all questions that he could have been heard on in the court of the sister state when and before the judgment was rendered.
Summary of this case from Gray v. LoperOpinion
42753.
ARGUED MAY 2, 1967.
DECIDED MAY 19, 1967.
Action on foreign judgment. Fulton Superior Court. Before Judge Shaw.
Roland P. Smith, for appellant.
Huie Harland, Harry L. Cashin, Jr., Terrill A. Parker, for appellee.
1. "An alimony decree of a sister State, providing for future monthly payments, is such a decree as is enforceable in this State, under the full faith and credit clause of the Constitution of the United States, as to such payments as have become due and are unpaid at the time of a judgment thereon in this State." Tobin v. Tobin, 93 Ga. App. 568 (1) ( 92 S.E.2d 304) and cases cited.
2. "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." Sharman v. Morton, 31 Ga. 34 (2). "A judgment of a court of a foreign State having jurisdiction of the subject matter and the parties can not be collaterally attacked in the court of this State on the ground of fraud." Wood v. Wood, 200 Ga. 796 (2) ( 38 S.E.2d 545) and cit.
3. Even in a direct attack on a judgment on the ground of fraud "it must appear that it was not due to defendant's negligence that the fraud was perpetrated, and that due diligence would not have prevented the fraud." Hirsch v. Collier, 104 Ga. App. 271, 273 ( 121 S.E.2d 318). In the present case the pleadings and the evidence show that the defendant had been personally served in his wife's divorce action in the Virginia court, was represented by counsel for several months during the pendency of said action, had discharged his counsel and had not secured other counsel and was, hence, unrepresented at a hearing approximately one month thereafter, following which was entered a decree a mensa et thoro. The pleadings do not affirmatively allege nor does the evidence show any facts which prevented defendant's employment of other counsel or show his exercise of diligence in keeping himself informed as to the progress of his case and seeking a postponement if necessary. See American Mut. c. Co. v. Satterfield, 88 Ga. App. 395, 398 (2) ( 76 S.E.2d 730); Blanch v. King, 202 Ga. 779 ( 44 S.E.2d 779); Snow v. Conley, 113 Ga. App. 486, 490 ( 148 S.E.2d 484). Under these circumstances the defendant could not rely on his lack of representation and lack of notice of the court's actions in the case as a denial of due process by which to attack the former decree even directly.
4. Accordingly, the duly authenticated alimony decree of the Virginia court, which had jurisdiction of the subject matter and the parties, was not subject to collateral attack on the grounds of either alleged fraudulent testimony or alleged denial of due process by lack of representation and notice of the court's actions in the case. The decree was enforceable in the Fulton Superior Court in the plaintiff wife's action on the debt of record as to such payments as were due and unpaid at the time of the judgment on the decree in the Georgia court. Belcher v. Belcher, 204 Ga. 436 ( 49 S.E.2d 904), and citations; Tobin v. Tobin, 93 Ga. App. 568, supra. See also Henderson v. Henderson, 209 Ga. 148 ( 71 S.E.2d 210); O'Quinn v. O'Quinn, 217 Ga. 431 ( 122 S.E.2d 925). The pleadings and the evidence did not raise any genuine issues of material fact; therefore, the trial court did not err in its judgment granting a summary judgment in favor of the plaintiff, insofar as it awarded the amount of payments which were due and unpaid up to the date of the Virginia court's decree, plus interest to such time, the only sum for which judgment was prayed (except attorney's fees).
Judgment affirmed. Hall and Eberhardt, JJ., concur.
ARGUED MAY 2, 1967 — DECIDED MAY 19, 1967.
Doris T. Johnson brought an action in the Superior Court of Fulton County, in which she sought to have a final divorce decree awarding her permanent alimony, rendered by the Circuit Court of the County of Roanoke, Virginia, "recognized, established and enforced as the judgment of [the Superior Court of Fulton County] as by law provided." In addition to prayers for the due and unpaid temporary alimony payments up to the date of the Virginia court's decree, together with interest, court costs and attorney's fees, the petition sought to have the defendant "restrained and enjoined from failing and refusing to comply with the terms of said judgment." The defendant filed an answer alleging that the Virginia court's decree was not enforceable because it was based upon an interlocutory decree of which he had had no notice and which, in turn, had been based upon an alleged misrepresentation as to the plaintiff's income in her testimony. The plaintiff then moved for a summary judgment and the court rendered the following judgment: "The within and foregoing motion for summary judgment of the plaintiff coming on regularly to be heard, and after the introduction of evidence, argument and consideration thereon, it is hereby ordered that said motion be and the same is hereby granted; ordered further that the judgment entered in the Circuit Court of the county of Roanoke, Virginia, between the parties hereto, be and the same is recognized and established as a judgment of the Superior Court of Fulton County; ordered further that the plaintiff have and recover of defendant the sum of $6,300.00, plus $441.00 interest; ordered further that the defendant is temporarily restrained and enjoined from failing to comply with the terms of said judgment."
The defendant appealed to the Supreme Court of Georgia from the trial court's grant of the summary judgment and filed the following enumeration of errors: "1. That the court erred in granting appellee's motion for summary judgment and in finding that there was no substantial, genuine issue of fact as to any material issue in said action. 2. That the court erred in granting appellee's motion for summary judgment by failing to consider appellant's defense of violation of his rights under the Fifth Amendment to the Constitution of the United States of America, (Code § 1-805, Code of Georgia of 1933) and appellant's right under Article I, Paragraph 3 of the Constitution of the State of Georgia of 1945 as violative of appellee's rights of due process. 3. That the court further erred in granting appellee's motion for summary judgment against the weight of the evidence in refusing to consider appellant's defense of fraud in the finding of alimony for appellee in the final judgment of the Trial Court of Roanoke County, Virginia."
The Supreme Court transferred the appeal to this court. Johnson v. Johnson, 223 Ga. 147 ( 154 S.E.2d 13).