Brady v. Brady

158 S.E.2d 359, 151 W. Va. 900, 1967 W. Va. LEXIS 136

• Court: West Virginia Supreme Court
• Decided: November 7, 1967
• Docket: No. 12617
• Status: Published

Opinions

Beeey, Judge:

This proceeding arose out of a suit for separate maintenance instituted by the appellee, Virginia Brady, in the Circuit Court of Braxton County against the appellant, Joseph Brady, in which on February 28,1958, an order was entered by John H. Fox, Special Judge, that the said Joseph Brady pay to the said Virginia Brady the sum of $200 per month for the support and maintenance of the appellee and their infant child, Jack Lawrence Brady. On October 10, 1963, the appellant herein obtained a divorce from the appellee in Arkansas by order of publication. On or about February 17, 1964 the appellant filed a petition with a certified copy of the Arkansas divorce decree attached thereto in the Circuit Court of Braxton County praying that the judgment in the separate maintenance suit be modified, altered and changed and that he not be required to pay the said Virginia Brady anything for her maintenance and support because of a divorce obtained from her in Arkansas which relieved him of such payments. The Arkansas decree not only granted to Joseph Brady a divorce but granted as alimony and child support the same amount that the West Virginia Court had previously decreed for the maintenance and support of the minor child and Virginia Brady, by ordering the said Joseph Brady to pay $200 per month for the support and maintenance of the minor child, Jack L. Brady, and the said Virginia Brady. While not so termed, the money awarded to the wife in the Arkansas decree would technically be considered as alimony in West Virginia since it was payable as a result of and subsequent to a divorce. Virginia Brady filed an answer to tbe petition of Joseph Brady in which she did not attack or challenge the Arkansas divorce decree in any manner but merely asked that the petition be dismissed because no change of condition was alleged since the same sum was awarded by the separate maintenance suit and the Arkansas decree for divorce, as shown by the exhibit filed with the petition, and therefore was not subject to modification. The said Virginia Brady then filed a petition in the Circuit Court of Braxton County on December 8, 1964, alleging that the order of the Circuit Court of Braxton County of February 28, 1958, had not been superseded, annulled or modified and praying that the said Joseph Brady be compelled to pay the said Virginia Brady the amount in arrears of $245 required to be paid under said judgment and that he be adjudged in contempt for the failure to make such payments. The said Joseph Brady answered this petition and denied that he owed the said Virginia Brady the amount she claimed and asserted instead that he had overpaid her and owed her nothing. He later abandoned his claim that he should be given credit for certain payments. The Judge of the Circuit Court of Braxton County disqualified himself as he had done initially and transferred the case to the Circuit Court of Nicholas County. On January 5, 1966 the Circuit Court of Nicholas County, after a full hearing on September 24, 1965, found that the Arkansas divorce decree of October 10, 1963 did not supersede or annul the West Virginia decree of separate maintenance dated February 28, 1958, that said decree should not be modified and that the said Joseph Brady owed the said Virginia Brady the sum of $2254.13, and dismissed the petition filed by the appellant. The trial court also found the said Joseph Brady guilty of contempt for the failure to pay the maintenance and support money to Virginia Brady under the West Virginia decree and sentenced him to 60 days in jail and ordered him to pay the costs of the proceeding, bnt suspended the sentence for a period of 30 days in which to allow the said Joseph Brady to purge himself of said contempt hy paying the amount found to be due the said Virginia Brady, together with the costs of the proceeding. On January 5, 1966 Joseph Brady, by counsel, moved the Circuit Court of Nicholas County to grant him a new trial, which was overruled on that date.

Upon application to this Court an appeal and super-sedeas to the judgment of January 5,1966 were granted October 10, 1966. The case was submitted for decision upon arguments and briefs at the September Regular Term, 1967 of this Court.

The appellant, Joseph Brady, proved his divorce obtained in Arkansas by filing in this proceeding a certified copy of the decree which apparently complies in substance with the provisions of Rule 44 (a), R.C.P., dealing with proof of official records, although the certificate thereon should have been more specific that the decree came from the custody of the signer thereof. No objection was made to its form, however.

Although there was no personal service on the said Virginia Brady or personal appearance by her in the Arkansas divorce proceedings she did not attack the judgment in any manner and has waived any question as to its validity in its entirety in this proceeding. The Arkansas divorce decree was therefore made a judgment in this State. Williams v. North Carolina, 325 U. S. 226, 65 Sup. Ct. Rep. 1092. The entire judgment would have to be given full faith and credit and not just a part of it as far as the appellant, Joseph Brady, is concerned, because he instituted the suit and apparently was personally present in Arkansas, under the jurisdiction of its courts when the judgment was rendered. The pertinent part of the Arkansas decree reads as follows:

“IT IS, THEREFORE, BY THE COURT considered, ordered, adjudged and decreed that the plaintiff be, and he is hereby, awarded a complete and absolute divorce from the defendant herein; and the plaintiff is hereby directed to pay $200.00 per month toward the support and maintenance of the minor child, Jack L. Brady, and the defendant, Virginia M. Brady; and the plaintiff is hereby restored to all rights and privileges of a single and unmarried person.” There was no hiatus between the provisions of the identical matters in the West Virginia maintenance and support decree of February 28, 1958, and the alimony and child support in the Arkansas divorce decree of October 10, 1963. It would clearly appear that if not attacked on jurisdictional grounds the Arkansas decree could be enforced in this State.

Notwithstanding the above situation the appellee, Virginia Brady, contends that regardless of the Arkansas divorce the West Virginia maintenance and support decree is not superseded or annulled by the Arkansas divorce decree and should be enforced by the West Virginia Court. In support of this contention she relies on the case of Estin v. Estin, 334 U. S. 541, 68 Sup. Ct. Rep. 1213, 92 L.Ed. 1561, 1 A.L.R. 2d 1412. This case advanced the so-called “divisible theory” in divorce cases, i.e., that the divorce itself was a proceeding in rem which affected the status of the parties but that an alimony or maintenance or support decree was in personam and therefore required personal service to be effective outside a state. In the Estin case the wife obtained a maintenance and support decree in New York and the husband later obtained a divorce from the wife in Nevada and the divorce decree had no provisions for any support for the wife. Service was had by order of publication in Nevada and there was no personal appearance by the wife. The Supreme Court of the United States held that although the Nevada decree was entitled to full faith and credit as to the divorce it was ineffective as to the New York maintenance and support decree. This rule has been followed in many subsequent cases. Kreiger v. Kreiger, 334 U. S. 555, 68 S. Ct. 1221, 92 L. Ed. 1572; Armstrong v. Armstrong, 350 U. S. 568, 76 S. Ct. 629, 100 L. Ed. 705, rehearing denied 351 U. S. 943, 76 S. Ct. 832, 100 L. Ed. 1469; Vanderbilt v. Vanderbilt, 354 U. S. 416, 77 S. Ct. 1360, 1 L. Ed. 2d 1456.

It appears from the authorities that this rule is applicable only where the laws of the state allow such recovery of support money by the wife after the husband had obtained a divorce. See 24 Am. Jur. 2nd, Divorce and Separation, § 993; Esenwein v. Commonwealth of Pennsylvania, 325 U. S. 279, 65 S. Ct. 1118, 89 L. Ed. 1608; Estin v. Estin, supra; Lewis v. Lewis, (Cal.) 317 P. 2d 987; Morris, Divisible Divorce, 64 Harvard Law Review, 1287.

The Esenwein case clearly presents this matter wherein the Court stated that under the Pennsylvania law a support order did not survive a divorce and if the Nevada divorce decree was given full faith and credit it would cut off the maintenance and support decree previously obtained in Pennsylvania. However, the Nevada divorce was attacked on jurisdictional grounds and held void which left the maintenance and divorce decree in Pennsylvania in full force and effect. In the Estin case the opinion clearly shows that the highest court in New York had held that in New York a support order can survive a divorce and that the particular support order survived the divorce decree in that ease. In the Lewis case Justice Traynor clearly stated the rule in the following language: “Defendant acknowledges the settled rule that when a wife has secured a judgment of separate maintenance in the state of her domicile, her right to support thereunder will survive a subsequent valid, ex parte, foreign decree of divorce secured by her husband if the law of her domicile so provides.” [Emphasis supplied.] It is further stated in that case in connection with this question that: “The effect on a wife’s right to support of a foreign, ex parte divorce secnred by her hnsband is determined by reference to the law of the state of the wife’s domicile at the time of the divorce, in this case the law of Illinois. ’ ’

In the case of Armstrong v. Armstrong, supra, the hnsband obtained a divorce from his wife in Florida who had separated from him and gone to the State of Ohio where she established a residence. Constructive service was obtained on the wife and she did not appear in the Florida Court and the Florida Court, in addition to granting the divorce, further decreed that “ * * * no award of alimony be made to the defendant.” The wife later sued her husband in Ohio for divorce and alimony and the husband appeared and set up the Florida divorce as a defense. The Ohio Court denied the wife a divorce because of the prior Florida decree but granted her alimony. This was done under a statute allowing alimony to be granted to a wife after a divorce had been obtained by the husband. This has caused confusion with regard to the meaning of the terms alimony and separate maintenance and support and is no doubt the reason for the use of the term alimony by the authorities in connection with this matter where the divisible divorce doctrine is discussed. Technically, before the “ divisible” divorce doctrine was introduced, alimony could only be granted at the time of a divorce. Separate maintenance and support could always be granted without a divorce. This matter is discussed in 24 Am. Jur. 2d, Divorce and Separation, <§ 992, citing the Armstrong and Vanderbilt cases for authority, wherein it is stated: ‘ ‘ The divorce court must have jurisdiction of the wife in personam in order to adjudicate or cut off her right to alimony. While a court may gain jurisdiction to grant a divorce by constructive service upon a nonresident wife, such a service does not give it jurisdiction to adjudicate alimony rights, and so it is held that an ex parte divorce obtained by the husband cannot affect the right which the wife may have to alimony under the latos of another state, and any express or implied adjudication against her claim is void and will not be given effect by comity or nnder the full faith and credit clause. As hereinafter appears, the law of the forum may permit an allowance of alimony notwithstanding a prior divorce.” [Emphasis supplied.] Section 993 deals with the matter in the following language: ‘ ‘ * * # A judgment for alimony is a property right, intangible in nature, and jurisdiction over an intangible can only arise from jurisdiction over the person. If, therefore, the husband obtains a foreign divorce upon constructive service, the divorce court does not have jurisdiction to terminate the right, and where, under the law of the state which granted alimony, the judgment survives an ex parte divorce, it may be enforced in that state. ’ ’ [Emphasis supplied.]

The Vanderbilt case cited the New York Civil Practice Act that allowed a wife to obtain maintenance and support after the husband obtained a divorce and it also specifically disapproved the case of Thompson v. Thompson, 226 U. S. 551, 33 S. Ct. 129, 57 L. Ed. 347, insofar as it held ipso facto that an ex parte divorce destroyed alimony rights and in effect held that it was no longer controlling in such cases where the divisible divorce doctrine had been adopted. The courts in some states held long before the Estin case that a divorce decree obtained by the husband in another state upon the wife did not affect the decree for separate maintenance and that it continued in force and effect until directly modified by the court granting it. 27 Am. Jur., Husband and Wife, § 429. The law in West Virginia, however, has been that a decree of absolute divorce terminates the right of a wife to separate maintenance and support and we are not inclined to overrule the cases on this matter at this time. Chapman v. Parsons, 66 W. Va. 307, 66 S.E. 461, 24 L.R.A. (N.S.) 1915; Wolford v. Wolford, 133 W. Va. 403, 56 S.E. 2d 614; Snyder v. Lane, 135 W. Va. 887, 65 S.E. 2d 483.

Apparently from the vast number of decisions and statutes in America attempting to define alimony, support and maintenance, there is no magic in the words themselves. They have been applied interchangeably or restricted to special meanings according to what state attempted to construe them. See Title “Alimony” in Vol. 3, Words and Phrases. Our own statutes and some decisions reflect the confusion. Code, 48-2-15, as amended, referring to the allowance on divorce calls it “Alimony” in the title but “maintenance” in the body of the statute. Code, 48-2-29, as amended, has the title “Suit for Separate Maintenance” but refers to the monetary allowance resulting therefrom as “alimony and separate maintenance.” Laymen commonly think of alimony as granted to an ex-wife on divorce and support as granted to one who is still a wife. The confusion in decisions largely results from statutes twisting the meaning of Latin words and from historical changes in the treatment of divorce. See Lynde v. Lynde, 52 A. 694, 64 N. J. Eq. 736 for historical background. Of course until 1935 West Virginia had two types of divorce, one in effect a legal separation, the other an absolute; the abolition of the first type left our separate maintenance suit restricted to support prior to divorce, and a later divorce necessarily superseded the non-divorce allowances because it terminated the status on which separate maintenance rested. Therefore, regardless of the word by which an allowance is called in West Virginia, the allowance resulting from divorce is a different type of allowance from that existing during a separation, and necessarily supersedes the separate maintenance award, even though the divorce be granted in another state but be entitled to full faith and credit here.

The statute in this State with regard to the obtaining of separate maintenance, Code, 48-2-29, as amended, contemplates that the marital relation exists between the husband and wife because it provides that when a husband fails without good and sufficient cause to support his wife, at the suit of the wife maintenance and support can he obtained for her and the minor children of the parties. It is stated in the Chapman case at page 311 as follows: “Maintenance of the wife by the husband is alone incident to the marriage relation. There is no duty to furnish maintenance when that relation does not exist. Alimony is cognizable by a court only in regard to the relation of husband and wife. It springs from marital duties. The statutes to which we have referred plainly recognize that the marital relation is the source of alimony.” [Emphasis supplied.]

It was held in the case of Wolford v. Wolford, supra, that: “The main purpose of a suit for separate maintenance, when no divorce is prayed for, is to require the husband to support his wife during the existence of the marriage, whereas the real object of a suit for divorce is the dissolution of the marriage contract in which the State has a direct and vital interest.” [Emphasis supplied.] This case was decided in 1949 after the 1935 revision of our divorce statutes.

In the case of Snyder v. Lane, supra, decided in 19-51, this matter is dealt with in Point 1 of the syllabus wherein it is stated: “It is the duty of a husband to maintain and support his wife while the marital relation exists, unless by her conduct or for some other sufficient reason he is relieved of that duty; and a court of equity has jurisdiction, in a suit for separate maintenance and support, to require him to perform such duty.” [Emphasis supplied.] Unless a divorce decree from a foreign state is attacked on jurisdictional grounds a sister state must give it full faith and credit under the provisions of that clause of the Constitution of the United States. Williams v. North Carolina, 317 U. S. 287, 63 S. Ct. Rep. 207, 87 L. Ed. 279, 143 A.L.R. 1273; Williams v. North Carolina, 325 U. S. 226, 65 S. Ct. Rep. 1092, 89 L. Ed. 1577, 157 A.L.R. 1366. This Court recognized that full faith and credit must be given to divorce decrees of sister states long before tbe above cases were decided, wbicb was clearly stated in tbe case of Caswell v. Caswell, 84 W. Va. 575, 584, 100 S.E. 482, in tbe following language: ‘ ‘ Tbe copy of tbe proceedings from tbe district court of Logan county, Oklahoma, being duly and properly certified, and it not appearing therefrom that tbe court was without jurisdiction, and tbe decree being such as is entitled to full faith and credit in tbe courts of that territory, now the State of Oklahoma, tbe policy of our law as declared in section 19 of chapter 130, Code, entitles it to tbe same faith and credit in tbe courts of this state. Haddock v. Haddock, 201 U. S. 562, on wbicb plaintiff relies, does not determine tbe law of this State. That was a case wbicb went up from tbe Court of Appeals of tbe State of Few York, and tbe decision therein turned upon tbe policy of that state, wbicb was not to recognize as binding upon one of its citizens a decree of divorce obtained in a court of a sister state, upon a service of process by order of publication, when it appeared that the parties bad never cohabited as man and wife in tbe state wherein tbe divorce was decreed. It was held in that case, by a divided court, that Sec. 1 of Art. IV of tbe Constitution, requiring tbe courts of each state to give full faith and credit to tbe public acts, records, and judicial proceedings of every other state, did not compel a state court, in violation of tbe state’s own policy, to give full faith and credit to a default decree of divorce, based upon an order of publication, when it appeared there bad been no matrimonial residence of tbe parties in tbe state wherein tbe divorce was obtained. But the policy of our state, as shown by tbe statute above referred to, differs from tbe policy of tbe State of New York. No lack of jurisdiction in tbe Oklahoma court appearing, our conclusion is that tbe lower court properly overruled tbe first exception to defendant’s answer.”

It may be interesting to note that since tbe Caswell case was decided by this Court bolding that full faith and credit should be given to tbe decrees of tbe courts of sister states, unless they are attacked on jurisdictional grounds, the Haddock case has been specifically overruled by the Supreme Court of the United States in the first Williams case, 317 U. S. 287, here-inbefore cited, requiring the courts of all the states in this country to give full faith and credit to sister states where process is obtained by order of publication unless the decree is attacked on jurisdictional grounds.

In the case at bar, as heretofore stated, the Arkansas Court did not refuse or fail to pass on the question of alimony or support for the wife as was done in most of the cases dealing with this matter. The Arkansas Court provided for the maintenance and support of the wife and the provisions pertaining thereto are identical to the "West Virginia maintenance and support decree. It may well be that under the ‘ ‘ divisible divorce ’ ’ doctrine where a divorce is obtained with constructive service on the wife and alimony or support is awarded the wife in the divorce proceeding although she did not personally appear, she could object to such award if not satisfied with the amount. See Dorney v. Dorney, (W. Va.) 245 Fed. 2d 201. However, the wife did not object to the award of alimony or support in this case and waived any question in connection therewith.

It is-contended by the appellant that misconduct on the part of the wife bars her right to support or alimony. This may be true where it is applicable, hut it certainly does not apply to the case at bar. There is no proof of any misconduct on the part of the appellee. The appellant relied on the Arkansas divorce decree granted to him to establish the fact that the appellee was guilty of misconduct prior to the date he obtained the divorce. This contention is without merit because the Arkansas decree clearly states that the ground upon which the decree is based is that the parties had been separated for “* * * three years continuous separation without cohabitation as husband and wife * * which is not misconduct in "West Virginia and perhaps not in Arkansas. Then, too, the separate maintenance suit in West Virginia legally provided for such separation.

It would therefore appear under the law of this State that the appellee, Virginia Brady, is not entitled to maintenance and support in accordance with the decree of the Circuit Court of Braxton County entered on February 28, 1958, because the divorce decree granted by the State of Arkansas was properly made a judgment in this State at the hearing in the trial court by the filing at the start of the proceedings in West Virginia of a petition of the appellant with which was exhibited a certified copy of the Arkansas decree from the clerk in whose custody the records were kept, particularly inasmuch as this Arkansas decree was not attacked on jurisdictional grounds by the said Virginia Brady, although the record indicates that such an attack might be warranted. Inasmuch as West Virginia does not recognize the “divisible divorce” doctrine referred to in the Estin, Vanderbilt, Armstrong, Lewis and other similar cases involving states which have statutes or laws allowing such theory to obtain in the matter of separate maintenance or support persisting independently of divorce, full faith and credit must be given to the Arkansas divorce decree by this State in accordance with the decisions of the Supreme Court of the United States and the law of this State, Code, 57-1-12.

However, it would appear that the said Virginia Brady is entitled to be paid alimony and support money in the amount of $200 per month from the said Joseph Brady for her and their infant child, Jack Brady, under the decree of the Arkansas Court which so provided if she so desires. The appellant, Joseph Brady, can not object if the decree is not attacked on jurisdictional grounds because he instituted the divorce proceedings in Arkansas, was personally present when the personal judgment against Mm was rendered and full faith and credit must be given to the entire decree. It is true that regardless of whether the decree of separate maintenance and support is recognized in this State after the divorce as far as the wife is concerned, it is always the duty of the father to support his infant son. That would not be under the provisions of the maintenance or support decree entered by the Circuit Court of Braxton County in 1958 but by a separate proceeding on behalf of the infant son.

Although we are of the opinion that the said Virginia Brady is entitled to what we commonly call alimony under the Arkansas decree if it is not attacked on jurisdictional grounds, she must ask for such enforcement in the Courts of this State if her former husband fails to comply with the provisions of the Arkansas decree with regard to such matter. During the proceeding in the case at bar she moved that his petition with the certified copy of the Arkansas decree be dismissed which motion was granted by the trial court indicating that she did not desire at that time to rely on the Arkansas decree relating to the award of alimony.

Inasmuch as the said Virginia Brady can not rely on the provisions of the West Virginia maintenance and support decree as long as the Arkansas divorce decree is not challenged except for any payments that may have been in the arrears up until the time of the entry of the Arkansas divorce decree on October 10, 1963, the judgment of the Circuit Court of Nicholas County is reversed as to its finding of contempt based upon the West Virginia maintenance and support decree after the Arkansas divorce decree was proved and made a judgment in this State. If the said Virginia Brady desires to rely on the provisions for alimony in the Arkansas decree she may institute proper proceedings to do so.

For the reasons stated herein, the judgment of the Circuit Court of Nicholas County is reversed.

Reversed.