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District Court of Appeal, Second District, Division 2, California.

Pearl C. HOPKINS, Plaintiff and Appellant, v. Guy B. HOPKINS, Defendant and Respondent.

Civ. 20855.

Decided: April 28, 1955

Courtney A. Teel, Pasadena, for appellant. George B. Bush, Los Angeles, for respondent.

This is an action on a foreign judgment. Appellant sued her former husband for the sum of $26,760—the accrued installments on a judgment of divorce entered in the District Court of Colorado, May 9, 1927. She demands a reversal and insists that the basic authority relied upon by the trial court is ‘in hopeless conflict with sound established law.’

Prior to October 18, 1926, the parties resided in the City of Denver with their three minor girls. On that date, they made a property settlement agreement with respect to the care of their children and the support of appellant. She was to have exclusive custody of each child until the latter should arrive at her majority. He agreed to pay appellant ‘by way of support and maintenance’ the sum of $150 per month commencing November 1, 1926, on the first day of each and every month thereafter. Other sums were to be paid to appellant, but such covenants are not involved herein. By the same instrument, the payments therein provided ‘shall forever release him from any further payments' for alimony, attorney's fees or court costs. Thereafter, respondent sued appellant for divorce in Denver County and a decree of the District Court was duly entered May 9, 1927, dissolving the marriage ties and approving the property settlement of October 18, 1926. The further finding was that no payments have been made pursuant to such decree within the period of five years last past. The court concluded that the Colorado judgment is too uncertain and is not enforcable and adjudged that appellant take nothing by her action.

Appellant contends that (1) the evidence does not support the findings; (2) the findings do not support the judgment; (3) that by virtue of respondent's payments of the sums of $10 per month for the support of each of the minor children until they respectively became 18 years of age, he is estopped to contend that the judgment was too uncertain.

Appellant argues that the judgment is one for the payment of money; that it was not subject to modification as to accrued payments; that the attainment by the daughters of their majorities did not automatically release respondent from his obligations under the judgment, citing Biewend v. Biewend, 17 Cal.2d 108, 109 P.2d 701, and Tomkins v. Tomkins, 89 Cal.App.2d 243, 200 P.2d 821.

While it is true that some language of the cited decisions and of Hall v. Hall, 105 Colo. 227, 97 P.2d 415, and Zlaten v. Zlaten, 117 Colo. 296, 186 P.2d 583, appears to support the contentions of appellant, yet such support is far short of that which would operate to effect a just judgment. The three girls had become adults by August 28, 1940. No payments under the Colorado decree were paid after February 1932. The court at Denver was never requested to clarify its decree or to declare the amount of the monthly payments due appellant and the amount payable to each of the girls. The Colorado decree contains nothing from which a California court could conclude what portion of $150 monthly payment was due appellant. Her allegation that $120 per month was intended for her was gratuitous and was found to be untrue. The decree provides expressly for the specified payments to appellant of $150 per month ‘in lieu of all payments of alimony and support money, and by way of support and maintenance’ for appellant and the minor children. It was not drawn with a view to its enforcement in another jurisdiction twenty-five years after its entry. Appraising it according to its form and tenor, its author evidently contemplated that the mother and her infant daughters would all continue as a unit and that the girls would never attain their majorities. Otherwise, the Colorado court might have segregated the sums payable for each of the three children and their mother, and not have left respondent weighted with the support of three adult daughters, years after their support had ceased to be his legal obligation. To do justice now in such a situation requires the watchful care of the court which rendered the judgment. Luthe v. Luthe, 12 Colo. 421, 430, 21 P. 467, 470.

The court below had no power to adjudicate the respective rights of the mother and three daughters to the monthly payments. Ibid. It is true the gross amount to be paid appellant as ‘support and maintenance for the first party and their said minor children, the sum of One Hundred Fifty Dollars ($150.00) per month’ was included in their property settlement before the divorce action was filed. But its contents with the consent of the authors were merged into the decree, Gavette v. Gavette, 104 Colo. 71, 75, 88 P.2d 964; Johnson v. Johnson, 119 Colo. 551, 600, 206 P.2d 597, which was thenceforth the vital document affecting the rights of the parties. The trial court could not, under any known authority, rewrite their contract or modify the Colorado judgment. It provides for the payment of a definite sum for the benefit of four specified persons and that cannot be changed by the courts of another state. The Colorado decree must be construed according to its meaning as derived from the document in its entirety. No single clause or phrase may be placed under a microscope and enlarged to distort the document. Its interpretation must be liberal and reasonable and according to the general intent as revealed by all its provisions, Miranda v. Miranda, 81 Cal.App.2d 61, 65, 183 P.2d 61; In re Estate of Nathan, 89 Cal.App.2d 789, 201 P.2d 865, keeping in view the situation and relation of the parties. A strained construction of such a decree would result in some injustice.

Appellant contends that her action is one for debt accrued at the rate of $150 per month; that she is entitled to a new judgment for all accruals ‘as against which the statute of limitations has not run,’ citing Article IV, section 1, Federal Constitution. Of course, full faith and credit are given by the courts of this state to the judgments of sister states as section 1 requires. But that provision does not require that a court must accept just any decree at its apparent face value and renew it without regard to substantial justice. Section 1 of Article IV is a rule of evidence and not of jurisdiction. State of Wisconsin v. Pelican Insurance Co., 127 U.S. 265, 292, 8 S.Ct. 1370, 32 L.Ed. 239. Giving full faith and credit to a decree originating in another state means merely that it must be received in evidence, weighed and considered. It does not mean that the courts of California must, in effect, issue an execution on the foreign judgment. If the judgment is of such nature as would entitled either party to a modification thereof, the California court should refuse to renew it until the court of its origin has had an opportunity to revise it. The jurisdiction of the latter to revise and modify its decrees in divorce actions is continuous. Diegel v. Diegel, 73 Colo. 330, 215 P. 143, 144; Cartier v. Cartier, 94 Colo. 157, 28 P.2d 1010, 1012. By reason of the law that the Colorado court still has jurisdiction to modify its decree, and of the fact that the infants of respondent have grown to womanhood and are no longer entitled to be supported by him, the trial court properly denied renewal of the Colorado judgment.

Such was our holding in Kahn v. Kahn, 123 Cal.App.2d 819, 268 P.2d 151, where substantially the same facts were litigated. After disposing of the claim on the part of the Kahn children who had attained maturity ten years prior to the filing of the action on the Ohio judgment, we undertook to demonstrate that Mrs. Kahn's personal claim to a portion of the $300 monthly installments awarded her in Ohio could not be the basis of a judgment in California. The Ohio decree did not indicate the portion of the award that was intended by the court as alimony. ‘The judgment is, therefore, too uncertain to be enforceable * * *. If appellant is to realize upon the judgment, she must resubmit the matter to the Ohio court for clarification. * * * if a wife seeks to recover the unpaid installments on her decree from another court and the amount of her award is the combined sum of alimony and child support and her children have attained their majorities and the court is unable to determine the portion intended for alimony as distinguished from the part allowed for child support, then the entire award of such decree is illegal and nonenforceable.’ Ibid., 123 Cal.App.2d at page 824, 268 P.2d at page 154.

Under the doctrine of stare decisis, contrary to appellant's contention, the Kahn decision controls this appeal.


MOORE, Presiding Justice.

McCOMB and FOX, JJ., concur.

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