68 S.E.2d 403 | N.C. | 1951
LAUGHRIDGE
v.
LOVEJOY.
Supreme Court of North Carolina.
*404 G. T. Carswell and Shannonhouse, Bell & Horn, all of Charlotte, for defendant, appellant.
McRae & McRae, Charlotte, for plaintiff, appellee.
DENNY, Justice.
The defendant contends he is entitled to plead the failure of the plaintiff to give him an opportunity to visit his child "at reasonable times and places," as provided in the decree awarding custody of the child to the plaintiff, as a defense to her action for the collection of past due and unpaid installments due by him, under the provisions of the decree, for the support and maintenance of his child.
Such alleged violation of the provisions of the decree, if found to be true, might be adjudged sufficient to entitle the defendant to a modification of the decree upon a proper petition or motion lodged in the Alabama court in which the original decree was entered. However, under the full faith and credit clause of the Constitution of the United States, the courts of this State are without jurisdiction to modify or alter a duly entered judgment in a court of competent jurisdiction in another state. 31 Am.Jur., Judgments, § 535, p. 145; 50 C.J.S., Judgments, § 890, p. 492; Allman v. Register, 233 N.C. 531, 64 S.E.2d 861; Willard v. Rodman, 233 N.C. 198, 63 S.E.2d 106; Howland v. Stitzer, 231 N.C. 528, 58 S.E.2d 104; Lockman v. Lockman, 220 N.C. 95, 16 S.E.2d 670.
The defendant is relying upon those cases where the parties entered into a separation agreement and the wife violated the provisions thereof with respect to the right of the husband to visit his children, citing Cole v. Addison, 153 Or. 688, 58 P.2d 1013, 105 A.L.R. 897; Duryea v. Bliven, 122 N.Y. 567, 25 N.E. 908; Muth v. Wuest, 76 App.Div. 332, 78 N.Y.S. 431; Haskell v. Haskell, 201 App.Div. 414, 194 N.Y.S. 28, affirmed 236 N.Y. 635, 142 N.E. 314; Myers v. Myers, 143 Mich. 32, 106 N.W. 402. An examination of these cases; however, discloses, in each instance, that it was an original action to enforce the provisions of a separation agreement and the husband set up an alleged breach thereof as a bar to its enforcement, or it involved a petition or motion, lodged in the court which granted the original decree, for its modification.
It seems to be the general rule that where the wife is awarded the custody of the child and the father is given the right to visit it, and the order requires him to make periodic payments for the support of the child, the order for such support will not be construed as being conditioned on the father's right of visitation which he may claim has `been denied him. 27 C.J.S., Divorce, § 319, p. 1206; Zirkle v. Zirkle, 202 Ind. 129, 172 N.E. 192; Hatch v. Hatch, 192 A. 241, 15 N.J.Misc. 461; Com. ex rel. Firestone v. Firestone, 158 Pa.Super. 579, 45 A.2d 923.
Moreover, it does not appear in the decree entered by the Alabama court on 24 October, 1945, that the plaintiff and *405 the defendant ever entered into a separation agreement, but that they only filed with the court an agreement to the effect that the custody and control of the minor child of the marriage should be awarded to the mother with the right of the respondent, the father, to visit the child at reasonable times and places, and that the respondent would pay the claimant, as support and maintenance of such child, the sum of $50.00 per month, and the decree was so entered.
Furthermore, past due and unpaid installments for alimony for the support of a wife and children under a divorce decree duly entered in the State of Alabama, seems to be as absolute and final as any other decree for the payment of money. Upon a proper petition, supported by competent evidence, a decree for alimony and support of children may be modified in that jurisdiction with respect to future installments. Rochelle v. Rochelle, 235 Ala. 526, 179 So. 825; Epps v. Epps, 218 Ala. 667, 120 So. 150.
The ruling of the court below is
Affirmed.