*2 CLARK, Circuit Judges PRETTYMAN and PROCTOR concur: this case United States District District of for the Columbia denied a divorced wife’s motion that her former contempt failing husband be held pay alimony court had thereto- her; fore decreed to award refused to her “money judgment” against him for installments had become unpaid, despite due and were the fact original under which the install- decree ments been accrued never modified set aside. appeal
The wife’s from the District presents ques- action the following Court’s important jurisdic- tions which tion: May trial court in its discretion punish one
refuse to who dis- pay obeys alimony; so, its order if properly exercised, abused, the discretion case? directing Is “money in itself a judgment,” originally or with either to each due; installment as becomes or is there money enforceable in the to County the files” in Georges Prince until, wife’s favor of in- party the accrual has not been calendared either stallments, an been additional decree has Kephart orig- In 1949 Mrs. entered thereon, entered awarding judgment pur- *3 inal divorce action suant to accompanied her motion therefor appeal. gave rise to this She motion by a showing of the amount which has be- contempt asked judg- for citation and for a come due paid? and which has not been ment arrearages for accumulated of ali- Having alimony paid awarded to be mony $8,100. in the sum of periodically, has the District Court appellee responded appellant’s to remit installments though motion as it were an order show thereof which pay- have become due and opposition cause. his own affi- He filed able? Georges davit that he removed to Prince questions, Before discussing these we remarried; County, Maryland, and there history shall relate the of the case. Some sons; he his second wife have two years ago fifteen granted District Court that in younger when the of the two Kephart divorce to Irma N. and ordered children first marriage of his attained her pay per husband to month for the $75 majority, he believed his former wife no support of the wife daugh- and two infant longer support needed he his financial so ters. alimony That allowance of has never making alimony payments her. ceased been modified or revoked. He until swore that from cessation еarly appel- in 1948he nothing heard days granted Four after divorce was upon lant and that made demands she appellee-husband remarried and him; May, but served he was Maryland. established a home in In new process with in the suit in the Circuit Court contempt 1937 was held in for fail- he here money Georges County of Prince for a pay alimony purged himself pay based his ali- failure to due; paying subsequently the amount then mony. He averred under oath that he was paid he occasional small amounts until currently earning approximately $5,000per 22, 1940, March paid after which date he year and pieces had “two of investment although, seen, nothing as we have property” pay- making which he was alimony award had not been modified or ments. set aside. appellee-husband Thus the asserted lach- vainly years trying several After defense, contending es that the wife’s counsel, Kephart get assistance Mrs. delay seeking to collect the arrearages, finally who attorney found an instituted suit coupled changes in his own circum- Circuit Court for her in the for Prince stances, equity constituted in bar re- County, Maryland, county Georges lief. He also asked in effect that the court residence, appellee’s to recover install- reconsider the allowance of alimony with accrued, alimony which had ments of under respect to already installments matured be- Court, the District the decree of cause the daughters two of the first mar- Kephart demurred to March riage long since come age, and be- theory complaint on the that the 1936 di- cause he had had for some time new of the District Court which vorce decree burden of supporting two minor children lacking finality awarded the second marriage. enforced in could and therefore full faith Maryland court under the It should be remembered that in denying support theory appellant’s motion, clause. credit the District (a) opinion in punish Franklin v. Frank- declined cited our he even appellee to cite U.S.App.D.C. lin, 1948, contempt court, 171 F.2d (b) refused to appellant the first time that held for the award to the “money where we judgment” authority set has aside ma- trial court installments of amounting to alimony. $8,100 Without a installments which had become tured due under the demurrer, “gone original the case has decree and ruling on the were admittеdly unpaid. support. reliance was suffi-
I
Neither
contempt.
cient to save him from
first consider whether the Dis-
We shall
trict Court has
discretion to refuse
first,
As to
held
punish
cite or
one who is de-
wife,
an allowance to a
16-411 of
linquent
and,
so,
payments;
if
Code,
“permanent
whether
correct in
re-
the court was
support
sufficient for her
and that of
here,
fusal
under the defenses asserted
minor
children whom
as
Kephart and in the circumstances shown. sign
care,”
to her
is to be
ali
treated as
mony payable
Under subsections
and 41L of
to the wife and is not con
tingent
minority
Title 16 of the District of
on the
Columbia Code
of the children.
*4
(1940),
granted
Lockwood, 1947,
the Lockwood
U.S.App.
when a divorce is
to.
wife,
authority
the court has
to decree
Miller,
F.2d
Miller v.
permanent
App.D.C. 216,
and to enforce obedi
II modify or remit installments thereof payable? which have become due and If We next consider whether the District power exists, Kep- Court was found in this denying correct in Mrs. language of “money 16-413 of the judgment” hart’s motion for D.C.Code: a § “After alimony. any a decree of covering arrearages in divorce case This granting alimony providing brings ques- us to the of and for the legal second care custody children, and tions of beginning opin- stated in of case shall open any still be directing ion: is considered decree future future respects.” orders in alimony of those money, judgment itself a or supplemented by must it judg- a new From 1916 until 1948 this court con- n ment entered for installments as ma- sistently unqualifiedly and held that ture ? modify Court cannot or vacate in- alimony stallments of which have become will.appear later, For reasons which due. We quote shall extensively from our alimony we hold that an of is award during decisions of period more than money, judgment for on which execution thirty years apparent so as to make convenient, perhaps It issue. is upon reasoning which the uniform holding certainly improper, for the court of those cases was based. judgment establishing enter new of rec Lynham Hufty, In App.D.C. ord the accrued installments are un “ * * * 589, 599, * said, The decree paid, facts when the draws the to the wife * * adjudicated is in the an nature of procedure court’s attention. But is * * * for accrued which have essential. Installments be beyond power court in [and] easily come due are calculated modify discretion to vacate it.” original of decree and a look at terms Caffrey Caffrey, 1925, App.D.C. application The wife’s calendar. accompanied was a case in which the F.2d trial execution her a writ of remitted certain non-payment court as to should move affidavit prior appeal On writ; under a decree. if an accrued the issuance issue is numbered thorize the court under the reserved court noted that what now expressly change confers so the decree as to affect the in- 16-411 of D.C.Code § past this, due. court a stallments In view of authority the trial to decree cited, permanent support authorities we hold that wife for her decree, made, modification of the if would children, upon any and that of minor operate prospectively only and hence that her; granting of a and that divorce is final installments section now numbered 16- Code which is alimony in arrears.’ provides that, after a decree of divorce alimony, case shall award of “the not, language “The section 978 open still be considered view, clothe the court with the respects.” Caffrey orders in those exercised in this than case. does more said, therefore, opiniоn question, then “The the court, change, authorize as conditions prospective is whether this reservation pay- alter or its decree as to future question retroactive.” It answered ments, ruling as was effect of the holding that the reservation Phillips Kepler.” only, prospective in such cases Biscayne Co. Trust v. Amer App.D.C. doing pages said so in 44 at Security Co., App. ican & Trust page at 952: F.2d 20 F.2d is to the same effect. said, page that case this at court question think this is determined “We 57 App.D.C., page 269 of F.2d: App.D. Phillips Kepler, 47 our decision in “ * * * It is now late for the too 384,387. In that case a divorce had been C. to set aside or reduce these sums [install com- granted wife a Nebraska court ments which had become due *6 petent in jurisdiction, the decree to be unpaid]. and Phillips Kepler, were v. 47 only force ‘until the further order’ of App.D.C. Caffrey In Caffrey, v. 55 that court. In this court it was contended App.D.C. 285, 952, 4 F.2d it was held past the decree as installments was not to this court that 978, sections and 976 final, against ‘The contention said: Code, authorizing the court’s allowance finality is of the decree based permanent alimony, providing that, and requiremеnt says provision which any a decree of grant case divorce only alimony “un- touching the is to endure ing alimony, the case ‘shall still be consid order” of the court. But this til further open any ered orders in further those finality disprove to install- not as respects,’ operates only prospectively, and may past no doubt ments due. The decree not retroactively, and the court is without pay- as altered the court to future authority to remit overdue that, ments, suggestion in it but there is no showing personal arose from default matured, to the installments which have it injuries resulting incapacity to work.” v. not final. In the Sistare case [Sistare question The arose v. same Lockwood 13, pages Sistare, 1], 218 17 S.Ct. U.S. [30 Lockwood, 1947, U.S.App.D.C. 106, 82 105, was held that a decree 905], it 682, 54 L.Ed. 923, 924, 160 F.2d which we said: “operated 'cause before us the one like “ * * * It is juris- well settled in this wife’s) her (the to arise indebtedness diction that the trial court without fell installment as each favor past a revision remittance effect exerted, modify, if power to due, and alimony.” due prospectively.” If we only operate would Cole, 1947, U.S.App.D.C. 82 obtains v. the rule which Cole may reason 885, 155, 883, construction, 157-158, effect 161 F.2d a retroactive statutory is of true the exercise of said: “'It course that when the in- given decree, be paid the lan- ordered to unless stalments recast a pendente payable choice. lite became due and power leaves no defining the guage Co., order, Sugar Ref. became terms fixed American United States 717, 563, due to obligations the wife she 26 S.Ct. 50 U.S. L.Ed. 202 able, by appropriate some proceedings, been be nor decision has Nebraska statute No Supreme said collect. Court in Sis- which would au- attention brought
683 contempt 686, husband m 682, refuse to hold the Sistare, 1, 30 S.Ct. tare v. 218 U.S. authority to remit (b) and did 905, L.R.A.,N.S., 20 Ann. 1068, 54 L.Ed. 28 * * * had accrued alimony unpaid installments which 1061, that ‘where Cas. * * * decree which divorce instal- the wife under the payable in future is made also re We stands modification?” becomes without ments, right to such instalments ” present briefs quested amici curiae “to upon becoming due.’ absolute vested and merit question fully discussing it, thoroughly established Thus was Franklin.” of the decision in Franklin v. cannot trial court that the request, Messrs. Burnett Pursuant to our alimony, until past due rescind separately, filed working and Franklin, supra Boardman, the case of Franklin v. [83 participаted in the exhaustive briefs and 385, 12], de U.S.App.D.C. F.2d argument extensive oral of this cause. District Court cided in 1948. There the argued and Both reached the conclusion defaulting declined hold the husband authority us the District Court has give and declined to to the wife unpaid to remit installments of money judgment for ar “a accumulated estop which have matured under a divorce rears,” grounds on the of laches modified, which has not been and that our pel. affirmed, saying This court that suits decision in Franklin v. Franklin should regarded in the for maintenance have been overruled. The court is indebted to the equitable rather Columbia helpful amici curiae for their able and con- legal than the trial court had exer tributions. equity. cised the discretion of a court of “* * * opinion said: Barber v. Sistare, 1910, 1, Sistare 218 U.S. ** * Barber, 226, How. 16 L.Ed. leading S.Ct. L.Ed. Sistare, Sistare U.S. 30 S.Ct. subject. on the There the * * * 54 L.Ed. do hold cases, previous considered two Barber v. formerly that a court issued an order Barber, 1858,21 How. U.S. must, regard maintenance or the like Lynde Lynde, 1901, L.Ed. 226, and 181U. equity good conscience, less of enforce S. de- L.Ed. years of accrued installments later. there cided is no conflict between them. *7 Phillips App. Thosе cases Kepler, and Supreme In the case the Sistare only hold that other should courts held, page of at pages at 16 and 17 218 U.S. enforce such if court Lynde S.Ct., effect 686 of 30 that the of the issued the order would do so.” “ * * * First, and Barber cases was: opinion The added that Caffr'ey, Bis- that, a is generally speaking, where decree cayne Trust and Co. Lockwood cases “rest payable alimony rendered and is made on a misunderstanding of the earlier cases installments, right to such in- in future and should be overruled.” up- absolute and vested stallments becomes in is thus seen that Franklin v. Frank- due, protected becoming is therefore and departed long from a established lin we provided by clause, faith and credit the full pertinent provi- interpretation of Code no of the has been made modification decree presented question again by is sions. The installments, prior maturity of the to the bar, by was first heard a case at case, since, ‘ali- declared the Barber as panel judges in the usual three manner. of sep- in a mony decreed to a wife divorce importance matter is of such Because the bed and board is arаtion from as much a jurisdiction, and because some of us record, until the decree has been debt thought decision in Franklin case our money recalled, any judgment for other re-examined, sponte court sua should Second, rule, however, general That this is.’ rehearing en banc. ordered a where, by the law of the does not obtain judgment future rehearing before the which a ali- full State in to the Prior Burnett, Esq., mony right rendered to demand and appointed H. is court, we John alimony Esq., discretionary is Boardman, M. amici receive such and Jean decree, them which rendered the requested to discuss these the court with curiae no or properly did the trial such an extent that absolute vested questions: to “!(a) 68á due, provided
right
no modifica-
attaches to receive the installments
it becomes
when
to
prior
tion of the
made
paid,
ordered
to
even al-
decree had been
the decree
maturity.
though
application
modify
Each installment which matures
to annul or
respect
a
has
been modified
alimony
decree in
to
had been under decree which
not
any
to
prior
becoming
judgment
made
becomes
to the installmеnts
a
debt similar
money.
original
judgment
other
The
due.”
is
decree
in character
to
final
(cid:127)
with
that under
Court' decided
each matured installment and so cannot be
court in that
New York statute
trial
challenged
here
power modify
state did
or
not have
to
set
challenged
Execution
elsewhere.
is-
an
aside
installment of
after it
upon
unnecessary
sue
it. It is
to
therefore
course,
due. It
noted,
become
original
“money judg-
seek in the
action a
New York statute authorizes
court to
ment,”
upon
although,
made
showing
to
annul, modify
vary
or
the court of the
amount
matured
at
final
judgment,
time after
unpaid,
installments which remain
application
party
due notice
of either
improper
District Court
certain,
But the Court was
other.
note of record the amount which is then
page
at page 22,
U.S.
“
original judgment.
* * *
due
language
in this
nothing
expressly
gives
[of
To
statute]
the extent that it
in conflict
with
revoke
an installment of
or
views,
these
Franklin v. Franklin is over-
making
prior
which had
accrued
ruled. The
reversed
remanded
vary
modify,
application
for proceedings
conformity
herewith.
every
implication
be re-
reasonable
Reversed and remandеd.
against
the existence
sorted
language
of clear
the absence
FAHY,
Judge, concurring in
Circuit
it.”
intention
confer
manifesting an
part.
dissenting
statement
regard
as the
We
remand.
concur in reversal and
I
such statutes.
construction
a rule of
had,
proceedings
further
which should be
16-413 of
it,
nothing
find
Applying we
however,
my opinion
entirely
are not
us
justify
which would
the District Code
opinions
those indicated
written
Congress intended
Dis
holding that
Washington.
Judge
Miller and
I
Judge
any power
with
to deal
Court to
trict
agree
Judge
Miller as
instal
except
installments
matured
prior
the time
ments
accrued
fact,
payment thereof.
enforce
respectively,
age.
came of
children,
minor
n languageof
provision falls fur
Code
obligations,
These
fixed
than
holding
justifying such
*8
ther short of
debts,
of
no modification
the amounts hav
which the
the New York Code
did
of
sought
been
or made
to the
prior
time
to war
found insufficient
Supreme Court
such instalments became due. To the extent
rant it.
1948,
Franklin,
U.S.App.D.C.
Franklin v.
departed
Supreme
never
Court has
12,
171 F.2d
is inconsistent with
385,
case,
principles
but
of the Sistare
from the
view,
overruling
in
that case
I concur
and
Griffin, 1946,
has reaffirmedthem. Griffin
by
rule
down
reverting to
laid
the
in
556,
L.Ed.
220,
S.Ct.
327 U.S.
by
in
earlier cases referred
the
1933,
Yarborough,
290 U.S.
Yarborough v.
Such indication of a differ
Judge Miller.
181, 78 L.Ed.
202,
might
gleaned
ent view as
therefore,
in the still earlier cases of Tol
conclude,
statements
We
224,
Leonard, 1895, App.D.C.
modify or remit
in-
and
man v.
cannot
here
Court
Alexander,
App.D.C.
they
1898, 13
alimony after
have Alexander v.
of
stallments
806,
my
in
original 334,
insufficient
45 L.R.A.
terms of
by due
become
a different result.
payment. opinion to
This is
lead to
ordered their
judgment which
approach
of
alimony payable especially
in
taken
so
view
awards
a decree
When
question
to’
of
installments,
right
to each
Sistare,
statutory construction
Sistare
vested
absolute and
becomes
installment
time, namely,
passage of
905, end
the mere
with
L.Ed.
682, 54
1910, 218 U.S.
30 S.Ct.
In these circumstances
the care of minors.
v. Sistare
references to Sistare
and the
set
equitable
considerations
policy
and
Barber,
of Barber
the later cases
Franklin,
and
forth in Franklin v.
L.Ed.
65 S.Ct.
U.S. of
opinion
in favor
Judge Washington,
of
220, 66 S.Ct.
1946,327 U.S.
Griffin,
Griffin
modification,
seem
I am
retroactive
of
add that
I should
does appears permit paid during the thus retroactive modifica each instalment should Ordinarily tion minority thereafter un- of awards. or children there, stop could for if is clear court. In of the statute less modified event modification, however, any on its there is no need fur such amounts face to search problem tangled previously and which But this has had paid, accrued af- ther. history jurisdiction. majority in this children, ter would be sub- adjustment. ject to Prior decision in Franklin agree part I on that laches of the Franklin, U.S.App.D.C. 385, 83 F.2d 171 wife has not been shown. all other re- 12, this court had held on three occasions spects I time do no more than would at this jurisdiction the courts did not questions relating rule all to enforce- power have the which the on its statute ment should be reconsidered redeter- appears give. face The holdings were Court in the light mined the District unequivocal. Caffrey Caffrey, App. these views and with the aid of such addi- 952; Biscayne D.C. 4 F.2d Trust Co. as, evidence tional affidavits or other Co., v. American Security App. & Trust court, might on discretion received F.2d Lockwood Lock wood, remand. U.S.App.D.C. 105, F.2d 923. decisions,
Not one however, of those at tempted interpret WASHINGTON, Judge, Circuit statute either with through its language, legislative or its BAZELON, his whom EDGERTON Cir- tory, or what jurisdictions other Judges, cuit concurred: laws, done under similar considering policy questions involved in administer I. Instead, act. all relied on cer problem The central this case is wheth- tain earlier decisions of this court and the pertinent not the er or Colum- Supreme Court which arose in a different juris- gives courts of this statute bia namely, under the full faith and context— an award of diction ali- Constitution, 4, 1, credit clause of the art. so as to cancel remit in in- mony where jurisdiction the court one past alimony which are stallments of due. considering lav/ of another wording duty examine the Our first is to in order to determine what effect should provides: It “After of the statute itself. given to an decree of that oth any granting a decree divorce jurisdiction. er principal cases relied providing for the care and Sistare, were Sistare v. U.S. children, custody the case shall still be 54 L.Ed. Phillips open future considered orders in Kepler, App.D.C. 384. In the Sistare respects.” those case the Court said that where legislation arises, it, gives described situation On the face of where there permits very powers. doubt as the law juris broad of the foreign “any diction, orders” in foreign issue where statute evidently the alimony. expressly provide And word “future” not modi retroactive “later,” synonymous alimony orders, “every here as fication of is used reason “any phrase orders implication that the means to be against able be resorted so Common later time.” sense the existence of issued in the absence “any say later seem to orders” language manifesting of clear would an intention *10 (1940 ed.); D.C.Code 1. 16-413 of the That See. “future” as “1. is to be or come 1901, 1346, 3, Stat. ch. March 31 hereafter; act of pres- will exist that after the 854, 978. day ent; next as the to this. Pertaining relating Dictionary 2. or time that New International 2. Webster’s adjective (p. ed., come; 1023) unabridged) (2d defines the later.”
687 1943, jurisdictions. Watts, Sistare, supra, 314 it.” 218 confer Sistare v. Watts v. 688; 129, 612-613; 22, 609, page page at seе Mass. 49 Winkel U.S. N.E.2d 30 S.Ct. 914, 82, Winkel, 1940, 489, Barber, 77, v. 15 A.2d 178 Md. also Barber v. 323 U.S. Griffin, that, 137, 82; Franklin v. S.Ct. 922-923. It follows as L.Ed. Griffin v. pointed out, in the to Franklin the decisions 66 S.Ct. 90 L.Ed. U.S. Lockwood, Biscayne Caffrey, Trust argued the same ably effect. It has been and us, Company as set- before this court evi cases cannot be considered line with what law dently occasions, authority expressing the past tled and final thought several jurisdiction. of for of this this rule for construction eign controlling highly statutes is or at least It that Franklin v. should be noted persuasive present controversy. On authority in this only Franklin is not the hand, the other this court in Franklin v. holding decrees modi reasoning Franklin did not consider this Leonard, retroactively. In Tolman fiable v. persuasive, faith pointing out that the full al decided in this court said: “The credit “do clause cases not hold the nature of lowance of is not in formerly issued an order an debt. It is not unconditional absolute must, for maintenance like re 'rd- or the changed unchangeable. good conscience, less equity enxorce amount, arrears, good upon even when im years of accrued installments jurisdic hewing cause shown to the court * * * only later. cases hold Those may be tion. The fact that such a dеcree pay that other courts should enforce such circumstances, or sued under certain ment if court that issued the order enforced, jurisdic as is the case in some Caffrey Caffrey, would do so. So far as v. tions, by either execution or attachment of * * * Biscayne Trust Co. American both, not, person, opin ** * Security & Trust Co. Lock ion, App. change its essential character.” 6 * * * imply wood v. Lockwood (Emphasis supplied.) D.C. And 233.3 issuing authority apply court lacks Court, Supreme States in Audu United equitable principles when asked to enforce Shufeldt, discussing bon the nature payment of accrued installments under its alimony, quoted from the statement order, own those cases rest on a misunder approval, Tolman case with as it did a standing of cases the earlier statement of an Illinois court “there 385, 386, U.S.App.D.C. overruled.” 83 171 may be such au circumstances would (Citations omitted.) 13. F.2d change thorize chancellor to even words, husband, paid within amount other the narrow con- to be where payments required clause, he is in arrears in text the full faith and credit Supreme 579-580, Court and this court have laid decree.” U.S. 735, 737, construing the law of see down a rule for other S.Ct. L.Ed. also Markoe, purpose implement- 73, jurisdictions for the Wetmore v. 196 U.S. clause, 172, 49 policy give so as to L.Ed. 390. These were cases Supreme in which the judgments maximum enforcement arrear held Obviously ages provable a rule of in or of sister states. con- dis hardly charged bankruptcy proceedings. a context is bind- struction persuasive Again, speaking in a case where the Court was ing or even involved, a context other than that interpreting its own statute in the here court is totally apart way policy, controlling local and its statements are in no light its own again But this giving full in this case. considerations demonstrates judgments of rule in Sistare v. other that the Sistare con faith and credit to complied App. Alexander, order, [it] that “until with 3. See also Alexander subject court, Lynham Hufty, 1916, to modification ei diminishing by increasing contrary. App.D.C. is not There ther amount, hy vacating or even the order.” lower court could court held that adjudi (Empha page App.D.C. 589 at or vacate alimony. supplied.) spe cating sis arrears But we cifically regard said, *11 688
struing foreign statutes is not here deter desired legislature. Other states minative. with analogous statutes tо the here in one n. issue have reached similar conclusion.4 1943, example, Watts, For 314
Let
us next
what
Watts v.
consider
courts of
609, 612,
jurisdictions
129,
Mass.
49
court
other
N.E.2d
regard
have done with
power retroactively
modi-
present problem.
First,
held there was
may
fy
courts,
provid-
well
the decree under
statute
York
note
the New
alter
subsequent
may
ed that
to the decision of the
“revise
Sistare,
its decree
amount of such
Court in Sistare
reached a con-
relative
v.
opposite
pay-
clusion
Supreme Court’s
or annual allowance and the
* * *
thereof,
“implication
ment
against
the existence
make
power”;
might
made
interpreting
of such
New relative thereto which it
original
A.
substantially
York
identical
in all
in the
suit.”
like result has been
statute
jurisdictions
pertinent
aspects
reached
in those
to that which was in-
courts
de-
case,
power
is not alone
the New York where
over
volved in the Sistare
rived from statute
also
least
courts held that
modification
but
retroactive
Karlin,
equity jurisdiction of
permissible. Karlin
280
inherent
in the
v.
course,
32,
669;
is,
6
considerable
19 N.E.2d
see A.L.R.2d
There
N.Y.
court.5
relies, er-
1289-1290,
Subsequently,
contrary opinion,
much of it
1292-1293.
amended so аs
roneously
believe,
New York statute was
v. Sistare
on Sistare
possible
that this result was
leave no
doubt
states
in those
Even
and similar cases.6
4.
489,
Winkel, 1940,
cases and
Por an
collection of
15
extensive
Md.
178
5. Winkel v.
subject,
1940,
914;
Jeter,
6 A.L.R.
parte
discussion of the
see
193 S.
Ex
A.2d
(1949),
conclusion is
278,
2d
1277
where
8
490.
C.
S.E.2d
any point
to be
reached that “if there
power
Holding against
general
retro
6.
major
gained
characterizing a
view as
actively
decrees see
ity
minority,
it is submitted that
or
667,
1929,
Epps
Epps,
120
Ala.
v.
218
majority
states have
courts
Atkinson, 1936,
150;
233
Atkinson v.
So.
grant
relief,
husband
198;
Ro
125,
Rochelle v.
So.
Ala.
170
canceling
directly by
arrears or
either
1938,
526,
chelle,
179 So.
Ala.
825
235
refusing
indirectly
to enforce
separate
(distinguishing
main
decrees
collecting
restraining
the wife
retroactively
tenance,
modifia
are
(p. 1279) Reaching the same
arrears.”
divorce,
ble,
and those
Watts,
Massachu
v.
result as Watts
n
Superior Court,
not);
Adair v.
which
1934,
text, under
setts case discussed
139,
995,
A.L.
44 Ariz.
38 P.2d
94
Lytle
Lytle, 1947,
statutes,
v.
similar
see
328;
Johnson, 1935,
v.
46
R.
Johnson
138;
47,
Conklin
Mich.
29 N.W.2d
319
(holding
585,
689 Winkel, joyed v. per- in cohabitation.” Winkel not interpret which their statutes 914, 489, 15 A.2d generally, Md. mitting retroactive modification many exceptions of courts have read on Divorce To the effect is Nelson same .circumstances, peculiarity appealing Annulment, where it is said: “Practical- & such as after the remarri- accrued moreover, be, ly, may and fre- there well age of the wife.7 quently are, is situations where a husband all, jurisdictions delinquencies, in, charged
All in brought decisions other appear support ignor- period lapse to us to offer no of after the of considerable cancelling grant or of con- during to believe time which he had reason statute; tained in the District of Columbia going not to insist that his ex-wife was view, they grant in our show that such a full, not, or could he regarded should be as a valued instrument reason, pay- one another sound make the equity justice. of require ments he have ordered. To application his
made an
for modification of
obligation as soon as he realized his situa-
III.
may
overly
tion
technical. He
is
well
Turning
policy considerations,
it,
may
even have realized
and he
not have
factors
practical
reveal the
wisdom or
apply
means
or the
technical
judicial
unwisdom
decisions,
again
of
knowledge necessary
appraise
what
suggest
the decision
in Franklin v.
stringent
A
expect
law would
of him.
less
Appeals
Franklin
is sound. The
of
rule,
modify,
may
that the court
Maryland, a state from which much
'
modify.
mean
It sim-
that the court
drawn,
following say
law is
has the
in this
power of the
act
ply retains the
court to
regard:
support
“The reasons in
of a modi-
justice may
premises
reason
fication of
future instalments of
require. It is therefore submitted
only
arе
degree
less in
in reference to the
purpose
authorizing generally
of statutes
instalments
have accrued due.
of such
is not
the modification
awards
may
There
have been error in the amount
payments,
and that such
limited to
fixed
mistake in the
because
husband’s
provisions should not be so construed un-
capacity
pay may
faculties.
compul-
explicitly
language
less
their
materially
reduced either
unforeseen
2,
sory.”
1945,
p.
(2d
423.)
ed.
Vol.
diminution in estate or of failure in earn-
ings through incapacity,
position
Furthermore,
loss of
there
certain
situations
employment.
pay
When
rigid
the failure to
in which
enforcement
blind
cause,
equit-
thoroughly
attributable
such a
it is
decree would be
of a
text
able
unjust.
example,
to make a
if
wife has
conformable modification in
For
deny
remarried,
knowledge
secretly
which has accrued
To
without the
due.
husband,
justi-
chancery
power pre-
possible
a court
such a
the former
what
obligation
compelling
there for
the latter
vents the rectification of
fication is
pay arrearages accruing after the
which would not have
created had
date
been
Any
system
remarriagе?
rational
anticipate
able
the chancellor been
jurisprudence would in such a situation
later faculties of the husband
defeats
the decree retroactive-
the find
the rule that the maintenance afforded
Or,
us,
ly.8
de-
separated
as in the
before
through
wife
not to
provided
support of
for the
greater
than
she would have en- cree
what
McHan, 1938,
123,
74;
Beers,
Idaho
McHan
Beers v.
7. See
218 P.
30 A.L.R.
984;
1928,
Parker,
605;
Parker v.
Robin-
84 P.2d
133 P.
Wash.
283;
Robinson,
P.
Cohen v.
Co
son
131 W.Va.
203 Cal.
267;
Many
hen,
At
re-
150 Cal.
88 P.
of these decisions
S.E.2d 455.
Atlass, 1931,
Cal.App. 514,
Sistare;
give
ly
few
lass v.
on Sistare
Keck,
Keck
for their conclusion other
than
P.
cf.
reasons
P.2d 300.
the result.
Cal.
state
supra note 7.
cases cited
See
*13
its
exercises
For when the District Court
possible justification
minor child;
act
it should
in these matters
discretion
compelling
the former husband
exists
remit
principle
on the
pay
child’s
that
of the
amounts
rare
may only
in the
support
period
arrears
be exercised
has reached
after it
hardship
inequity
majority.
case where unusual
And
from enforcement.
would result
mayWe
note
Franklin
Franklin
that
must
of the wife
all cases the circumstances
presented
exceedingly
an
harsh situation.
considered,
those
carefully
as well as
be
There, subsequent
divorce,
the wife
Contempt citations are
of the husband.
had in
deserted her children when she
effect
faith
in bad
against those who
available
up living
took
with another man. She
to avoid
conscience seek
and without
accept
stated that she did not wish to
checks
imposes.
duties which
order
name,
out in
and that
made
her married
clear, also,
We wish make it
in our
that
pay
her former
her no more
husband need
alimony arrearages
view
should
be
supported
money. The latter thereafter
are enforceable
execution without the
directly,
of his children
but did not
some
judgment.
necessity
obtaining
a new
seek court modification of the
We do not think that such enforcement
later,
years
until
when the
order
several
inconsistent with
existence
sought
Unquestion-
arrears.
to collect
wife
outstanding
the District Court
ably
practice
the better
his
would
retroactively.
Tolman v. Leon-
See
prospective
been
seek
modification
ard,
App.D.C.
husband
6
232-233. The
of the award. But not
divorced hus-
all
court to seek modi-
who fails to come into
lawyers.
they always
bands аre
Nor can
risk that execution
fication
take
readily obtain or
advice of counsel.
afford
neglected
he
will
issued for the sums
has
be
They
practical
are faced with a
situation
pay.
and act as the circumstances seem to re-
The decision in the Franklin case
did
quire.
they
reasonably
Where
act
and in
change
change
and was not intended to
penalize
good conscience
seems harsh to
it
awarding alimony
fact that
order
an
im-
they
them because
were uninformed or
poses
obligation
high
seriousness to
unwise and did
seek court aid. Cases
the individuals
carrying
involved.
out
The
prior
Franklin,
to Franklin v.
such as Caf-
obligation
duty
community
that
is a
frey
Caffrey, supra,
illustrate the diffi-
family;
as well as to the
it
be
cannot
inequities
culties and
which arise when
ignored by
person
merely
obligated
charged
responsibility
courts
in the
jurisdic-
because he
moved from
has
deprived
relations
domestic
field are
tion,
flexibility
handling
problems
because he has chosen to incur new
before
family
responsibilities.
them.
ties and
What
Franklin v. Franklin held was
in a
that
other side is
fact
ali-
On
proper
equity
re-study
posi-
could
certain,
mony payments
рarties
issue such
tion of the
new
husband,
promptly
met
should be
might presently
orders
modified
called
given
not be
latter should
for,
judicial
of sound
dis-
readjudicate
the exercise
sponte to
right sua
aspect,
simply
In this
pay.
argued
can
cretion.
decision
he should
amount
law to
brought
modification in-
arrears
in-
permit retroactive
that to
rule,
harmony
long-established
with the
pay
hope to
not to
vites a husband
below, permitting the
use
lightly.
him off
discussed
wise
will let
Fur-
that the court
equitable
withholding
discretion
ther,
suggested that
has
retroactive
been
against
may impose hardship
defaulting
sanction
hus-
on a
modification
wife
Caffrey,
Caffrey
App.D.C.
provisions
bands.
who relied
de-
Eliasson,
952;
285, 4
Eliasson v.
arguments,
force to
There is
F.2d
cree.9
these
And,
App.D.C.
F.2d 263.
as the
cannot find them determinative.
Davis, 1937,
Parenti, 1945,
145 Kan.
Parenti v.
Davis v.
71 R.I.
41 A.2d
10. See Keck Cal. meat thereafter entered the decree Nelsоn, Supreme judgment arrears, P.2d Nelson v. proc- 1066. 282 Mo. S.W. Court held was for lack void of due Supreme specifically ess. Court 11. In Barber Barber found Court pointed plaintiff in out rendering law of that under the state relief on did not seek the decree itself permissi- modification was not retroactive accordingly the Court could not have unnecessary ble, say on to “it is and went given what effect should decided judgment whether a decree to consider page 235, at decree. U.S. 68 S.Ct. alimony already accrued, which is was in This accordance with the 556. subject modification or recall policy traditional Court’s it, granted yet is not forum which passing questions constitutional modified, to full so is entitled faith and absolutely necessary unless to the deci- until such time as it is modified.” credit sion. page 81, page at 323 U.S. 65 S.Ct. Concurring dissenting part. part, In Griffin v. Griffin the suit iu judg- Upon the decree itself but a “The York judgment expressed Jackson, New law is The views Justices Frankfurter, prima valid, appear if it so. conclusively Rutledge, facie is not and Black It affords foundation the issuance and us to have The mandate convincing force. levy sweep- of execution. In the absence of time- the full faith and clause credit ly grounds ing; up it requiring assertion of sets in terms of limitations aside, finality. Further, pub- set it becomes a matter of sound conclusive. policy lic decrees consider that “This has held that not heretofore given jurisdictions, should be effect all such a is not entitled to full subject whether or not they are retro- reflecting faith and dicta Contrary credit. active modification. ease with The relative belief lacking in nec- that it would be person may one move from state to essary finality are, opinion, my neither permit duty another would avoidance *15 conclusive in the ab- Certainly sound. nor support simple of such decrees that any suggestion judgment of sence the that expedient, if the full credit faith and clause questioned has been in forum where the require not be construed their enforce- rendered, adequate opportunity being there contrary ment. Such a result would be afforded, nothing most technical but the very purpose clause, of that the conception ‘finality’ and absolute of could designed separate to weld the states into a * * * thought deprive be of credit. it obligations union and insure that in- firmer full faith and clause “The credit does in one curred state would be enforced in an- any require in a judgment, that to other. credited, be be endowed absolute view, contrary may argued, for the finality. enough, my opinion, It is in if the enforcing a that the technical difficulties of judgment is the endowed law of its decree of state render modifiable a sister finality origin with to sustain sufficient impractical. But we do such enforcement execution, levy although of issuance insuperable. those difficultiesto be not deem may opportunity law same afford an for relatively is of sister If the law the state setting aside or modifying mak- it permissible, to when modification clear as is specified ing of a showing.” 327 U.S. at sought in which the state enforcement is 246-247, page pages at S.Ct. 568. out, may, pointed Rutledge as Mr. Justice opinion, in joined Mr. Black that have been defenses that could Justice consider Frankfurter, did Mr. as who fur- Compar- in the state of Justice raised rendition. pointed ther “But said out: that problems a able of the law determining of rendering original judgment State jurisdiction constantly arise our foreign ' allow, alimony may York has as New done system. And, as Mr. Federal Justiсe here, mitigation judgment such even as “If, pointed out, perchance, Frankfurter has so, mitigat- accrued instalments. If such is based on from accrued instalments relief may up defenses when the de- set policy peculiarly within considerations cree is sued on in a discretionary sister State understanding and the local well as when the rendering as enforced in originating of the judges determination judgment may paid A State. have been have am- jurisdiction, sister State tribunals yet may brought a suit thereon an- ple power of abstention to such local defense, if Griffin, other State. While such a well qualifications.” Griffin 327 U.S. founded, precludes recovery Thus, a second page page at at judgment anywhere, availability sought in which enforcement is the court case, pending a defense suit on such may hold action bar spouse judgment defaulting original a sister State.” U.S. page page seeking retroactive modification.13 S.Ct. at abeyance procedure adopted will hold the matter until 13. Such has been tion appeal analogous situation, an in the first where other- outcome judgment appeal. Note, final is on In such 41 Col.L.Rev. wise statе. See jurisdic- (1941). second cases courts tion in but different two somewhat related An decree of respects: first, As defense provides instalments basis execution laches, contending Until the husband action. further court accrue without lapse time, delay enforce- modified, seeking is absolute. right the wife circumstances, ment, consider, for change and the Under such circumstances we any from above, equity the decree matter of bar the wife reasons set forth contending Secondly, and credit. relief he full faith whatever. should be entitled to Further, for extraterri- the trial court should reconsider there be basis require- parties a matter apart circumstances of the and as torial enforcement deny the relief both as and credit. Several of discretion wife ments full faith comity and the held a matter of citation states have that as alimony de- they will enforce modifiable arrears. cree, instalments.14 Con- as to future even noted, As judge we have the trial denied ef- to the extraterritorial
siderations related appellant-wife. all he made relief As ju- in this given fect to be decrees issued law, no findings of fact or сonclusions of risdiction, view therefore, do not decision, gave explanation for his modi- holding them constitute barrier possible it is that he concluded the wife fiable. *16 was barred and that there was no laches V. need or occasion for exercise discre- tion either with to the issuance a question what new to the We turn contempt citation for or a for ar- disposition made of have been alimony. rears If was the basis for this by In a Court. instant case decision, judge’s the trial are of the view jurisdiction in divorce decree issued this that he was in error. If he concluded that Kephart was awarded Mrs. here, the defense of laches was not available sup- per for the the amount of month $75.00 equitable but that as matter of discretion daugh- port minor of herself and her two deny appellant- he would all relief to the husband, re- Appellee, her former ters. change wife because of in the circum- long divorce decree married stances the parties, we think there was Maryland. a new home in and established an abuse of that discretion. contempt failure was .1937he held In pay- alimony, himself pay purged First, toas laсhes: While laches By 1943,however, he ing the amount due. some instances be a defense to proceedings making payments entirely to his ceased this, such as the circumstances must be such appellant In former wife. June merely as to show not someelement of hard- contempt proceeding, seeking brought this ship husband, but also that default or judgment for citation and a arrears. delay by part the wife was in cause denied, Kephart Mrs. was sought relief hardship. Here, that the husband’s absence appealed. jurisdiction, from the pov- and the wife’s erty, illness, and difficulties in accompany or- obtaining its The trial court did counsel, all indicate shows, delay how- whatever opinion. The record by an der there has been operate should not contended that the husband ever, that com- plete excuse to the In barred laches. husband. appellant-wife was Marshall v. Marshall, pointed also out the husband Md. affidavit 163 A. his 874. There marriage was no daughters showing of the first two husband assumed responsible new age obligations and that he was reliance had come of state- sec- ments or support two children actions his former wife. No essence, estoppel marriage. present. defense elements were ond request by requested constantly the husband wife amounts he comply equitable discre- court exercise with the order. In cases of the trial longer far Nelson, Annulment, (2d 1945); Note, Divorce & ed. (1941). See 3 33.47 14. A.L.R. 1272 69á justifiable delay
and less the courts have BUNDY v. UNITED STATES. held the defense of laches not available.15. CRAIG UNITED STATES. Second, equitable exercise of dis Nos. 11024. apart cretion long from laches: It has been Appeals United Court of States the law in this that under cer District of Columbia Circuit. tain hardship circumstances of a husband Argued will not contempt be held in for default in Oct 1951. meeting Thus, alimony. instalments Decided Nov. Caffrey Caffrey, App.D.C. 285, 4 F.2d 24,1952. Writ«ofCertiorari Denied March 952, this court held that where the husband See 72 injured employment, and unable to find and as a pay result was without funds to
alimony due, he would not held in con
tempt. Similarly, where other circumstanc
es hardship of severe existed: Eliasson v.
Eliasson, App.D.C.
But,
where the lack of fluids was due to vol
untary assumption obligations on the
of the husband and diligence lack of at
tempting employment, defaulting to find
spouse would not be excused from his obli
gations proceedings would be Kelly, Kelly U.S.App.
entertained. *17 And, ques 137F.2d 254. as to the enforcing remitting
tion of arrears ali
mony, we consider that for the reasons given the decision in Franklin v.
Franklin controlling should remain the
statement of the law. us, appellant-
In the case now before prima
wife was facie entitled relief requested.
which she We see no circum- justify
stances here which would denial of
all relief to her. As the judgment requested
arrears, the relief the wife granted, unless the court modifiesthe ali-
mony judicial order in the exercise of sound
discretion, within the frame of reference regard
outlined above. With to the citation contempt, again that relief should court,
granted exercising unless sound discretion,
judicial finds that circumstances husband’s default are
mitigating the contempt citation unduly to make the
harsh. consider, therefore, that the judgment
We should be District Court reversed remanded for further proceedings cause opinion. with this inconsistent A.L.R. 894. See eases collectedin 137