4 P.2d 623 | Cal. Ct. App. | 1931
This is a suit by Josephine Park Tearle for the sum of $9,932.50 admitted to be unpaid alimony awarded her under a decree of divorce in New York.
The cause was tried by the court sitting without a jury upon an agreed statement of facts. Judgment was ordered for the plaintiff and defendant appeals upon typewritten transcripts. Pending the appeal Mrs. Tearle died and her administrator has been duly substituted in her stead. We may continue to refer to her herein as the plaintiff in the action. Plaintiff obtained a decree of divorce from defendant in the state of New York on November 21, 1912, wherein plaintiff was awarded alimony in the sum of $25 each week thereafter; on May 9, 1921, plaintiff obtained a second judgment in the form of a modification of the decree wherein she was awarded $75 each week thereafter; on March 21, 1928, plaintiff obtained a third judgment in the same form in which she was awarded the sum of $100 each week thereafter. The record discloses no modification and no proceeding to modify any one of these judgments. The trial court found that "there is now accrued, due, owing and unpaid" under said judgments $9,932.50, and that under the laws of the state of New York such judgments were not subject to modification as to accrued and past due installments.
[1] Defendant and appellant contends that the judgments are not final under the laws of New York as to accrued and unpaid payments thereunder because the court which rendered those judgments had the power to modify them at any time, and that only a final judgment is within the full faith and credit clause of the federal Constitution.
Upon the first point the New York law as interpreted by the courts of that state is not in accord with appellant's contention. In Krauss v. Krauss,
Upon the second point, that a judgment of this character is not a final judgment within the full faith and credit clause of the federal Constitution, the rule contra is equally well settled, first in Sistare v. Sistare, supra, p. 17; Caples v.Caples, 47 Fed. (2d) 225, 226; Cummings v. Cummings, supra, p. 151; Rickenberger v. Rickenberger, supra, p. 48 et seq.
We find no error in the record. The judgment is affirmed.
Sturtevant, J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on November 27, 1931, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 24, 1931. *699