*1 January 28, In Bank. No. 5405. 1941.] [Sac. BIEWEND, Respondent, BIE C. LOTTIE C. ADOLPH
WEND, Appellant. *2 Hogan Appellant. Gumpert Mazzera and H.C. & Ep- Edwards and Chas. H. Snyder, Lawrence Nathan H. Respondent. person for divorce in decree of Plaintiff secured
TRAYNOR, J. provided that defendant May 10, 1918, which on Missouri their support of herself per for the $25 her week pay parties were before children. Both four minor Subsequently they came to jurisdiction. subject to its *3 original decree divorce date of the Between the California. all bringing this action time in Missouri and the plaintiff majority. Meanwhile children reached their minor again she which time after married and divorced a second 1938, In years. four period of with defendant for a lived Superior in the brought upon plaintiff suit County, recovered a Joaquin Court of San which payment installments ordering only of those beginning of years prior to the had accrued within five per from the week payment $25 to her of action but also this from appealed judgment. Defendant has date judgment. payment money
An order for the as ren competent jurisdiction dered a court of in one state must recognized by all other states under the full faith be States clause of the United Constitution as to credit all ac subject installments not crued modification the court (Sistare Sistare, rendering original 1 order. v. 218 U. S. 682, ; Lynde Lynde, 54 L. Ed. 181 Sup. Ct. v. U. S. 905] [30 555, Sup. ; 45 L. Barber, Ct. Ed. Barber 183 v. 810] [21 How.) (21 ; Goodrich, 582 L. Ed. 62 U. S. Conflict [16 226]
Ill 135; Restatement, ed.], Laws I. Conflicts sec. A. L. [2d App. (2d) Pac. Barns, 427 Laws, Barns v. 9 [50 sec. Cal. (2d) Pac. ; Tearle, (2d) v. 7 48 (2d) Bruton Cal. [59 463] Thomas, (2d) 355 580]; 14 Cal. 953, 106 A. L. Thomas v. R. App. (2d) 569 ; Spalding Spalding, Cal. Pac. v. 75 [94 810] App. Rinkenberger, Rinkenberger 99 Cal. ; Pac. v. [243 445] Frank, Acceptance 45 Co. v. ; Pac. Mercantile [277 1096] Palen, 696]; 190, 203 483 L. Palen v. Cal. Pac. 57 A. R. [265 Creager ; 12 App. (2d) (2d) 357 v. Su Pac. 228] [55 ; Court, Dreesen perior App. (2d) 126 Pac. 552] [14 Hand Dreesen, (2d) 223]; v. App. 31 Cal. Pac. (2d) [88 Pac. Handschy, schy App. 32 Cal. [90 Pac. ; Cummings App. Cummings, [275 123] 245]; (2d) 474 Morrow, Morrow v. [105 (2d) 129].) Only if such subject accrued payments still are modi “ may
fication
recovery
Calabrese,
be
(Bentley
denied.
Misc.
N.
Supp.
;
Y.
Weston, 177
[280
Weston v.
454]
241]; Page
La. 305
Page,
So.
[148
N. E.
Mass.
92,
296];
4 Ann. Cas.
Bleuer v. Bleuer,
It is well settled that once a valid judgment has been it must be full rendered accorded faith by every and credit though the other court within United States even the cause 112 against upon based the action which the was policy of state in which enforcement .public
law and
Lum,
Sup.
sought.
(Fauntleroy v.
210
S. 230
Ct.
U.
[28
641,
McDonald,
52
449
;
Ed.
Roche v.
275 U.
L.
S.
1039]
142,
Sup.
;
County
Ct.
L. Ed.
Milwaukee
v.
72
365]
[48
Sup.
229, 80
M. White
113 yet upon proper application good due showing cause (Sec. the defendant 1355, Revised Missouri [1929], Statutes I, p. 567; Niedt, (Mo. vol. Niedt App.) (2d) v. 104 S. W. 692; Meyers Meyers, App. v. 91 Mo. 151.)
Upon
however,
distinguished
the basis
comity,
of
as
from
requirements
full
credit,
of
faith and
the California courts
have in
foreign
numerous cases ordered
a
that
decree for
future
of
be established as the decree of
the California court with
same
force and effect
if
as
it had
state,
been
in
including punishment
entered
this
contempt
(Palen
if
comply.
Palen,
the defendant fails to
v.
12
App.
Cal.
(2d) 357
(2d) 228];
Pac.
Creager v. Su
[55
perior Court, supra;
Straus,
Straus v.
4
461
(2d)
(2d) 218,
Pac.
42
(2d)
; Cummings
[41
Pac.
v. Cum
378]
mings, supra;
Tearle,
Bruton v.
7 Cal.
48
Pac.
[59
953,
also,
106 A. L. R.
; see,
Morrow, supra.)
Morrow
580]
v.
comity
subject
Such rule
a
principle
to the
foreign
given
will not
laws
be
effect
contrary
when
to the
public policy
(Estate
settled
of the forum.
165
Lathrop,
;
Cal. 243
Whitney
Dodge,
105
192
v.
[131
752]
; Blythe
Ayres,
915,
96
[38
v.
Cal. 532
636]
[31
;
19 L. R. A.
Pearson,
v.
Pennoyer
Pearson
120;
51 Cal.
40]
Neff,
v.
95
714
Buskirk,
U. S.
;
L. Ed.
Green v. Van
[24
565]
72
(5 Wall.)
;
U.
Bank,
S.
307
Ed.
L.
Smith Union
[18
599]
Pet.)
(5
30 U. S.
518
;
L. Ed.
422;
Jur.
12
212]
439.)
C.
clear, however,
J.
must be
that the enforcement
right
obtained under the laws of another state would
prejudicial
recognized
be
of morality
standards
general
interests of the
citizens
the state of
forum.
(Dennick
J.,
v. Central R. R. Co. N.
11
U. S.
;
L.
Minneapolis
Ed.
Herrick v.
&
Ry. Co.,
439]
St. L.
413,
Minn.
N. W.
Rep.
47 Am.
771];
Powell v. Great
Co.,
Ry.
Northern
Minn.
N.
;
W.
Loucks
1017]
Y.,
v. Standard
Oil Co. N.
N. Y. 99
;
N. E.
McAdam,
International Harvester Co. v.
In the case Missouri the law differs from that of permitting alimony payments California in to continue after remarriage (Gunderson the of the wife. v. divorced 4 Gunderson, (2d) 956].) App. Cal. 257 Pac. [40 Such right a to receive future alimony, installments of how ever, though even at with Code, variance Civil section is perforce not It public policy. inharmonious local with offers no threat to either general the moral standards the or right interests of the of citizens this state. To hold that the created in Missouri is so immoral as to be unenforceable complacent here would involve a attribution moral su of periority remarriage coming this state. The of and the age of the minor grounds children offer of for modification original decree appli for which the defendant can make jurisdiction cation in the original court of Missouri, in it upon is incumbent the California court to refuse to give prospective effect to upon grounds. the decree these (Handschy Handschy, v. 32 App. (2d) Pac. [90 (2d) 123].) judgment Therefore, of the trial court ordering pay plaintiff the defendant per to the $25 week in the judgment future from the of date is valid and enforceable until time such as the Missouri modifies court its decree. principle
It is a recognized of conflict of laws in barring by that the a claim California of the statute of limi procedural governed tations is a by matter law forum, regardless of where the cause of action (Mc arose. Cohen, Elmoyle S.U. ; L. Ed. [13 Pet.] [10 177] Jemison, Townsend 50 U. S. L. Ed. How.] Royal MacBean, 194]; Trust Co. v. Lane, ; 58].) Miller is a brought upon corollary that an action a of a sister subject prescribed to the limitations by state is law (Stewart Spaulding, brought. where state the action 1456.) Freeman, Judgments, sec. 72 Cal. ] 661 Civil Procedure 336 of the California Code Section any judgment or decree provides upon action a an any state United the United States or within fu- years. A brought five States must be within continuing judgment. alimony ture payments of a in- gave judgment for those trial court in this case therefore years accrued within five stallments of which had action, statute prior bringing to the of the the California prior accruing having run all installments limitations on to that time. Procedure,
Section 361 of the of Civil California Code however, provides: in arisen “When of action has a cause state, by another thereof foreign country, a the laws against per an action thereon cannot maintained there be by lapse son reason action thereon shall time, of the an except against state, not be him in favor maintained in this state, of one who a citizen and who held has been of this the cause of action from the time it accrued.” This section applies only causes of action barred the law creation, (Little state of but not law of this state. page Morck, 716].) Since *7 plaintiff the not been state from the has a citizen of this accrued, time the cause of action this section has the effect applying of in the Missouri statute of limitations to those accruing years, upon stallments within Cali five which the (Stewart Spaul fornia statute of limitations has not run. ding, 72 Kuhns, Cal. 264 Van Buskirk v. 661] 587, 932, 1914B, R. A. Ann. Cas. L. (N. S.) 710].) up
Defendant therefore bar sec- sets as a to this action tion 886 of the Revised Missouri in force Statutes original plain- at the by time the alimony decree was secured provides: tiff, which judgment, “Every order decree of or any court of record of States, any the United or of this or state, territory county, other presumed or shall be to be paid expiration and satisfied after the years of ten from original the rendition thereof, the date of if or the same has upon personal duly been revived service upon had de- therein, years fendant or defendants then after ten from revival, payment and after such case a has been made decree, order or judgment, on such and duly upon entered thereof, the record expiration after years of ten from payment the last so made, and after the expiration of ten years from original the date of the upon rendition or revival personal service, or from the date payment, last such judgment conclusively shall presumed be to be no paid, and execution, process order or thereon, any issued nor shall brought, suit be had or any maintained purpose thereon for whatever.”
This section has been
right
held effective to cut off the
to continuing alimony
payment
if no
installments
made
is
upon
or action
original
taken
years
ten
within
after
(Mayes Mayes,
rendition.
Defendant under his contention alleged by California law when he plaintiff’s answer that cause action “is barred provisions Section of the Code of Civil Procedure of the State of California.” (Code Lilly-Brackett Civ. Proc., 458; Sonnemann, sec. Co. v. ) 192, 193, Ann. Cas. 1279]. court, however, expressly trial not true found that “it is judgment that said 361 of the barred Section Code of Civil Procedure Defend of the State California.” appealed upon judgment ant has roll has alone. He on showing appeal any no that introduced made evidence was proving below to sustain Ms burden that the cause of (Code by the barred statute of limitations. Civ. action was Armstrong, Bank Proc., 458; sec. First National 626.) Jur. He has upon plaintiff failed take some action shown years Every ten after its rendition. original decree within validity rendered, as favors intendment presented in the record on appeal, no evidence and if presented that sufficient evidence be assumed was must it *8 finding (Morris to its trial court sustain fact. the to Education, Board of Harvey, Archer v. Cal. 274 by that the action is barred Defendant’s contention
410].) section 361 of Procedure the Code of therefore cannot Civil be sustained. judgment of the trial court is affirmed.
Shenk, J., Edmonds, J., Peters, J., pro tem., Ward, J., pro tem., Gibson, and J.,C. concurred.
CARTER, J., Dissenting. I dissent. I concur in portion that majority opinion of the which holds that the judgment should be affirmed as those ali- mony payments which had accrued under de- the Missouri cree years within five immediately preceding the commence- ment of this action, I portion but dissent from that of said opinion purports which portion to affirm judg- ment of the trial court establishing the Missouri decree as a California requiring payments $25 henceforth of per by week the husband the although wife the Missouri award was for support wife, both the children and and the children have wife, now majority, reached and the since the decree, Missouri has remarried. is true that the second marriage has been dissolved, but when we consider that the nothing wife has done to enforce the Missouri from the entry time its during until and that time has with the years lived husband for four and been has married and time, divorced a second good considerations of morals, principles, justice, social play natural and re- fair quire a against determination that public policy it is of this state to establish Missouri decree as a California judgment requiring pay the husband in the future $25 per week to wife. It must be conceded that whether or not future under Missouri decree shall be established, entirely so lies court, in the discretion of the trial by unaffected the full faith credit clause of the federal Constitution; but it is contended that such establishment against public policy expressed of this state as legislature in section 139 Code, Civil which pro- alimony payments upon remarriage vides that shall cease “public term policy” of the wife. The as used in connection the enforcement with one state another state’s laws impossible vague precise definition, at best and it policy ordinarily public is true that a state’s is not violated merely because there is a variance in the laws of the states that before there is such a violation involved, and of the law *9 contrary state, good of the or other it must be to morals justice. natural But in this instance we have a declaration policy of in California states that a woman cannot which support look to her for and main former divorced husband tenance the wife of another man. It after she has become in undoubtedly principle is a fundamental social inherent any flourishing order, the fiber of successful social that and marriage, there the home life and families that and flow from, encouraged to times. are be fostered and at all alimony after law that relieves a man from further encourages remarries, to only bis wife not man divorced á remarry family he and rear because establish a home and a wife, supporting of his first relieved of the burden but remarriage a majority in the will make of instances his possibility; whereas, circumstances, it would due to economic support. question, be out he former wife to if has a justice and necessarily follows, therefore, natural that by principles are and fundamental social advanced secured any and policy in our Civil Code declared section of public in contrary policy of law to the is a violation comity should not be counte volved in the doctrine of and injustice to the There is caused by nanced this court. no she her time, woman. marries the second takes When she worse, companion in chooses, for better and and new justice look him and him for her maintenance. should to alone per obligation, be should be relieved from this nor He not expense of ease at the to live a life of and idleness mitted husband, at only toil the first but also the efforts and of making impossible greater economically it cost of the much remarry. The decision cites Hand first husband for the 123], App. (2d) 504 Handschy, 32 Cal. schy v. it, supporting rather than that decision its but position, for public against of that, policy it states unequivocally which a sister state divorce decree enforce California remarriage. alimony In the payment of after requires the ‘‘Appellant 509: contends also page it at is said cited case age the amount of children are that as ipso reduced to the extent that the same was awarded facto maintenance, support, and that the trial for their provided refusing him accordingly, to allow credit al in erred had been made of the decree of the modification though no appellant support in authority Tilínois No is cited court. any. found There are cases where contention, nor have we his mainte support an accrued installments award for cancelled, the nance and minor children were wife for wife age, but having remarried and the children become remarriage was is clear cases it those wife principal court, being held it factor considered support require that to main pay a husband to remarriage wife, following tenance his her divorced another, conditions, extraordinary would in the absence of recognized against violate a principle sound be law and public policy. (Hale Hale, *10 Atlass, Atlass 53].)" do certainly Here would age, the children and it are justice violence to policy our on natural state founded permit basic social principles the establishment Missouri requiring appellant to make portion wife the future. of the trial declaring court so should be reversed. No. January 29, A. 17588. In Bank.
[L. 1941.] E. STALEY, JOHN Petitioner, v. THE STATE BAR OF al., Respondents.
CALIFORNIA et