Worthley v. Worthley

SPENCE, J.

I dissent.

This case is before us on rehearing. On the first hearing, no claim was made that the prior New Jersey decree for plaintiff’s support was modifiable retroactively as well as prospectively. We therefore assumed in our first opinion that such support decree was a final judgment, and that it “was entitled to full faith and credit in California.” (Worthley v. Worthley, (Cal.) 267 P.2d 23 .) Upon rehearing, it has been shown that the New Jersey support decree was not a final judgment for the reason that it was modifiable both retroactively and prospectively under the law of New Jersey. The majority opinion therefore concedes that “we are not constitutionally bound to enforce defendant’s obligations under it, ’ ’ but it holds that the trial court should have enforced the New Jersey decree with such modifications as might have appeared proper. I cannot concur in these views.

*475 Prior to the decision in the present case, this state has never sanctioned the modification by its courts of any decree of a sister state for the support of a viie. (Biewend v. Biewend, 17 Cal.2d 108 [ 109 P.2d 701 , 132 A.L.R. 1264 ]; Handschy v. Handschy, 32 Cal.App.2d 504 [ 90 P.2d 123 ]; Barns v. Barns, 9 Cal.App.2d 427 [ 50 P.2d 463 ] I would adhere to the established law of this state and avoid the confusion which is bound to result from the disapproval of the above-cited cases. (See Barns v. Barns, supra, p. 430 .)

Furthermore, the New J ersey judgment which plaintiff seeks to enforce in California is modifiable retroactively, as well as prospectively, under the law of New Jersey,- but the majority opinion nevertheless requires its enforcement and modification by the courts of this state. This will result in confusion worse confounded, as the courts of each of several states, including New Jersey, might be called upon to modify the same decree, both retroactively as well as prospectively. In my opinion, the New Jersey decree, until made final by the courts of that state, is based upon shifting sands, which furnish no firm foundation upon which to predicate a judgment in any other jurisdiction.

The courts of New York dealt with a similar New Jersey decree in 1948. (Champey v. Champey, 80 N.Y.S.2d 206 .) The wife there sought to enforce the New Jersey decree in the courts of New York. The judgment in favor of the wife was reversed by the Supreme Court, Appellate Division, and it said: 1 ‘ This action could not be maintained until the amount of the arrears accruing under the decree obtained in New J ersey, was definitely fixed by the courts of that state. This was not done leer e. Madden v. Madden, 136 N.J. Eq. 132 [ 40 A.2d 611 ].” The wife then had the amount fixed by the New Jersey court and thereafter obtained enforcement of such final judgment in the courts of New York. , (Champey v. Champey, 92 N.Y.S.2d 838 .)

With respect to the admittedly valid Nevada decree of divorce which followed after the New Jersey decree for support of the wife, this court has held that such a divorce decree terminates all rights to further payments under a prior decree for wife support, even though the prior support decree was entered in this state. (Cardinale v. Cardinale, 8 Cal.2d 762 [ 68 P.2d 351 ].) The majority does not mention the Cardinale case. It seems illogical to me for this court to hold that the trial courts here must enforce, as a matter of comity, a prior New Jersey support decree which is modifiable both retro *476 actively and prospectively, when it held in the Cardinale ease that it would not enforce, under similar circumstances, a prior California support decree which was modifiable only prospectively.

Certain eases cited in the majority opinion are clearly distinguishable. They involved in effect the modification by our courts of foreign decrees with respect to the custody and support of children who had become domiciled in this state. Such matters as custody and support of children are not subject to binding contracts between the parents, no final judgment is ever entered anywhere with respect to such custody and support, and the state where the children may become domiciled has a paramount interest in the welfare of such children.

The majority opinion makes reference to the Uniform Reciprocal Enforcement of Support Aet./(Code Civ. Proc., §§ 1650-1690.j/A reading of that act shows that it has no bearing on the problem before us. It sets up certain procedures for criminal and civil enforcement, but when the civil procedures are followed and this state acts as a responding state, it makes its own initial determination of the amount of support to be imposed. (Code Civ. Proc., §§ 1682-1683.)

Further, the majority assumes that the present law places a hardship on plaintiff “by requiring the plaintiff to return” to N.ew Jersey to obtain a final judgment before seeking to enforce it here. There is nothing in the record to show that plaintiff is not still residing in New Jersey or that the law of New Jersey would require her actual presence for the purpose of obtaining such final judgment. It appears to me far better to require that the New Jersey decree should be made final in that state before the courts of this state should be compelled to attempt its enforcement or modification.

Under the cited eases, plaintiff has stated no cause of action for enforcement or modification of the New Jersey decree. The trial court therefore properly denied plaintiff any relief, and regardless of the ground upon which the trial court may have based its ruling, I would affirm the judgment.

Shenk, J., and Schauer, J., concurred.