Nissen v. Miller

642 S.W.2d 428, 1982 Tenn. App. LEXIS 496
CourtCourt of Appeals of Tennessee
DecidedAugust 17, 1982
StatusPublished
Cited by8 cases

This text of 642 S.W.2d 428 (Nissen v. Miller) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nissen v. Miller, 642 S.W.2d 428, 1982 Tenn. App. LEXIS 496 (Tenn. Ct. App. 1982).

Opinion

OPINION

FRANKS, Judge.

A Colorado judgment based on arrearag-es of child support under a Colorado divorce decree was filed in the Chancery Court for enforcement pursuant to the Uniform Enforcement of Foreign Judgments Act. T.C.A. 26-6-101, et seq. The Chancellor ordered the judgment enforced in this state and defendant has appealed.

The issues on appeal are whether a previous proceeding pursuant to the Reciprocal Enforcement of Support Act, T.C.A. 36-901, et seq. wherein the Tennessee Court entered an order of support effectively modified the original order of child support, and whether the Colorado judgment admittedly entered without any notice to defendant is entitled to full faith and credit in this jurisdiction.

The original Colorado decree provided for $200 per month child support payments. In 1977 plaintiff filed a petition for enforcement in Colorado. The Knox County Circuit Court responding to the petition ordered defendant to pay $10.00 per week as child support.

The issue of the effect of a U.R.E.S.A. support order on the original order of support was decided in Hester v. Hester, 59 Tenn.App. 613, 443 S.W.2d 28 (1968). In Hester, the parties had obtained a Georgia divorce decree which set monthly child support payments of $600 per month. The wife filed a U.R.E.S.A. petition after the husband moved to Tennessee and defaulted on payments. In the U.R.E.S.A. action, the Tennessee court required the defendant to pay support of $450 per month. Another action was begun by the wife in Tennessee to recover a deficiency in alimony and in child support under the original Georgia order. The Circuit Court denied recovery; however, on appeal, this Court reversed, and said:

Upon first consideration we were inclined to hold that by instituting and receiving the benefit of the reciprocal support judgment, plaintiff had impliedly consented to a reduction in child support from $600.00 per month to $450.00 per month. T.C.A. 36-926, however, expressly provides that a judgment for support under the Reciprocal Enforcement statute shall not supercede “any previous order of support or separate maintenance action.” The terms of the statute being directly applicable must be given effect. Id., at 621, 443 S.W.2d at 32.

The majority of courts in other jurisdictions hold U.R.E.S.A. orders do not supersede prior support orders. See e.g., Despain v. Despain, 78 Idaho 185, 300 P.2d 500 (1956); Howard v. Howard, 191 So.2d 528 (Miss.1966); Campbell v. Jenne, 172 Mont. 219, 563 P.2d 574 (1977); Foster v. Marshman, 96 Nev. 475, 611 P.2d 197 (1980); Oglesby v. Oglesby, 29 Utah 2d 491, 510 P.2d 1106 (1973).

As to whether a court may increase the amount of support in a U.R.E.S.A. proceeding, courts are divided. Compare State ex rel. Nebraska v. Brooks, 34 Or.App. 975, 580 P.2d 206 (1978) (may not increase) with Abb v. Crossfield, 23 Md.App. 232, 326 A.2d 234 (1974) (court may increase support payments). We have adopted the rule that support payments may be increased in a U.R.E.S.A. Petition. In Koehler v. Koehler, 559 S.W.2d 944 (Tenn.App.1977), the Arizona court granting the divorce established child support payments of $50 per month. Subsequently, the wife moved to New York and filed a U.R.E.S.A. petition there. The New York court certified to Tennessee [430]*430where the husband was living, having determined that the amount of support needed was $75 per month. The trial court ordered payments of $75 per month. This Court held the trial court had jurisdiction to increase the payments.

In Koehler, the trial court also rendered judgment against the husband for $2,100 arrearages on the Arizona decree. The Koehler court held that judgment for the arrearage was within the jurisdiction of the court.

As to the right to render judgment for the arrearage of $2,100.00, while there was not a specific prayer in the petition for a judgment in the Tennessee Court for the arrearage, the allegation was made that such arrearage did exist and the respondent specifically admitted that such arrearage did exist and stated that the amount of the arrearage was $2,100.00 but insisted that he was entitled to a credit of $325.00 for having paid $25.00 a month over and above the amount required by the Arizona decree and we are inclined to agree that he is entitled to a credit of $325.00 as insisted by him. However, this will not affect the $75.00 a month payments under the Tennessee decree and he will not be entitled to additional credits on the arrearage by paying the $75.00 a month as ordered. Id., at 950.

Defendant argues in Koehler the Tennessee Court had authority “to modify the amounts of support currently due after its hearing so as to eliminate additional arrear-ages from the original amount.” However, there is no indication the $2,100 represented a reduction in the amount in arrears. Defendant testified he owed $2,100, 559 S.W.2d at 948, and the judgment was entered in that amount. In Koehler, the Court left intact the Arizona judgment, in accordance with the Act. Defendant is not relieved of liability on the original divorce decree by virtue of the County Circuit Court order.

On the remaining issue, in December 1980 plaintiff filed a motion to reduce to judgment the $34,800 arrearage under the original Colorado decree. No notice was given to the Defendant and judgment was entered. In order to utilize the enforcement procedures of the Uniform Enforcement of Judgments Act, the judgment must be one which is “entitled to full faith and credit.” T.C.A. 26-6-103.

The Chancellor ruled the Colorado judgment must be enforced if it is not subject to modification and therefore a final judgment. See Schmidt v. Schmidt, 493 S.W.2d 720 (Tenn.1973); Rasnic v. Wynn, 625 S.W.2d 278 (Tenn.App.1981).

In ordering the judgment enforced the Chancellor relied on Burke v. Burke, 127 Colo. 257, 255 P.2d 740 (1953) which held that each installment of support becomes a final money judgment as it becomes due and Jenner v. Jenner, 138 Colo. 149, 330 P.2d 544 (1958), which held notice to defendant was not necessary to reduce past due installments to one judgment.

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Bluebook (online)
642 S.W.2d 428, 1982 Tenn. App. LEXIS 496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nissen-v-miller-tennctapp-1982.