Howland v. Stitzer , 231 N.C. 528 ( 1950 )

58 S.E.2d 104 (1950) 231 N.C. 528

HOWLAND
v.
STITZER et al.

No. 100.

Supreme Court of North Carolina.

March 8, 1950.

William J. Cocke, Asheville, and Denis Mulligan, New York City, for plaintiff.

David H. Armstrong, Troy, for defendant Stitzer.

DENNY, Justice.

The plaintiff is seeking to have the Superior Court of Buncombe County, North Carolina, declare null and void certain provisions of a judgment entered in a court of a sister sovereign state, without alleging fraud in its procurement, or attacking its validity in any other respect. He simply alleges that under the laws of the State of New York, by reason of the re-marriage of Amber Justiz Stitzer, she is no longer entitled to the benefits awarded to her for her support during her lifetime, under the provisions of a judgment entered in a court of the State of New York, and prays that he be discharged of all obligations imposed by said judgment with respect to her support.

However, the statute upon which the plaintiff is relying for the relief he seeks, being Civil Practice Act, Section 1172-c, Thompson's Laws of New York, 1942 Cumulative Supplement, L.1940, c. 226, Section 10, provides for notice and hearing before a judgment can be modified with respect to an award for the payment of alimony. This statute, in our opinion, only gives the courts of the State of New York the right to modify a judgment entered in the courts of that State with respect to an award for the payment of alimony, and the judgment must be given full faith and credit until modified. Lockman v. Lockman, 220 N.C. 95, 16 S.E.2d 670; Barber v. Barber, 323 U.S. 77, 65 S. Ct. 137, 89 L. Ed. 82, 157 A.L.R. 163; Id., 180 Tenn. 353, 175 S.W.2d 324; Graham v. Hunter, 266 A.D. 576, 42 N.Y.S.2d 717; Hoyt v. Hoyt, 265 A.D. 223, 38 N.Y.S.2d 312; Fales v. Fales, 160 Misc. 799, 290 N.Y.S. 655, affirmed 250 A.D. 751, 295 N.Y.S. 754; Little v. Little, 146 Misc. 231, 262 N. Y.S. 654, affirmed without opinion in 236 A.D. 826, 259 N.Y.S. 973; Glaser v. Glaser, 276 N.Y. 296, 12 N.E.2d 305; Hess v. Hess, 276 N.Y. 486, 12 N.E.2d 170; Johnson v. Johnson, 196 S.C. 474, 13 S.E.2d 593, 134 A.L.R. 318; Biewend v. Biewend, 17 Cal. 2d 108, 109 P.2d 701; 132 A.L.R. 1264; Barns v. Barns, 9 Cal. App. 2d 427, 50 P.2d 463; Paulin v. Paulin, 195 Ill.App. 350, 352. And there is no allegation in the plaintiff's complaint to the effect that such modification has been made in the courts of the State of New York, neither has such modified judgment been duly authenticated and made a part of plaintiff's complaint. If these facts appeared affirmatively in plaintiff's complaint, we would have no difficulty in upholding the ruling of the court below, but we think the Superior Court of Buncombe County is without authority to modify the judgment of the New York Court.

Cases involving the custody of children, such as People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S. Ct. 903, 91 L. Ed. 1133, upon which the appellee is relying, are not controlling on the present record.

Ordinarily, the judgment of a sister state may be collaterally attacked upon the following grounds: (1) Lack of jurisdiction; (2) fraud in procurement; or (3) that it is against public policy. State v. Williams, 224 N.C. 183, 29 S.E.2d 744; Williams v. State, 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577, 157 A.L.R. 1366; Crescent Hat Co. v. Chizik, 223 N.C. 371, 26 S.E.2d 871; Cody v. Hovey, 219 N.C. 369, 14 S.E.2d 30. It clearly appears, however, from plaintiff's complaint that he is not attacking the validity of the New York decree on any of these grounds, but that he is relying upon the validity of the divorce granted by the decree and seeks only such modification thereof as will relieve him of certain obligations imposed therein.

It is said in 31 Amer.Jur., Judgments, Section 535: "Under the full faith and credit clause of the Constitution of the United States, a judgment rendered by a court of one State is, in the courts of another state of the Union, binding and conclusive as to the merits adjudicated. It is improper to permit an alteration or re-examination of the judgment, or of the grounds on which it is based." See also 50 C.J.S., Judgments, § 891.

In the case of Hoyt v. Hoyt, supra, the parties had theretofore obtained a divorce in the State of Nevada. The decree contained certain provisions with respect to the payment of alimony. The plaintiff instituted an action in the State of New York to collect sums of money due under a separation agreement which had been incorporated in the divorce decree. The husband undertook to assert as a defense the invalidity of the separation agreement. The New York Court said: "The parties having submitted themselves to the jurisdiction of the Nevada court, which also had jurisdiction over the subject matter, the decree entered is conclusive there, and under the full faith and credit clause of the United States Constitution, Art. IV, § 1, is equally so in every other state. * * * The only forum which has jurisdiction to modify, alter or amend the decree is the Nevada court." [265 A.D. 223, 38 N. Y.S.2d 314].

Also, in Little v. Little, supra, the question was presented whether the courts of New York might modify a judgment entered in New York upon a decree of a court of another State, so as to require the payment of a smaller amount of alimony than that provided for in the foreign decree. In the opinion of the New York Court, it is stated [146 Misc. 231, 262 N.Y.S. 656]: "The proper remedy of the defendant would seem to be to obtain a modification in the courts of the state in which the judgment of divorce was originally rendered. * * * The judgment entered in this action being based and predicated upon the Illinois judgment, it is my opinion that it can be modified only upon the basis of a modification of the Illinois judgment."

And in Paulin v. Paulin, supra, the parties had been divorced in the State of Ohio, and the action was instituted in Illinois to collect alimony due under the original judgment. The defendant sought to have the Ohio decree amended. The Illinois Court said: "True it is that every decree for alimony is subject to be varied at a subsequent time by the court entering the decree, yet no other court can disturb it, and until such court does so, it remains fast, firm and final."

Counsel for plaintiff (Mr. Cocke) states in his brief that he is seeking a declaration of the rights of the parties, and in his oral argument before this Court, he took the position that the plaintiff is entitled to the relief he seeks under the provisions of the Declaratory Judgment Act, G.S. §§ 1-253 to 1-267. The allegations of the complaint, however, are insufficient to invoke the provisions of that Act, even if jurisdiction of this cause be conceded.

The plaintiff is not seeking an interpretation of the provisions of a "deed, will, written contract or other writings constituting a contract," etc., as provided in G. S. § 1-254, but he is seeking the modification or reformation of the provisions of a judgment. Moreover, the judgment he seeks to amend is not set out in his pleadings or an authenticated copy thereof attached thereto. See Wright v. McGee, 206 N.C. 52, 173 S.E. 31; Brandis v. Trustees of Davidson College, 227 N.C. 329, 41 S.E.2d 833; Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404.

For the reasons herein stated, and the cited authorities in support thereof, the order overruling the demurrer and continuing the restraining order to the hearing, is reversed.

Judgment vacated, proceedings dismissed.