Dyal v. Dyal

16 S.E.2d 53, 65 Ga. App. 359, 1941 Ga. App. LEXIS 323

• Court: Court of Appeals of Georgia
• Decided: July 16, 1941
• Docket: 28893.
• Status: Published

Opinions

Per Curiam :

The judgment of a court of one State, when sued on, pleaded, or introduced in evidence in another State, is entitled to receive the same full faith, credit, and respect that is accorded to it in the State where rendered. If it is valid and conclusive there, it is so in all other States. Tompkins v. Cooper, 97 Ga. 631 (25 S. E. 247); Thomas v. Morrisett, 76 Ga. 385. Therefore, a judgment rendered by a competent court of another State is conclusive on the merits in the courts of this State when made the basis of an action or defense, and the merits can not be reinvestigated. Hope v. Wdlsenburg First National Bank, 142 Ga. 310 (82 S. E. 929); Spann v. Edwards, 139 Ga. 715 (77 S. E. 1128); McCauley v. Hargroves, 48 Ga. 50 (50 Am. R. 660). While a foreign judgment or decree is not subject to modification by the courts of this State, and therefore a judgment or decree for alimony rendered by a court of Florida can not be modified in a proceeding brought thereon in the superior court of this State, the defendant may interpose therein such defenses as would be available to defeat a recovery on the judgment in the jurisdiction where it was rendered. The plea and answer of the defendant may deny the existence of the judgment sued on, or the plaintiff’s right to .sue on it, or the jurisdiction of the court which rendered it, or may allege payment and satisfaction. The defendant, in a‘ suit on a judgment in Florida, may plead partial satisfaction thereof. Payment is a complete defense to an action bn a judgment. Also, in those jurisdictions permitting equitable defenses to be set up in an action at law, a suit on a judgment may be defeated by proof of any fact going to show that it would be against good conscience to allow a recovery on the judgment. 34 C. J. 1090, 1111, 1112. In a suit on a foreign judgment the defendant is entitled to plead payments made since the rendition of the judgment as a counter-claim. Roberts v. Pratt, 158 N. C. 50 (73 S. E. 129).

The plea and answer as amended alleged that the judgment sued on “has been fully paid off and discharged in all of its terms and implications both legally and equitably.” The allegations of the plea and answer as amended set up facts tending to show that the defendant had partly complied with such decree and partially satisfied it, and that the plaintiff was not entitled to recover the full amount provided for in such decree. While a foreign decree may not be altered or modified by the courts of this State, it may be interpreted and effect given to its legal intendment by a court of this State in which an action is brought to enforce such decree. The decree sued on awarded an absolute divorce to the plaintiff and to the defendant. It appeared from the recitals thereof that there were three minor children, the issue of the marriage, and that the plaintiff and the defendant had entered into an agreement or stipulation as to '“alimony and maintenance” of the plaintiff and such children. The decree provided that the defendant “in accordance with the stipulation” should pay to the plaintiff the weekly sum of $30 “as and for her own support, and for the support, maintenance, and education of said minor children.” The decree further provided that in the event the plaintiff should marry the weekly payments should be reduced to $22.50 per week, “which shall continue as long as said minor children should live, provided, however, that if any one of said minor children shall reach the age of twenty-one years, or shall marry,” then such weekly payments shall be reduced by the sum of $7.50. Properly construed and interpreted the intendment of the decree is that the defendant shall pay to the plaintiff $30'per week, $7.50 to her and for her use, and $22.50 or $7.50 for each of the three minor children. It appears from the allegations of the plea and answer as amended that the plaintiff abandoned and deserted the children, and that the defendant rescued them and has since, in effect, paid directly to them for their support, maintenance, and education an amount equal to more than $7.50 per week for each child. Where a judgment or decree is payable to one for the use and benefit of another, and it appears that the beneficiary has received that which was due him under the decree, the law will not require the person paying the money to the real beneficiary to answer to the nominal party therefor. See Allen T. Napier, 144 Ga. 38 (85 S. E. 1013). The plaintiff, as to the $22.50 weekly, was a party to the judgment for the sole purpose of collecting this amount for the education, maintenance, and support of the children. Kirby v. Johnson, 188 Ga. 49 (2 S. E. 2d, 640).

The decree necessarily contemplated that the mother should continue to act in the capacity of mother and custodian of her children, and there is even a presumption that after such a decree which awards the custody of children to her she continues to be their custodian. Kirby v. Johnson, supra. This presumption may be rebutted, and where the mother has voluntarily put herself in a position where she is not entitled to receive alimony awarded to her, as by a remarriage (White v. Murden, 190 Ga. 536, 9 S. E. 2d, 745), or where she is not entitled to receive it as trustee for her children by abandoning the trust, such facts may be set up as an equitable defense to her suit on her judgment. It is true that a husband and father may not evade payment of alimony for the support of children by payment to one other than their authorized custodian, as provided in a decree, but here the mother is not the custodian because she has abandoned her trust.

It follows that the court did not err in overruling the demurrer to so much of the plea and answer as amended as alleged that the mother had abandoned the children and that the defendant had assumed custody over them and supported them since their desertion by their mother.

The plea and answer as amended did not constitute a collateral attack on the validity and regularity of the decree sued on. There is no effort made by the defendant to set aside that decree. There is nothing in the present case which conflicts with the rulings in Hood v. Hood, 143 Ga. 616 (85 S. E. 849), Schulze v. Schulze, 149 Ga. 532 (101 S. E. 183), and Tompkins v. Cooper, 97 Ga. 631 (25 S. E. 247). This case does not constitute an effort by the defendant to modify the provisions of the Florida decree as to the payment of the weeHy instalments therein provided for.

Judgment affirmed.

Sutton and Felton, JJ., concur.