Aldrich v. Aldrich

Calhoun, President,

dissenting:

I agree that the portion of the Florida decree which states that the alimony awarded shall “become a charge upon his estate during her lifetime” cannot have the effect of creating a “charge” in the sense of a lien, equitable or otherwise, upon the husband’s real estate in this state. The decree was operative on the husband personally, but could not have the extra-territorial effect of creating a “charge” upon his real estate situated in West Virginia. Wilson v. Braden, 48 W. Va. 196 , pt. 1 syl., 36 S. E. 367 ; Woodcock v. Barrick and Yost, 79 W. Va. 449 , pt. 3 syl., 91 S. E. 396 ; Tennant’s Heirs v. Fretts, 67 W. Va. 569, 571 , 68 S. E. 387, 388 ; 50 C.J.S., Judgments, Section 889, page 485.

To the extent, however, that the majority opinion undertakes to determine the mere incorrectness of the Florida *286 court’s judgment awarding alimony to be paid to the wife for her lifetime, I respectfully dissent.

Under Section 1, Article IV of the Constitution of the United States, a judgment of a court of another state must be accorded full faith and credit in the courts of this state. A judgment of a court of another state may be attacked in a court of this state only for fraud in its procurement or lack of jurisdiction in the court by which it was rendered. 50 C.J.S., Judgments, Section 889e, page 481. If there is any exception to the principles stated above, I have never learned of it, though such fundamental principles have been ad-herred to and reaffirmed by this Court until this time in cases almost without number, some of the more recent ones being as follows: Gavenda Brothers Inc. v. Elkins Limestone Co., 145 W. Va. 732 , 116 S. E. 2d 910 ; Gardner v. Gardner, 144 W. Va. 630 , 110 S. E. 2d 495 ; Consumer Credit Co. of Waynesburg v. Bowers, 143 W. Va. 748 , 104 S. E. 2d 869 ; Bennett v. Bennett, 137 W. Va. 179 , 70 S. E. 2d 894 ; Paull v. Cook, 135 W. Va. 833 , 65 S. E. 2d 750 ; Pukas v. Pukas, 129 W. Va. 765 , 42 S. E. 2d 11 ; Perkins v. Hall, 123 W. Va. 707 , 17 S. E. 2d 795 .

The only way a judgment or decree of a court in another state may be assailed in a court of this state is by showing that it is void. Pukas v. Pukas, 129 W. Va. 765, 770 , 42 S. E. 2d 11, 13 . “The only escape from obedience to the rule that a judgment of a sister state is entitled to full faith and credit lies in a holding that the judgment is void and en-tiled to no standing even in the state in which its was rendered.” 30A Am. Jur., Judgments, Section 246, page 314. That is to say, it must appear that, because of a lack of jurisdiction of the person or of the subject matter, “the judgment or decree was void.” Adkins v. Adkins, 142 W. Va. 646 , pt. 3 syl., 97 S. E. 2d 789 . “The judgment of a sister state must be given full faith and credit unless it is absolutely void.” 30A Am. Jur., Judgments, Section 246, page 314.

Courts of this state “may not refuse to enforce a judgment of another state because it involves some contravention of the public policy of this state.” Paull v. Cook, 135 W. Va. *287 833 , pt. 5 syl., 65 S. E. 2d 750 . “The judgment or decree of a court of a sister state, having jurisdiction of the parties and the subject matter of suit, is res judicata as to all matters determined thereby. The parties are estopped by such final judgment or decree from again litigating the same matters in a court of this state.” R. D. Johnson Milling Co. v. Read, 76 W. Va. 557 , pt. 13 syl., 85 S. E. 726 . “A decree relating to alimony, support or maintenance, entered in a court of another state having jurisdiction of the parties and subject matter, is entitled to full faith and credit in the courts of this State.” Bennett v. Bennett, 137 W. Va. 179 , pt. 7 syl., 70 S. E. 2d 894 . “The faith and credit given is not to be niggardly but generous, full.” Johnson v. Muelberger, 340 U. S. 581 , 95 L. Ed. 552 , 71 S. Ct. 474 .

The purpose and effect of the full faith and credit clause “are to extend the res judicata effect of a judgment from the state of its rendition to all other states.” 50 C.J.S., Judgments, Section 888b, page 469; 30A Am. Jur., Judgments, Section 236, page 304.

“Thus, 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, modification or reexamination of the judgment, or of the grounds on which it is based, or of the merits of the original cause of action. Thus, jurisdiction to render the judgment having been established or being presumed, the full faith and credit clause precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles upon which the judgment is based. Whatever mistake of law may underlie a judgment, it is, under the full faith and credit clause, conclusive as to all the media concludendi.” 30A Am. Jur., Judgments, Section 239, pages 307-08. See also Stewart v. Northern Assurance Co., 45 W. Va. 734 , pt. 1 syl., 32 S. E. 218 , 44 L.R.A. 101 ; Paull v. Cook, 135 W. Va. 833, 841 , 65 S. E. 2d 750, 755 ; Dry v. Rice, 147 Va. 331 , 137 S. E. 473 .

*288 A judgment of a court of a sister state is binding and conclusive upon the courts of this state “not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto, and coming within the legitimate purview of the subject-matter of the action. * * * An erroneous ruling of the court will not prevent the matter from being res judicata.” Sayre’s Admr. v. Harpold, 33 W. Va. 553 , pt. 1 syl., 11 S. E. 16 .

The decree or judgment of a Florida court must be accorded by the courts of this state the same binding effect on the parties thereto as in the state where rendered. If the matter is one which cannot be again litigated there, it cannot be reexamined, relitigated or modified by this or any other court of this state. Stewart v. Stewart, 27 W. Va. 167 , pt. 4 syl. “An adjudication which precludes re-litigation of a question in the state in which it took place may be pleaded in bar in a subsequent suit in another state between the same parties and in which the same matter is involved and decisive of the issue.” Roller v. Murray, 71 W. Va. 161 , pt. 3 syl., 76 S. E. 172 , L.R.A. 1915F 984 , Ann. Cas. 1914B 1139, App. Dism., 234 U. S. 738 , 58 L. Ed. 1570 , 34 S. Ct. 902 . The judgment of a sister state “must have the same faith and credit here, as it had in the state where it was rendered.” Gilchrist v. Oil and Oil Land Co., 21 W. Va. 115 , pt. 1 syl. “It is well settled that the judgment of a sister state must be accorded in this state the same faith and credit which it has in the state where rendered.” Crumlish’s Admr. v. Central Improvement Co., 38 W. Va. 390 , pt. 5 syl., 18 S. E. 456 , 23 L.R.A. 120 , 45 Am. St. Rep. 872 ; Wells-Stone Mercantile Co. v. Truax, 44 W. Va. 531 , pt. 1 syl., 29 S. E. 1006 ; 50 C.J.S., Judgments, Section 889b, page 473.

A judgment of a sister state may not be challenged on the ground “that the basis of the action was tainted with fraud. That matter is foreclosed by the judgment.” Only fraud “in the procurement” of the judgment may be considered. International Harvester Co. v. Solazo, 116 W. Va. 34 , pts. 4 and 5 syl., 178 S. E. 429 .

If the court which rendered the foreign judgment is a court of general jurisdiction “the presumption is, it had jur *289 isdiction of the particular case, and, to render the decree void, this presumption must be overcome by proof.” Stewart v. Stewart, 27 W. Va. 167 , pt. 6 syl. There is no such presumption in relation to judgments of inferior courts, such as justices of the peace, but such judgments are, nevertheless, entitled to full faith and credit in courts of all other states. 50 C.J.S., Judgments, Section 896, page 513.

Respectable authority appears to support the proposition that the full faith and credit clause will forbid one to question the jurisdiction of the court to render a judgment in a case in which he appeared and participated as a litigant. Davis v. Davis, 305 U. S. 32 , 83 L. Ed. 26 , 59 S. Ct. 3 ; Morrissey v. Morrissey, 1 N. J. 448, 64 A. 2d 209 , 12 A.L.R. 2d 378 .

The legal question presented herein must not be confused with our statutory provision that the writ of prohibition shall lie when the inferior court lacks jurisdiction of the subject matter in controversy, “or, having such jurisdiction, exceeds its legitimate powers.” Code, 53-1-1. My research fails to disclose any authority for the proposition that this Court may refuse to give full faith and credit to the Florida judgment merely on the ground that that court, having jurisdiction, exceeded its legitimate powers. I believe all legal authorities leave the proposition unquestionable that it is not enough to show that the Florida judgment is merely erroneous or voidable. It must appear to be absolutely void, a nullity.

I believe also that the proposition is beyond question that, if the Florida court had jurisdiction of the person and of the subject matter, including jurisdiction to award alimony, its judgment cannot be assailed by this Court by reason of anything the Florida court did, however erroneous and without legal authorization, in the exercise of that jurisdiction. I find in this case no basis whatsoever for asserting that the Florida court lacked jurisdiction of either the person or of the subject matter. The contrary appears beyond question. That being true, the judgment of that court cannot be questioned in the absence of a showing that the judgment was procured by fraud, and there is no contention of that nature.

*290 We must be careful not to confuse jurisdiction with an improper or erroneous exercise of jurisdiction. The Florida court had jurisdiction of the subject matter and the parties, including jurisdiction to determine and fix alimony. Jurisdiction to decide all matters pertaining to alimony included jurisdiction to decree rightly as well as wrongly, correctly as well as incorrectly, lawfully as well as unlawfully. “The test of a court’s jurisdiction is whether or not it had power to enter on the inquiry, not whether its conclusion in the course thereof was correct, for the power to decide necessarily carries with it the power to decide wrongly as well as rightly.” 21 C.J.S., Courts, Section 27, pages 38-39; St. Lawrence Co. v. Holt and Mathews, 51 W. Va. 352 , 41 S. E. 351 ; Stewart v. Tennant, 52 W.Va. 559 , pt. 8 syl., 44 S. E. 223 ; Adkins v. Adkins, 142 W. Va. 646 , 97 S. E. 2d 789 ; 11 M.J., Jurisdiction, Section 10, page 436. “Where a court has lawfully acquired jurisdiction of the parties and the subject matter of the litigation, subsequent departure by the court from the rules of law or procedure in the exercise of that jurisdiction is not jurisdictional error.” Blankenship v. Mongini, 105 W. Va. 530 , pt. 2 syl., 143 S. E. 301 .

I believe that the legal principles referred to herein establish the fact that the majority opinion, without warrant in law or precedent and contrary to basic legal and constitutional principles, arrogates to this Court the right to sit as a reviewing or appellate court in appraising and reexamining the mere correctness of the final judgment of a court of general jurisdiction in a sister state. The correctness of that judgment could not be collaterally challenged even in the State of Florida or in any other manner by any court, except by legally authorized appellate procedure, in the absence of a showing of fraud in the procurement of the judgment or lack of jurisdiction of the Florida court to pronounce it.

The decree pronounced by the Florida court is not contrary to the public policy of this state. I am not prepared to concede that the decree is erroneous either under the Florida law or the law of West Virginia. Hale v. Hale, 108 W. Va. 337 , pt. 2 syl., 150 S. E. 748 . If it is erroneous, void *291 able, or in part unauthorized by law, that is a matter which an appropriate appellate court in Florida may determine; but this Court may not. But even if the decree were contrary to the public policy of West Virginia, this Court, in accordance with authorities previously cited herein, would be required to accord such decretal judgment full faith and credit.

It not correct to say, as does the majority opinion, that “jurisdiction” to grant alimony or support to a wife is dependent solely on divorce statutes. It is true that jurisdiction to grant a divorce is wholly a creature of statute and did not exist at common law. State ex rel. Hammond v. Worrell, 144 W. Va. 83 , 106 S. E. 2d 521 . The validity of the Florida divorce, however, is not in question. But on the contrary, courts of equity independently of statutes pertaining to alimony, separate maintenance or otherwise, have jurisdiction to entertain suits for alimony, separate maintenance, or to compel a husband to support his wife. Alimony is not a mere creature of statute. Lieberman v. Lieberman, 142 W. Va. 716, 724 , 98 S. E. 2d 275, 281 ; Snyder v. Lane, 141 W. Va. 195 , 89 S. E. 2d 607 ; Davis v. Davis, 137 W. Va. 213 , 70 S. E. 2d 889 ; Wolford v. Wolford, 133 W. Va. 403 , 56 S. E. 2d 614 ; Dailey v. Brennan, 123 W. Va. 261 , 14 S. E. 2d 617 . “A court of equity, independently of proceedings for divorce, on the ground of inadequate remedy at law, may decree maintenance to a wife who has been deserted by her husband.” Lang v. Lang, 70 W. Va. 205 , pt. 1 syl., 73 S. E. 716 , 38 L.R.A. (N.S.) 950, which case was decided prior to the enactment of our statutes providing for suits for separate maintenance. “Alimony is not merely an incident of divorce; it is a substantive right, which may be decreed to any wife under a given state of facts. This inherited power of equity courts, independent of any statutes, still exists and may be enforced in a suit brought for that purpose alone.” White v. White, 181 Va. 162, 168 , 24 S. E. 2d 448, 451 . See also Bray v. Landergren, 161 Va. 699 , 172 S. E. 252 ; Heflin v. Heflin, 111 Va. 385 , 14 S. E. 2d 317 , 141 A.L.R. 391 ; Wilson v. Wilson, 178 Va. 427 , 17 S. E. 2d 397 . “According to the weight of authority, a court of equity has inherent jurisdiction, independent of any action for divorce and irrespective *292 of any statute, to entertain a suit by a wife for alimony or separate maintenance; * * 42 C.J.S., Husband and Wife, Section 614b, page 213.

The majority opinion undertakes to place its own construction not only on Florida statutes, but also upon the Florida trial court’s and the Florida appellate court’s construction of such statutes. The majority opinion omits to refer to the case of Hale v. Hale, 108 W. Va. 337 , 150 S. E. 748 , which was cited in counsel’s brief and relied upon in oral argument. In that case, this Court decided that, by a proper construction of the divorce statutes of this state, a trial court may provide for alimony during the entire life of the wife, “to be paid to her through her life, that is, to be paid by the husband while living and out of his estate after his death, * * Is it the position of the majority opinion that a Florida court may reexamine a decree of that nature entered by a West Virginia trial court, and declare it void merely because the Florida court disagrees with the construction placed on decisions of this Court or West Virginia statutes by a trial court of this state?

The majority opinion cites various authorities from other jurisdictions involving legal principles similar to those presented in the case of State ex rel. Hammond v. Worrell, 144 W. Va. 83 , 106 S. E. 2d 521 . In that case the Court held that since suits for divorce exist only by virtue of statute, a court in such a suit may adjudicate only in relation to such matters as are authorized by statute; that such statutes of this state do not provide for jurisdiction to partition real estate in a divorce suit; and that a decree in a divorce suit which undertakes to partition real estate is void for lack of jurisdiction. But courts of Florida are given statutory authority or jurisdiction in divorce suits to make adjudications pertaining to alimony. Therefore, decisions of the type referred to are wholly lacking in pertinency. Here I repeat that which is so fundamental in law, including numerous prior decisions of this Court; that is, jurisdiction to adjudicate in relation to alimony or any other subject includes jurisdiction to decide or adjudicate rightly as well as wrongfully, cor *293 rectly as well as incorrectly, lawfully as well as unlawfully. That is why appellate courts are established.

In my judgment, the majority opinion embodies a labored effort to justify a legally untenable proposition and represents a serious deviation from sound, well settled constitutional principles. I, therefore, respectfully dissent.