Opinion
April 11, 1949.
1. When bill filed by complainant in her own name will be considered as one also in behalf of complainant's child.
When decree of a competent court in Indiana granted a divorce to the wife and to her the custody of the minor child of the parties, and ordered that the husband pay to the clerk of the court the sum of $50.00 per month for the support of the child, a bill filed in this state by the former wife to collect the arrearages of the payments, although filed in her own name, will be considered also as a suit for and in behalf of the child by the mother as next friend.
2. Evidence — official records — presumption of correctness.
When by a decree of a competent court in Indiana, the father was ordered to pay to the clerk of that court the sum of $50.00 per month for the support of the father's child, entries in the clerk's record of the payments made to him will be presumed to be correct and it will be further presumed that the clerk accounted for all payments received by him, there being no proof to the contrary.
3. Courts — full faith and credit — future payments of support money.
In Indiana a court of competent jurisdiction which has rendered a divorec decree and therewith an order on the father for the payment of a monthly sum for the support of the child of the divorced parties, has jurisdiction at anytime to modify the order for the future payments of the monthly sum according to the financial ability of the father and mother and the requirements of the minor child; wherefore as to future payments there is no such finality in the decree as to bring it within the full faith and credit clause of the federal constitution, with the further result that no court in this state would have authority to modify the decree or to make any order as to such future payments.
4. Courts — full faith and credit — past due payments of support money.
In Indiana, a court which has rendered a decree of divorce and therewith an order on the father for monthly payments for the support of the child of the divorced parties, has no authority to modify the award as to any past due and unpaid installments; wherefore the payment of the past due and unpaid amounts may be enforced in this state under the full faith and credit clause of the federal constitution.
5. Recovery under Indiana law by divorced wife for past due installments of support money for child.
Under Indiana law it is incumbent upon the wife who sues to recover past due and unpaid support money for child, theretofore ordered by a court of that state, to show what amounts she was required to pay and did pay or the reasonable value of commodities furnished by her for the maintenance of the child out of her own earnings or funds and that such expenditures were needed by child by reason of the failure of the father to pay the ordered support money; and on a suit in this state to enforce the payment of past due and unpaid installments, the wife may here make the proof which she would have had to make in Indiana, and on making it and showing thereby that her allowable expenditures equalled or exceeded the monthly sum ordered she is entitled to recover here for said past due and unpaid installments.
Headnotes as approved by McGehee, C.J.
APPEAL from the chancery court of Marion County, LESTER CLARK, Chancellor.
Davis Hammond, for appellant.
The first point to be discussed is that the lower court erred in awarding a decree in any amount against the appellant, based on the Indiana judgment under the facts in this record. The appellee has invoked the full faith and credit clause of the federal constitution to have this decree of the Indiana court revised in the chancery court of Marion County, Mississippi, so as to invest said court of this state with the powers to enforce such decree by a rule for contempt. In Steele v. Steele, 152 Miss. 365, 118 So. 721, the court said: "It is a well established rule that when the full faith and credit clause of the Constitution is invoked to compel an enforcement of a judgment or decree in another state, the question of the jurisdiction of the court of rendition is always open to inquiry. Haddock v. Haddock, 201 U.S. 562; National Exchange Bank v. Wiley, 195 U.S. 259."
In the case of Gallant v. Gallant, 154 Miss. 832, 123 So. 883, this court dealt with the question as to whether or not a final decree of a Louisiana District Court was entitled to full faith and credit under the federal constitution where it was sought to obtain a judgment in the courts of this state on matured unpaid alimony installments.
Anticipating that appellee will cite the case of Franchier v. Gammill, 148 Miss. 723, 114 So. 813, this case is altogether different from the case at bar in that the award made the wife was absolutely final and not subject to change. The opinion of the court discloses that the amount was fixed by an agreement between the parties. "Wherein the husband agreed to pay the wife $100.00 per month as alimony if the decree for divorce was granted; and the agreement further provided that the sum of $100.00 should be paid monthly without increasing or decreasing the sum so long as Mrs. Gammill should remain single." The agreement was exhibited to the Nevada court which granted the decree and alimony in favor of the wife. The decree in that case following the agreement ordered the husband to pay the wife the amount of $100.00 per month, and provided "Said amount not being subject to change". The court simply held under such facts that the decree was final and was entitled to full faith and credit under the constitution as a final decree.
The Supreme Court of Louisiana decided the case of Snow v. Snow, 188 La. 660, 177 So. 793, 799, wherein the Gallant case, supra, was discussed as follows: "But we do not construe the opinion or decree rendered by the Supreme Court of Mississippi, in Gallant v. Gallant, as meaning that a Louisiana court that has rendered a judgment for alimony in favor of a divorced woman may annul or amend the judgment for an amount that has become delinquent since the judgment was rendered, or the debtor's showing that he was financially unable to pay the alimony when it came due, or afterwards. If a judgment for alimony is not more substantial than that it is of little or no value or protection to the one in whose favor it is rendered. There is no reason why a judgment for alimony, as to the amount which has become past due since the judgment was rendered, should not be protected by the provision in Article 548 of the Code of Practice, that a judgment when once rendered, becomes the property of the one in whose favor it has been given and cannot be annulled or amended except by the method and for the cause proscribed by law."
"The test as to whether the foreign judgment here involved is revocable in the jurisdiction where rendered, as to past due installments sued for in the court below, must be determined by the decisions of the courts of Louisiana. Since the question involves a construction of the statutes of that state hereinbefore quoted, therefore applying the decision announced in the case of Snow v. Snow, supra, we hold that the judgment as to past due installments is final, and consequently is enforceable in this state under the full faith and credit clause, Article IV, section 1, of the Constitution of the United States."
Appellant had a right under the doctrine of stare decisis to rely upon the law announced in the Gallant case. For the reasons that the doctrine of stare decisis requires for the sake of uniformity in our decisions, and that the public may rely with confidence thereon, that the decision of this court in the Gallant case be adhered to in this case. The appellant was assured and relied with confidence upon the announcement by this court in the Gallant case, on the fact that appellee was not entitled to a decree against him on that decree from Indiana in the courts of this state. It is strongly argued here that appellant relied with absolute confidence and assurance upon the announcement in the Gallant case, that he would not and could not be subjected to a decree in the courts of this state with the right incident thereto to imprison him for contempt unless the same were paid.
Pavuk v. Scheetz, Appellate Court of Indiana, in Banc. Dec. 3, 1940, 29 N.E.2d 992. "When, in a divorce proceeding where the custody and maintenance of children is involved, the court having jurisdiction grants the divorce, and, as a part of its decree, orders that the father pay a designated amount for their support and maintenance, the custody of the children being awarded to another, the father is under a legal duty to pay the amount awarded, and the custodian of the child under a legal duty to see that the child is supplied with the necessities of life.
This court has held that when the father fails to comply with the court's decree as to payments for support, and continuous support is furnished by the person awarded the custody so as to meet the exigencies arising, sound public policy requires that the father be held liable to the one having the legal custody of said child, or children, and who rightfully meets the present needs of the child, or children, where such person has expended, for that purpose an amount equal to, or in excess of that which the father was obligated to pay, but did not pay for the support of the child. McCormick v. Collard, 1937, 105 Ind. App. 92, 10 N.E.2d 742. This case, however, does not purport to hold that unpaid installments of support money constitute a debt due from the father to the child's custodian and recoverable by such custodian regardless of what the facts may be in connection with the support and maintenance of the child.
If, when need requires, the one granted the legal custody of the child meets any exigency out of his own funds, such action being necessary because of a failure on the part of the father to discharge the duty imposed upon him by the court, then such person to the extent he has supplied the necessary funds, may recover of the father the amount used for the purpose, provided such amount does not exceed the amount of support money due and unpaid. McCormick v. Collard, supra.
Appellee, although awarded the custody of the children, has no proprietary rights in the amounts ordered paid for their support. Decrees of this class do not create the relationship of debtor and creditor between the father and the party to whom the custody of the children is given. Such money as is paid by reason of the decree can only be used for the benefit of the children. See Stonehill v. Stonehill, 1896, 146 Ind. 445, 446, 45 N.E. 600; Hutchinson v. Wood, 1915, 59 Ind. App. 537, 540, 109 N.E. 794.
In order for appellee to recover in this action it was incumbent upon her to plead and prove what amounts she was required to pay and did pay, or the reasonable value of the commodities furnished by her, for the maintenance of said children out of her own earnings or funds, and that such expenditures were required on her part because of the needs of the children awarded to her custody, and the failure of appellant to pay support money in accordance with the decree of the court granting such custody to her.
It is our opinion that the facts stipulated do not constitute sufficient evidence to sustain the decision of the court. From such stipulation (the only evidence before the court), it cannot be determined what amount, if any, appellee furnished to maintain her children, and, in the absence of such proof, there is no basis for recovery in any amount.
Judgment reversed, with instructions to sustain appellant's motion for a new trial."
Since this case deals with the appellee's right under the full faith and credit clause of the constitution to have the Indiana decree or judgment enforced in this state, and that said decree of the Indiana court is not a final decree in that said decree is one that can be changed, annulled, or modified at any time by the court of original jurisdiction. Also for the further reason that in the holding, Pavuk v. Scheetz, supra, and other like cases by the Indiana courts, the appellee's bill of complaint should be dismissed.
Appellant desires to call the court's attention to Volume 157, A.L.R. 170, wherein the law of many states is fully discussed dealing with the same question now before the court. A good summary of the various situations, with the rule applicable to each situation, is quoted from 17 Am. Jur. 537, Divorce and Separation, 708. The opinion of the court in Green v. Green, (1940) 239 Ala. 407, 195 So. 549, is to the following effect: (1) "The question whether a provision in a divorce decree for the maintenance and support of a child is, under the full faith and credit provision of the federal constitution entitled to recognition and enforcement in a suit other than the one which the decree is rendered is dependent upon the further question as to whether such a provision of such decree may be regarded as final. If final, it is protected by the full faith and credit clause of the federal constitution and is enforceable in another state. Where such provision of the decree is, either under the statute or by its very terms, subject to modification, in the discretion of the court, either as to past due installments or as to installments to fall due in the future, it is obvious that the decree is not final and therefore it is not entitled to full faith and credit in another state." (2) "Where, however, the order for such installments is transformed, in the state in which the original decree was rendered, into a final judgment for a definite sum payable presently then their payment may be enforced in another state." (3) "Where by the law of the state where rendered, the decree is not subject to modification at the discretion of the court as to installments which are already due, then the judgment as to such installments is final and must be given full faith and credit in another state." "As to installments not yet accrued, the opposite rule applies; that is, they are not entitled to the protection of the full faith and credit clause because in such case no money is yet due and as to such installments the decree is generally understood to be subject, upon proof of changed circumstances, to modification by the court rendering it." Where under the law of the state where the decree for alimony is rendered, the court has a discretionary power to alter or modify the decree not only as to installments to accrue in the future but also as to accrued and unpaid installments, the decree is not a final decree although no application for its modification has in fact been made before the accrual of the installments, and therefore it is not entitled to recognition in another state under the full faith and credit provision. This rule is supported by the following cases: (United States) Hanson v. Hoomis, (1937) DC 18 F. Supp. 527; (Alabama) McAlister v. McAlister (1926) 214 Ala. 345, 107 So. 843; (California) Biewend v. Biewend (1941) 17 Cal.2d 117, 109 P.2d 701, 132 A.L.R. 1264; (Florida), Lechner v. Lechner (1944) 16 So.2d 816; (Hawaii) Getz v. Getz (1928) 30 How 637; (Louisiana) Weston v. Weston (1933) 177 La. 305, 148 So. 241; (Mississippi) Gallant v. Gallant (1929) 154 Miss. 832, 123 So. 883; (Montana) Espeland v. Espeland, 155 Misc. 843, 280 N.Y.S. 454; (Ohio) Van Almsick v. Van Almsick (1941) 69 Ohio App. 425, 42 N.E.2d 228. Dale Dale, for appellee.
The case of Compton v. Compton, 1940, 188 Miss. 670, 196 So. 635, involved practically the same question that is presented in the case at bar, and in that case counsel for appellant urged practically the same propositions as are urged by counsel for the appellant here. That case was founded upon a decree of a Louisiana trial court, awarding to appellee therein monthly payments of "support money" to be made by the appellant therein, and was a suit in chancery court in Mississippi seeking to enforce the Louisiana decree as to past due installments that had accrued thereunder. The appellant there, as does appellant here, cited and urged the case of Gallant v. Gallant (1929), 154 Miss. 832, 123 So. 883, as controlling on the particular issue. However, Justice McGehee, speaking for this court in its opinion in the Compton case, supra, said, at page 636: "The test as to whether the foreign judgment here involved is revocable in the jurisdiction where rendered, as to past due installments sued for in the court below, must be determined by the decisions of the courts of Louisiana, since the question involves a construction of the statute of that state hereinbefore quoted. Therefore, applying the decision announced in the case of Snow v. Snow, supra, we hold that the judgment as to past due installments is final, and consequently is enforceable in this state under the full faith and credit clause, Article IV, section 1, of the Constitution of the United States."
With that statement our guide as to the test to be applied we turn directly to decisions of the appellate courts of the State of Indiana, for it was a court of that state which rendered the decree sought to be enforced here by appellee, and in the chancery court of Marion County, Mississippi, and respectfully urge that the decisions of those courts of Indiana should likewise be determinative of the issue in this appeal.
Appellee would first call the court's attention to the case of Rogers v. Rogers (1909), 46 Ind. App. 506, 89 N.E. 901, which case was tried in Indiana seeking enforcement of a decree rendered by an Ohio court which awarded the divorced wife custody of the minor child of the marriage, together with alimony and support for the child. The facts there, as stated by the Indiana appellate court, indicate that there was a considerable sum accrued as past due installments, being something over $832.00, that the defendant-husband had not applied to the Ohio court for a modification or variance of the amount to be paid, and that the decree of the Ohio court recited, among other things, ". . . until otherwise ordered by the court." The Indiana trial court dismissed the action, and that decision was reversed and the cause remanded by the appellate court. The specific holding of the Indian appellate court was that the decree of the Ohio court was such a final judgment as was entitled to full faith and credit under the United States Constitution. The court, in its opinion, said at page 903: "If the appellee wanted the judgment modified, he had his remedy by petitioning the court that rendered it to hear and determine the matter, and if modified in any manner, . . . this he could set up by way of defense . . . It is certainly equitable, and justice and right demand that judgments of this class should be enforceable. A party against whom a judgment was rendered for the support of his wife and infant child should not be permitted to cross the state line, and thereby escape the liability of his obligation; . . ."
There we see the Indiana appellate court passing on almost the exact question here presented to this court, and there can be no doubt but that the enunciation of that court is clearly in line with the ruling of the chancellor on the trial of this cause below.
Appellant cites and relies on the Indiana cases of Pavuk v. Scheetz, (1940), 29 N.E.2d 992, and McCormick v. Collard (1937) 105 Ind. App. 92, 10 N.E.2d 742. However, both of those cases involved Indiana decrees which were sought to be enforced in the state of Indiana. Such can be of value in the determination of the question at hand, but only if the facts are sufficiently similar to make the rules announced fit our particular circumstances. The facts of the Pavuk case, supra, clearly distinguish it from the one presently under consideration, and we submit that consequently it cannot be used as a guide or control in arriving at the correct conclusion here. There it was shown that the mother of the children, to whom their custody had been awarded and in whose favor support payments were ordered paid by the father, had re-married after the divorce, had never worked, had never earned nor realized any income of her own, and that all the support and maintenance of the children had fallen upon their step-father. The court used that last mentioned fact as the basis of their decision, as can be seen from the statement on page 995 of the report: "It is our opinion that the facts stipulated do not constitute sufficient evidence to sustain the decision of the court. From such stipulation (the only evidence before the court), it cannot be determined what amount, if any, appellee furnished to maintain her children, and, in the absence of such proof, there is no basis for recovery in any amount." That factual situation is not present in the case now before the court, for the record testimony shows that appellee herein was required to, and did, expend amounts at least totaling that ordered paid by appellant for the support and maintenance of the minor child here involved, Diane Hatrak. Such dissimilarity of facts, appellee urges, renders the Pavuk case inapplicable here.
In the McCormick case, supra, however, the facts are quite similar to those disclosed by the record in this case, and consequently the decision in that case might well be examined closely. In that case there had been applications to the court of original jurisdiction for modifications of the amount ordered for support, and the amount had been reduced several times and eventually the custody of the child was awarded to the father and with the consequent effect of relieving the father of any future payments. However, the Indiana appellate court, while recognizing and stating that such decrees are subject to modification upon application, and where the facts were such that the one having the custody was forced to furnish support in the absence of the ordered payments and there remained un-modified past due payments, stated, at page 743 of the report: "In our opinion, there can be no doubt that such an order imposes upon the father, so long as the decree is in force and effect, an obligation which can be discharged only by payment of the amount awarded . . ., then, in accordance with the dictates of reason and justice, the father being under a legal duty to pay to the extent ordered by court, should be held liable to the person to whom the custody of the child was given, such person not being a volunteer but one upon whom the court has imposed the duty of actually caring for the child's needs, with such assistance as the court has decreed shall be furnished by the father."
Appellant also cites Stonehill v. Stonehill (1896), 146 Ind. 445, 45 N.E. 600, and Hutchinson v. Wood, et al (1915), 59 Ind. App. 537, 109 N.E. 794. The Stonehill case, supra, was on motion of divorced wife for rule against the appellee therein to show cause why an attachment should not issue against him for contempt of court in failing to pay support as ordered, which motion was dismissed by the trial court, and that judgment reversed on appeal. Admittedly the holding of the court there is that the decree for support was subject to modification upon proper petition or motion, but such had not been sought. Thereupon, the court very specifically states that the petition for a rule as to contempt will lie against the appellee therein until such modification is obtained. That, if the court please, is an enunciation whch has the effect, if it have any effect at all, of supporting the position of appellee in the present case. The Hutchinson case, supra, indicates that execution upon real estate will lie for the satisfaction of a support order, and the effect of it is like unto that of the Stonehill case, supra.
Feeling that the Indiana decisions are of greatest weight in this instance, appellee would respectfully call the court's attention to one more case from that jurisdiction, viz., Ginn v. Ginn (1941), 31 N.E.2d 65. Appellee earnestly urges that the decision and language of the court in that case amply support appellee's position herein. We would briefly observe the following pertinent facts in that case: Appellee filed her complaint to recover of appellant the balance of unpaid and delinquent payments due under court order wherein she, appellee, was granted a divorce and custody of their minor child, and appellant was ordered to pay $5.00 per week for support of the said child by paying same to the clerk of the court; the divorce was rendered in 1919, and the suit sought recovery of delinquent payments up to September 8, 1936, all of such payments totaling $4,675.00, of which $2,955.20 had been paid. It was shown that the appellant had previously been cited for contempt of court for failure to make ordered payments, but that he had been purged of same upon his showing upon hearing that he had been financially unable to meet the order of the court as to periodical payments. The trial court awarded judgment for $1,587.80 in favor of appellee, which judgment was affirmed on appeal by the Indiana appellate court. It is to be noted that this affirmance was by the same court that had previously decided the Pavuk case, supra, and the McCormick case, supra. On the appeal appellant urged that since he had been purged of contempt on his showing of inability to make the payments, then he could not be subject to having judgment rendered against him for the delinquency in ordered payments, that his obligation to pay ceased when he became unable to pay. In answering that contention the court said, at page 68 of the report: "We do not agree with this construction of the law relative to payment of support money. When the order of court was entered, the obligation to pay the amount stated therein was created and vested and such obligation to pay continued so long as such order existed. Certainly an obligation to pay money cannot become null, merely because of the inability of the debtor to pay. As stated heretofore, these matters might be proper for consideration in a hearing of a contempt charge, but to say that under such circumstances the obligation was discharged, would in our opinion be erroneous." One other passage in the opinion is particularly noteworthy, being at page 67 of the report: "While the fact of his inability to comply with the court's order by reason of injury, lack of work or other causes, and whether the same was much or little, were proper matters for the court to consider in arriving at a conclusion as to his guilt or innocence of contempt, yet there was no petition for a modification or change of the former order of court and that matter was in no wise adjudicated, nor as stated in Zirkle v. Zirkle, supra, could it have been in that proceedings."
The Ginn case, supra is the most recent Indiana case that counsel for appellee have been able to find on the issue here presented, and it is obvious from the facts therein stated that the position of the one there ordered to make payments was much more strained financially than the position of the appellant herein. Therefore, factually the case is a much stronger one for the proposition advanced by appellee herein and in the trial of this cause below by virtue of its holdings. Appellee, therefore, most respectfully urges that in the Ginn case we find respectable and controlling authority from the jurisdiction originally rendering the decree herein sought to be enforced, and would further urge that such holding is not only supported by authority, but certainly finds its roots in the foundational theory of our entire system of jurisprudence — reason, justice, and equity.
The decision of the United States Supreme Court in the case of Sistare v. Sistare, (1910), 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L.R.A. (N.S.) 1068, 20 Ann. Cas. 1061, is the most recent by the highest court of our nation dealing with the problem, and therein the court harmonizes the holdings of former decisions, laying down a general rule which encompasses the facts and Indiana law relative to the case presently at bar. However, the court in that case also expresses an exception to that general rule, and it is that exception which counsel for appellant recite and urge, which said exception as stated contains the phrase ". . . to such an extent that no absolute or vested right attaches to receive the installments ordered by the decree to be paid . . ." However, appellee contends that the exception to the general rule is not such as encompasses the facts and the Indiana law relative to this case, for as we have already seen, the Indiana appellate court speaks of such a right, or rather the correlative obligation, as "vested" in its opinion in the Ginn case, supra, and as quoted on page 8 of this brief and page 68 of the report in volume 31 of the Northeastern Reporter, second series.
The case of Gallant v. Gallant, supra, from which counsel for appellant quote so liberally and on which they so strongly rely does contain a thorough review, by this court, of a great number of the cases dealing with the present question. That case, however, does nothing more than appellee seeks to have done here, i.e., determine the existing law, as judicially declared, of the state rendering the decree sued on and apply that law to the factual situation here presented. That is the rule by which we are to measure, for it is so stated in the Compton case, supra, Justice McGehee speaking for the court therein.
The question herein, or elements of it, are also dealt with in the following cases: Lee v. Lee, (1924), 135 Miss. 865, 101 So. 345; Holton v. Holton, (1922), 190 N.W. 542; Steele v. Steele (1928), 152 Miss. 365, 118 So. 721; Snow v. Snow, (1937), 188 La. 660, 177 So. 793; Fanchier v. Gammill, (1927), 148 Miss. 723, 114 So. 813 (first appeal); 155 Miss. 316, 124 So. 365, (second appeal); Bolton v. Bolton, 86 N.J. Law 622, 92 A. 389; and Campbell v. Campbell, 28 Okla. 838, 115 P. 1111. The Fanchier case, supra, which appellant anticipates will be cited by appellee, is of particular value as determinative of the question of jurisdiction of the court below, which question was raised by appellant in the trial below, and the ruling of the chancellor thereon is assigned as error, although not urged by appellant on the appeal. Nevertheless, that particular question is settled by the opinion of the court as indicated therein at page 366 of the report in volume 124 of the Southern Reporter.
While some of the cases herein mentioned and discussed deal with the question of "alimony" payments, still it is generally conceded that the same rules of law applicable thereto are equally applicable to payments of "support money." In fact, the more basic considerations would seem to demand that even greater lengths should be gone to, and stronger applications made in the case of support, for in the matter of support for minor children there rests on the father serious moral obligations in addition to the legal one. Certainly truth was uttered when the Louisiana Supreme Court said, in the Snow case, supra, in speaking of the contention being forwarded by appellant in the case presently before the court: "If a judgment for alimony is not more substantial than that it is of little or no value or protection to the one in whose favor it is rendered." Snow v. Snow, 188 La. 660, 177 So. 793, 799.
This is a proceeding in chancery to obtain a decree for the purpose of enforcing by execution or otherwise in this state the collection of certain past due and unpaid installments on an allowance made for the support of Diane Hatrak, now eleven years of age, the daughter of the appellant George Hatrak, under a decree rendered by the Superior Court of Lake County, Indiana, on August 20, 1946, in a divorce proceeding wherein the appellee, Mrs. Jewel Hatrak, was awarded a divorce and the custody of such minor child and wherein the defendant therein was required to pay into the clerk's office of said Indiana Court the sums allowed at $50 per month.
(Hn 1) Although the bill of complaint is filed by the mother, custodian, and the present natural guardian and next friend of the minor, in her own name as complainant, it is manifestly a suit for the benefit of her said minor child and is one brought in the child's behalf, as shown by the nature and character of the allegations therein contained.
There was exhibited with the bill of complaint and originally made a part thereof, a duly authenticated copy of both the bill of complaint filed in the Indiana court and also such a copy of the decree rendered therein. The trial court from which this appeal here is taken, suspended the hearing during the trial in order that other papers in the foreign suit might be procured, and it is recited in the final decree thereafter rendered in the present proceeding that a duly certified copy of the proceedings had in the Indiana Court was before the court which rendered the decree now here under review.
Moreover, there was no contention made by the appellant either in his answer to the present suit or on the trial thereof that the foreign decree was invalid or that it had been modified in any respect by the Indiana Court. Nor is it claimed that the payments under the Indiana decree have been made, except that the appellant avers that he has "paid all that he could."
(Hn 2) It was shown by a certificate of the clerk of the Indiana Court, made under the Act of Congress, the amounts that have been paid under the degree according to the entries on his official records, which are presumed to be correct, leaving a balance in default in the sum of $630, being the amount sued for. The past due and unpaid installments were shown by the testimony of the appellee in the present suit to correspond to the amount sued for based upon the sums received by her on behalf of the minor child from the clerk of the Indiana Court, who is presumed to have accounted for all payments received by him. Moreover, there is no proof to the contrary.
The complaint in the instant case not only prayed for a decree for the past due and unpaid portion of the installments aggregating the said sum of $630, but also asked the trial court in this State to fix the amount of future installments to be paid for the support of the said minor child of the parties. Accordingly the trial court rendered a decree for the amount sued for in the sum of $630 and provided that future payments be made at the rate of $30 per month instead of the $50 per month provided for under the Indiana Court decree.
The appellee takes no cross-appeal from the action of the trial court in thus reducing the $50 monthly allowance, but the appellant complains of this action on the alleged ground that a court in Mississippi is without jurisdiction to render a decree either for the past due and unpaid installments under the Indiana Court decree or for the amount to be paid monthly in the future, under the full faith and credit clause of the Constitution of the United States, Article 4, Section 1 thereof, for the reason that the decree of the Indiana Court does not possess such finality as to entitle it to enforcement in this State under such full faith and credit clause of the Federal Constitution. (Hn 3) We agree with this contention as to future payments, since the Indiana Court having full jurisdiction in the premises has the right to modify the decree as to future allowances at any time, according to the financial ability of the father and the needs and requirements of the minor child. Moreover, the said defendant can not be subjected to liability under the decree of the Indiana Court for future payments of $50 per month and under a decree of our Court for the sum of $30 a month for the same purpose.
The suit here is one to enforce a compliance with the decree of the Indiana Court, on which the present suit is expressly predicated, and is not a separate and independent suit against a defendant who moved to Mississippi shortly after the rendition of the foreign decree, if indeed the Indiana Court decree is not res adjudicata as to future payments until the same shall have been modified by the court wherein the decree in that behalf was rendered.
As to the juisdiction of a court in this State to render a decree for the $630 now past due and unpaid, and which would be enforcible by execution under such decree here, we think is controlled by whether or not the statutes and decisions of the State of Indiana would authorize a court in that State to modify its decree as to such past due and unpaid allowance.
(Hn 4) An examination by us of the Indiana Code chapter on Divorce (1946 Replacement of the 1933 Edition of Burns' Indiana Statutes Annotated, § 3-1201 et seq.) and the statutes for the allowance of alimony for the wife and support money for the child of a marriage, together with an examination of the decisions of the Appellate Court of Indiana annotated under such statues, fails to disclose any authority for modification of the decree of a trial court in that state as to past due and unpaid allowances that may have accrued.
In Gallant v. Gallant et al., 154 Miss. 832, 123 So. 883, this Court held that alimony due under a permanent alimony decree rendered by a court of Louisiana could not be recovered in this State under the full faith and credit clause of the Constitution of the United States where by a provision of the Revised Civil Code of Louisiana such a decree could be annulled, varied or modified by the court rendering it. But thereafter we held in the case of Compton v. Compton, 188 Miss. 670, 196 So. 635, that since the question of whether a Louisiana judgment awarding monthly alimony to a divorced wife was revocable in Louisiana as to past due monthly installments, or was final in Louisiana so as to be enforcible in Mississippi under the full faith and credit clause of the Federal Constitution, must be decided by the laws of Louisiana and the decisions of the Louisiana courts, such past due installments could be enforced in the court of Mississippi for the reason that the Supreme Court of Louisiana held subequent to the decision in the case of Gallant v. Gallant et al., supra, when deciding the case of Snow v. Snow, 188 La. 660, 177 So. 793, that a decree for past due installments could not be revoked by a Louisiana court which rendered the original decree.
In an annotation contained in 157 A.L.R. 182, supplementing an annotation in 41 A.L.R. 1419 and which supersedes the suplemental annotations in 46 A.L.R. 1200, and 57 A.L.R. 1113, it is recognized that generally speaking the right to alimony under a decree for future installments of alimony becomes absolute and vested upon the installments becoming due and is then protected by the full faith and credit clause as a debt of record, provided no modification decree has been made prior to the maturity of the installments, and the cases of Gallant v. Gallant et al., supra, and Compton v. Compton, supra, are discussed and analyzed under the annotation.
We are, therefore, of the opinion that the Indiana decree here involved is enforcible in this State as to the past due and unpaid installments in the courts of this State under the full faith and credit clause of the Federal Constitution but that under the cases cited in the said annotation and numerous other decisions, such decree is not enforcible as to future installments.
(Hn 5) In the case of Pavuk v. Scheetz, 108 Ind. App. 494, 29 N.E.2d 992, the Indiana Court held that in order for a divorced wife to recover a judgment on support money ordered paid for the support of children, and being due and unpaid, it is incumbent upon her to prove what amounts she was required to pay and did pay, or the reasonable value of commodities furnished by her for the maintenance of said children out of her own earnings or funds, and that such expenditures were required on her part because of the needs of the children awarded to her custody, and the failure of the father to pay support money in accordance with the decree of the court granting such custody to her. The appellee herein testified that she was furnishing the child a home in an apartment at Hammond, Indiana, for which she pays $53.50 per month as rent; that she has to hire someone to take care of the child while she is at work, to whom she pays $5 per week and furnishes a lunch, in addition to having to feed and clothe, send to school, etc., this child and all at an expense of at least $50 per month since the rendition of the decree awarding its custody to her. And, of course, she has had to defray any dental, medical and other expenses of the child during that time. We are, therefore, of the opinion that at the high cost of living which has prevailed since the rendition of such decree the proof is ample to comply with the law in Indiana in order to entitle her to recover the past due payments of support money sued for.
The decree of the trial court will, therefore, be affirmed insofar as the judgment in the sum of $630 is concerned, and reversed and the bill dismissed insofar as the award of the $30 per month in future payments is provided for.
Affirmed in part, reversed in part and decree here accordingly.