Shibley v. Shibley , 181 Wash. 166 ( 1935 )

A decree in equity for an ascertained and specific amount of money is of no higher dignity than a judgment at law for a sum of money. A decree for alimony is a debt of record as much as any other judgment for money. 1 R.C.L. 951.

As we said in In re Van Alstine, 21 Wash. 194, 57 P. 348:

"Here is a decree for money, — a decree analogous to a money judgment at law, which may be enforced by process against property. It differs from a decree for the recovery of something in specie, of which a party has been deprived, and for the loss of which compensation in damages cannot be made, or requiring the performance of some specific act, other than the payment of money, which it is the duty of a party to perform."

In Pennington v. Gibson, 57 U.S. 64, 14 Law Ed. 847, the court said:

"We lay it down, therefore, as the general rule, that in every instance in which an action of debt can be maintained upon a judgment at law for a sum of money awarded by such judgment, the like action can be maintained upon a decree in equity which is for an ascertained and specific amount, and nothing more; and that the record of the proceedings in the one case must be ranked with and responded to as of the same dignity and binding obligation with the record in the other."

In some states, the remedial features for the enforcement of a judgment of alimony are provided by statute. However, even in the absence of a statute authorizing such procedure, under the inherent power of the court to enforce its decrees and orders according to its equity powers, a decree for alimony may be enforced by attachment for contempt. Phillips v. Phillips,165 Wash. 616, 6 P.2d 61.

The foregoing rule has no application to an action on a foreign decree for alimony which is for the enforcement of a debt of record. The full faith and credit clause of the constitution of the United States (Art. IV, § 1) does not apply to the remedial features specifically given by the statute, or those which are inherent in courts of equity for the enforcement of a judgment of alimony. That clause of the constitution merely compels the recognition of the money feature of such judgment, and permits its collection by ordinary process. Bamboschek v. Bamboschek,150 Misc. 885, 270 N.Y. Supp. 741; Lynde v. Lynde, 162 N.Y. 405,56 N.E. 979, 48 L.R.A. 679, 76 Am. St. 332.

I can not agree with the rule adopted by the supreme courts of California, Minnesota and Mississippi. The rule announced in Inre Cave, 26 Wash. 213, 66 P. 425, 90 Am. St. 736, and cited inPhillips v. Phillips, 165 Wash. 616, 6 P.2d 61, respecting the power of a court of equity to enforce a decree for alimony by attachment for contempt, applies to the enforcement of a judgment for alimony by contempt proceedings only in a suit for a divorce or separation brought in a court of this state. Until such time as our legislature declares it to be the public policy of this state that a foreign decree for alimony can be enforced by attachment for contempt, I can not subscribe to the majority opinion. I agree that, in an action in a court of this state on such foreign judgment, a money judgment for the unpaid amount of alimony may be recovered, but as stated in the dissenting opinion in Ostrander v. Ostrander, 190 Minn. 547, 252 N.W. 449:

"Such a suit in a court of this state is not a suit for divorce or separation, and the judgment here is for the recovery of an indebtedness established by the foreign judgment."

That view is entertained by authority no less distinguished than that cited in support of the majority opinion. Mayer v.Mayer, 154 Mich. 386, 117 N.W. 890, 19 L.R.A. (N.S.) 245, 129 Am. St. 477; Weidman v. Weidman, 274 Mass. 118, 174 N.E. 206, 76 A.L.R. 1359.

"Owing to the fact that an action on a foreign decree for alimony is in theory for the enforcement of a debt of record, and not for compelling the payment of alimony as such, remedies of the local forum for the enforcement of the payment of alimony are not ordinarily available to enforce a foreign decree. Furthermore, provisions in a foreign decree as to the mode of its enforcement are in their nature matters of procedure, and are operative only within the jurisdiction wherein it was rendered." 1 R.C.L. 958.

In Lynde v. Lynde, 162 N.Y. 405, 56 N.E. 979, 76 Am. St. 332, 48 L.R.A. 679, which was affirmed in 181 U.S. 183,21 S. Ct. 555, cited as a foot note in support of the foregoing, the supreme court of the United States said:

"By the Constitution and the act of Congress, requiring the faith and credit to be given to a judgment of the court of another State that it has in the State where it was rendered, it was long ago declared by this court: `The judgment is made a debt of record, not examinable upon its merits; but it does not carry with it, into another State, the efficacy of a judgment upon property or persons, to be enforced by execution. To give it the force of a judgment in another State, it must be made a judgment there; and can only be executed in the latter as its laws may permit.' McElmoyle v. Cohen, 13 Pet. 312, 325; Thompson v.Whitman, 18 Wall. 457, 463; Wisconsin v. Pelican Ins. Co.,127 U.S. 265, 292; Bullock v. Bullock, 6 Dickinson (51 N.J. Eq.) 444, and 7 Dickinson (52 N.J. Eq.) 561."

Appellant is entitled to no more than a money judgment upon the California judgment, which would be an ordinary judgment at law and not a decree of an equity court; and there could not be applied to it the equitable remedy of enforcement by contempt proceedings.

TOLMAN and GERAGHTY, JJ., concur with MILLARD, C.J.