114 So. 813 | Miss. | 1927
Touching the facts briefly, but sufficient to understand the decision, the appellee, Paul Gammill, married the appellant, Cherie Fanchier, in 1925, in Hinds county, Miss. After they removed to Reno, Nev., Paul Gammill filed suit for divorce, and his wife cross-complained, praying for a divorce and alimony; and a written agreement with reference to property rights of the wife was entered into between the parties, wherein the husband agreed to pay the wife one hundred dollars per month as alimony if the decree for divorce was granted by the court; and the agreement further provided that the sum of one hundred dollars should be paid monthly, without increasing or decreasing the sum, so long as Mrs. Gammill should remain single. This agreement was exhibited to the court in Nevada, and was approved by the court which granted the divorce and the alimony in favor of the wife.
The substance of the agreement between the parties was embodied in the decree of the Nevada court, and, in part, is as follows:
"It is further ordered, adjudged, and decreed that plaintiff pay to defendant the sum of one hundred dollars ($100) each and every month, beginning with the 20th day of June, 1926, and payable each and every month thereafter on the said date for her support and maintenance until she remarry, in full settlement of all property rights, and also her right to maintenance and support, said amount not being subject to change.
"It is further ordered, adjudged, and decreed that defendant may be and she hereby is permitted to resume her maiden name of Cherie Fanchier."
Soon after the decree for alimony and divorce was rendered by the Nevada court, the parties returned to Mississippi, where they now reside. *736
Upon failure of the husband, Paul Gammill, for eight months, to pay the one hundred dollars per month as alimony to his wife, this bill was filed to establish and enforce the Nevada decree for alimony by and through the court of equity of our state. There was a demurrer filed to the bill, which was sustained by the chancellor; hence this appeal. The demurrer presented many grounds for dismissing the bill, and we may say, at this juncture, that we do not find in any of the grounds presented sufficient merit to warrant a discussion of the points, except one, which is the main question in this case, and which will be referred to herein later on.
Here are some of the points presented by the demurrer which we do not think are maintainable, and we shall not discuss except to call attention to them:
(1) It is contended that the decree of the Nevada court was interlocutory and not a final decree; (2) that the bill failed to state that the appellee was able to pay the installments of alimony; (3) that the bill does not allege that the complainant is still a single woman; (4) that the bill does not state that the Nevada decree is still in force and effect and unappealed from; (5) and, finally, that the chancery court of our state has no jurisdiction in the matter, because the decree of the Nevada court amounts to no more than a judgment at law.
None of the points, except this last one above, are sufficiently meritorious to discuss, because all of the things that the appellee contends the bill ought to have charged are negative matters to be set up and shown by the defendant; but the last point above mentioned will now be discussed:
The question presented, which is a new one in this state, is whether or not a decree of divorce and alimony rendered by a foreign state court can be established and enforced by and through courts of equity in our state, or whether such a decree for alimony granted in another state can be enforced only by execution as a judgment at law, when brought from a foreign state into our state. *737 This question is well argued by counsel, and there are many decisions cited of other states, as well as the Federal courts, and it seems there is a division of opinion by the different courts as to what is the correct rule with reference to the establishment and enforcement of the judgments or decrees for alimony granted by the courts of foreign states.
We have tried to carefully review these decisions and determine which we think would be the better rule to announce as the law in our state, and we have come to the conclusion that a decree for alimony granted by a foreign court may be established and enforced by and through the equity courts of our state, and that our equity courts may assume jurisdiction of the alimony decree and establish and enforce it, and that therefore the decree of the chancery court sustaining the demurrer to the bill herein was error which must result in reversal.
It is our view that, on account of the character of a judgment for alimony, which rests, to some extent, upon public policy, in requiring a husband to support his wife and children, due to the sacred human relationship, and that they may not become public charges and derelicts, the decree for alimony, with the extraordinary power of enforcement by attachment and contempt proceedings, should be established and enforced by our equity court, which has full and sole jurisdiction of all matters of divorce and alimony; because to hold that a foreign judgment for alimony can be enforced in this state only by execution, the same as judgments at law, would be to impair or to deprive a foreign judgment for alimony of its inherent power of enforcement by attachment and contempt proceedings. Thus, as we view it, to so hold would be to disregard the "full faith and credit" clause of the Federal law, which we interpret to mean that the judgment, with its peculiar right of enforcement, as one for alimony, should be established and enforced by the equity courts of our state in the same manner, and to *738 the same extent, as it could have been enforced by our court if originally obtained in our state.
A judgment or decree for alimony carries with it a special power and right of enforcement not given in judgments at law. There is a difference between a judgment for money or property and that of a decree for alimony; and the decree for alimony, because of such difference in the character of the obligation, may be enforced by more efficient and effective means than those given to the enforcement of judgments at law. Why should this extraordinary right of enforcement, due to the character of the judgment, be destroyed and annulled in its power, when it is attempted to be established and enforced in our state upon a decree rendered in a foreign state? An insolvent husband would become immune from the alimony decree if such was the law. It would amount to a partial sterilization of the force of the judgment for alimony.
There can be no sound reason for such a view. We should not hold that all foreign judgments are alike when it comes to enforcing them in our state, and that execution on a judgment at law is the only method that can be prosecuted, even though such foreign judgment be one for alimony; that such judgment cannot be enforced by proceedings to attach or cite defendant before the court to show cause why he should not be punished for contempt in failing to carry out his obligation to pay alimony to his wife, as solemnly decreed by a court of competent jurisdiction. Such a view is not the better one; and, while there may be respectable authority to support it, we decline to follow it and shall adopt that rule which allows the enforcement of a foreign decree for alimony in the same manner that it could have been enforced, if originally obtained here, to-wit, by attachment and contempt proceedings in the chancery court of our state. The following authorities bear on the question involved, and are cited for that reason: Williams v. Williams,
The decree of the lower court is reversed and the cause remanded.
Reversed and remanded.