The husband appeals from a judgment of the circuit court ordering him to pay support until age twenty-one of a child now past eighteen years of age. The issue presented is the power of the Missouri court to modify a Kansas divorce judgment so as to change the age of majority from eighteen to twenty-one years of age.
The husband has raised and preserved that issue as a denial of full faith and credit to the Kansas judgment pursuant to U.S. Const. art. IV, § 1. The resolution of that issue involves the construction of the federal Constitution which, pursuant to Mo. Const. art. V, § 3, vests jurisdiction in this court. No ease has explicitly asserted the jurisdiction of this court to construe the federal or state Constitutions, but such jurisdiction has been exercised,
Roberts v. City of St. Joseph,
The District Court of Wyandotte County, Kansas, granted a divorce to the wife, Vani-ta Thompson, in 1968. The decree awarded her custody of the parties’ three minor children and, under a subsequent modification, ordered child support for the three children. Under Kan.Stat.Ann. § 60-1610(a) (1976), child support payments must cease at age eighteen. The relevant language of the statute is:
Any order requiring either parent or both parents to pay for the support of any child until the age of majority shall terminate when such child attains the age of eighteen (18) ....
By judicial decision, this statute has been construed to prohibit any extension of support beyond age eighteen despite compelling circumstances.
Brady v. Brady,
The wife moved to Missоuri, which was also the then residence of the husband. The parties were involved in a variety of proceedings revolving around the enforcement of the Kansas decree during 1978. These proceedings culminated in the Jackson County Circuit Court entry of a show cause order in 1979 requiring the wife to show cause why she should not be cited for contempt of court for failure to comply with the court’s orders concerning child visitation. The parties entered into a stipulation to modify the decree and to provide for specific visitatiоn privileges. The stipulation further provided that the Jackson County Circuit Court was to have “jurisdiction to enforce and modify the original Decree of Divorce entered December 12, 1968 in the District Court of Wyandotte County, Kansas, and that .. . [the Jackson County Circuit Court] . . . shall retain jurisdiction to entertain and rule upon any and all future motions or applications to modify such original Decree of Divorce.” The decree was modified to include the specific
In 1980, the wife petitioned the court for a modification of the Kansas decrеe to increase the child support payments. The husband filed his answer and asserted that his obligation to support his oldest son, who was then eighteen years old, had ceased on his eighteenth birthday when the son was emancipated under Kansas law. The husband contended that the Missouri courts are obligated by the doctrine of full faith and credit to apply the substantive law of Kansas.
At the time of the hearing on this motion, the parties and their three children were still Missouri residents. The husband consistently and by specific citation to U.S. Const. art. IV, § 1, asserted that under the Kansas law his obligation to support ceased at age eighteen, and the-Kansas judgment therefore was binding upon the Missouri court.
The circuit court then made the following finding:
That although the Court believes that there is pertinent case law which supports the proposition that the law of Kansas ought to be applied to the parties before the Court in this matter, the Court is persuaded by the stipulations entered into by the parties referenced earlier, dated October 1979, that the law of Missouri ought to apply because the parties had so agreеd; and, therefore, has ordered and based this decision in this matter upon said rationale.
The husband appeals from that order. His sole point on review is that the court erred in applying Missouri law as to the age of emancipation, thereby offending the full faith and credit clause, which requires Missouri courts to give to the Kansas decree the effect it would have under Kansas law.
If the trial court was correct in its assumption that the stipulation of the parties empowered the trial court to apply the Missouri law without regard to the Kansas decree and its effect under the full faith and credit clause, the order should be affirmed. The order may not be sustained on that basis. The stipulation refers to “jurisdiction.” It is hornbook law that the parties may not stipulate the jurisdiction of a court in the sense of subject matter jurisdiction. Parties may, of course, consent to jurisdiction of the person by appropriate entry of appearance or by undertaking to litigate in a court. In either of these senses of the term “jurisdiction,” the stipulation is redundant in this case. The cirсuit court has subject matter jurisdiction over questions of support and maintenance. § 452.-300 RSMo 1978; § 452.340 RSMo 1978;
Gomez
v.
Gomez,
It may even be questionable that the protection of the full faith and credit clause is a personal constitutional right that a party may waive. The full faith and credit clause is directed to the relationship of the states to each other.
The very purpose of the full-faith and credit clause was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.
Milwaukee County v. M.E. White Co.,
Even if the parties could waive the directive of the full faith and credit clause, the parties’ stipulation in this case does not meet the requirement of an “intentional relinquishment or abandonment of a known right or privilege.”
Johnson v. Zerbst,
Before turning to the dispositive issue in the case, it is necessary to discuss one of the major contentions of the parties. It is contended that application of the Missouri law, concerning the age of majority, is justified by the interest of the State of Missouri m the children and their status. It is also contended that the Missouri law is the better rule of law.
By these contentions, the case has been briefed and argued as if it were a choice of law case. Most of the cases that have been cited are cases in which the full faith and credit clause is implicated in a choice of law situation. A review of the principles will demonstrate that this is not a choice of law situation.
Confusion in the briefs and the cases is engendered by the use of the word “jurisdiction” without any definition of the sense in which it is used. Missouri has jurisdiction, or power to act, in the sense of subject matter or personal jurisdiction. Some оf the cases refer to the jurisdiction of the court to apply its own law. In the choice of law situation, Professor Leflar has utilized the term “legislative jurisdiction,” R. Leflar, American Conflicts Law § 3 (3d ed. 1977). This phrase expresses the notion of jurisdiction as the power to apply the forum’s law in the choice of law situation, as limited by the organic law. The traditional limitations upon legislative jurisdiction arising from the organic law are the requirements of the due process clause of the fourteenth amendment of the United States Constitution and the full faith and credit clause, art. IV, § 1. The due process clause prevents the exercise of legislative jurisdiction by a state when the choice of law is “fundamentally” unfair to one of the parties.
Allstate Ins. Co. v. Hague,
directing that a State, when acting as the forum for litigation having multistate aspects or implications, respect the legitimate interests of other States and avoid infringement upon their sovereignty. The Clause does not, however, rigidly require the forum State to apply foreign law whenever another State has a valid interest in the litigation.
Allstate Ins. Co. v. Hague, supra,
The instant case does not fall within these choice of law precepts.
Allstate Ins. Co. v. Hague, supra,
expressly excepts it from its scope. “Different considerations are, of course, at issue when full faith and credit is to be accorded to acts, records and proceedings, outside the choice of law area, such as in the case of sister state court judgments.”
Allstate, supra,
The starting point for inquiry in such eases is the full faith and credit clause and its concomitant federal statute, 28 U.S.C. § 1738 (1976) (enacted in present form in 1948).
The constitutional command is that “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.” Article IV, § 1 of the Constitution also providеs that “Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” And Congress has enacted that judgments “shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken.”
Barber v. Barber,
There are recognized exceptions to the application of the rule arising from the language “law or usage in the courts of the State from which they are taken.” One of the recognized areаs of exception is the effect of decrees of alimony sought to be enforced in sister states.
A divorce decree as to past-due installments of alimony is within the protection of full faith and credit and may not be modified as long as the courts in the state which rendered the decree have no discretion to modify such accrued installments.
Sistare v. Sistare,
When the case presents an issue of the effect of a prior judgment not modifiable in any way in the state of rendition, the case law defining the scope of the full faith and credit clause is sparse.
In
Yarborough v. Yarborough,
The California Supreme Court was confronted with a similar situation in
Elkind v. Byck,
The Missouri courts have been confronted with two situations in which differing ages of majority were asserted as defenses to further support. In
Federbush
v.
Mark Twain Parkway Bank,
The appellant-husband in the instant case has directed this court’s attention to
Mosher v. Mosher,
It must be concluded that the reserved question in
Yarborough
remains unanswered in any authoritative way. In
Scholla v. Scholla,
The problem posed by the question reserved in
Yarborough
requires a construction of article IV, § 1 of the United States Constitution. The task of construction requires the weighing of competing policies in the light of the reasons for the policy determinations. The competing policies are those of the full faith and credit clause in protecting the sovereignty of Kansas and the policy of Missouri with respect to the protection of domiciled minors in the area of parental support. There are both logic and reasoned analagous authority to permit a determination that the Missouri policy should prevail. Justice Stone’s dissent in
Yarborough,
Whatever may be said of the local interest which was deemed controlling in those cases in which this Court has denied to a state judgment the same force and effect outside the state as is given to it at home, it would not seem open to serious question that every state has an interest in securing the maintenance and support of minor children residing within its own territory so complete and so vital to the performance of its functions as a government that no other state could set limits upon it.
Id.
at 225,
The reasoning and language of Justice Stone’s dissent are of even greater force
The Restatement (Second) of Conflict of Laws § 103 (1971) provides a safety valve to protect a forum state’s overriding domestic interests from too literal application of the full faith and credit clause:
A judgment rendered in one State of the United States need not be recognized or enforced in a sister Staté if such recognition or enforcement is not required by the national policy of full faith and credit because it would involve an improper interference with important interests of the sister State.
This section may be a distillation of the Restatement Reporter’s thoughts as advanced in Reese and Johnson,
The Scope of Full Faith and Credit to Judgments,
49 Colum.L.Rev. 153,171-77 (1949). Professor Reese and his co-author reasoned that the full faith and credit clause was a necessary component to the federal Constitution, which bound the several states to a central government. Yet, it was suggested that this obvious purpose of the full faith and credit clause not be recited as justification for blind application of the clause so as to override the legitimate interests of the states as they might arise in exceptional circumstances. “[I]t seems entirely reasonable to suppose that from time to time cases will arise where the very nature of our federal government demands that the national policy of res judicata should give way before the peculiar interests of a single state.”
Id.
at 164. Professor Reese’s views have not gone uncriticized.
See, e.g., Thomas v. Washington Gas Light Co.,
The underlying rationale of § 103 of the Restatement (Second) Conflict of Laws and the
Yarborough
dissent is sound. A support decree governs a continuing relationship- — that of the child and his parent. It is impossible for a rendering state to take into account another state’s interests that may arise in the future. In the case at hand husband, wife, and children were dom-iciliaries of Kansas at the time the support decree was entered. But by the time the modification of that decree, which is the subject of this appeal, was sought,
all
the parties had moved to Missouri. Missouri is responsible for the welfare of the Thompson children, and Missouri continues a father’s support obligation until his child reaches the age of twenty-one.
Hartman v. Hartman,
It can be argued that Missouri should respect the integrity of the Kansas decree by virtue of the fact that it was rendered by a sister sovereign’s court of general jurisdiction whose jurisdiction over the parties is unquestioned. Indeed, a distinction was drawn in
Thomas, supra,
between the full faith and credit to be afford
In weighing the interests of Kansas under the policy reasons for full faith and credit and the interests of Missouri in the maintenance and support of minor children domiciled in Missouri, the balance must be struck on the side of Missouri.
The decree of the circuit court ordering payment of child support to continue as ordered until the minor children reach the age of twenty-one is affirmed.
All concur.
