THOMAS v. THOMAS (1939)

This is an appeal by the plaintiff from a judgment in an action which sought to establish a decree of divorce which had theretofore been obtained in Butte county, California, as a judgment against the defendant in Los Angeles county. All of the allegations of the complaint were found to be true by the trial court and all of the allegations of the answer were found to be untrue, with the exception of some small items covered by the statute of limitations. It is the contention of the plaintiff that the Butte county decree should have been established in Los Angeles county.

Matters involving the Thomas divorce case have been in the appellate courts of this state before. See Thomas v. Superior Court, 9 Cal.App.2d 383, 49 P.2d 898, and Thomas v. Superior Court, 129 Cal.App. 282, 18 P.2d 755.

The complaint, after alleging the matters required for statistical purposes, alleges that on September 19, 1928, there was instituted in the superior court of Butte county an action for divorce and other relief, in which the plaintiff herein was plaintiff and the defendant herein was defendant; that said complaint alleged that the defendant was guilty of extreme cruelty toward the plaintiff, setting forth the facts thereof, and a full true and correct copy thereof is attached to the complaint herein and made a part hereof; that jurisdiction was obtained over the defendant; that on October 2, 1928, an interlocutory decree of divorce was entered in said action, a full true and correct copy of which is attached to the complaint, marked “Exhibit B”, and made a part hereof; that said decree became final, has never been vacated, set aside, appealed from or modified, and is now in full force and effect; that plaintiff has at no time remarried; that the defendant failed to pay certain payments which became due under said decree and that there is now due the sum of $3,870, together with interest thereon; that plaintiff and defendant are now and have been for more than five years last past residents of the county of Los Angeles; wherefore, plaintiff prays that the court make and enter an order or decree herein embodying the said decree of the Butte county court and containing provisions similar to said decree requiring defendant to pay to plaintiff the sums as above set forth, and the further sum of $50 per month commencing with May 1, 1936, and that defendant be ordered to forthwith pay to plaintiff said sums and all sums that may accrue after the commencement of this action until the further order of the court and further providing that payment thereof be compelled in the manner provided by the laws of California as in such cases made and provided.

Answering the allegations of the complaint the defendant admitted the entry of the interlocutory decree of divorce, but denied that the same is now in full force or effect, and alleged certain facts to sustain the contention that said decree had been modified. He denied the allegations of the complaint with relation to defendant's alleged failure to make the payments alleged to have fallen due, and alleged that all payments were made, and alleged that the final decree of divorce in said action modified and superseded the interlocutory decree with regard to the payment of alimony, and finally the defendant alleged that the action was barred by the statute of limitations.

After hearing the evidence, the trial court found that all the allegations of the complaint were true, as heretofore set forth, but on said findings gave judgment solely for a money judgment for $3,000 with interest, being the amount due at the time of the filing of the action, except the part thereof which was barred by section 336, subdivision 1, of the Code of Civil Procedure, refusing by implication to enter a judgment of substantially the same form as that upon which the action was based.

Authorities on the question are meager. 15 Cal.Jur. 258; 34 C.J. 1080; 15 R.C.L. 898.

It has been determined by decisions of our higher courts that it is proper to establish in this state the decree of a foreign state obtained in a divorce action, and that such establishment shall have the same force and effect as a local judgment in a divorce action, including the requirement to make future monthly payments of alimony, together with the power to enforce the provisions thereof by contempt proceedings. Creager v. Superior Court, 126 Cal.App. 280, 14 P.2d 552; Straus v. Straus, 4 Cal.App.2d 461, 41 P.2d 218, 42 P.2d 378; Palen v. Palen, 12 Cal.App.2d 357, 55 P.2d 228.

In the early case of Ames v. Hoy, 12 Cal. 11, where it was claimed that an action did not lie on a judgment obtained in one of the district courts of the state, the court says: “Several questions are made: 1. That suit cannot be maintained in this State on a domestic judgment. At common law, actions could be so maintained. (1 Ch.Pl. 103–4.) There is nothing in our statute which divests the right; and the policy and inconvenience, suggested by appellant, applied as well in England as here. The chief argument is, that there is no necessity for a right of action on a judgment, inasmuch as execution can be issued to enforce the judgment already obtained, and no better or higher right or advantage is given to the subsequent judgment. But this is not true in fact, as in many cases it may be of advantage to obtain another judgment in order to save or prolong the lien; and in this case the advantage of having record evidence of the judgment is sufficiently perceptible. The argument that a defendant may be vexed by repeated judgments on the same cause of action, is answered by the suggestion that an effectual remedy to the party against this annoyance is the payment of the debt.”

In the case of Lilly–Brackett Co. v. Sonnemann, 163 Cal. 632, 126 P. 483, 484, 42 L.R.A.,N.S., 360, Ann.Cas.1914A, 364, the court said: “It may be inconvenient that two judgments should subsist in the same state against the same person on the same demand; but no such inconvenience can exist in the case of judgments rendered in different states; and there is no sufficient reason for the application of the purely technical doctrine of merger, subversive of substantial justice, as it would be, in such cases. Indeed, in view of the fact that one satisfaction would satisfy both judgments, there is little to be said in favor of the doctrine of merger, reasonable as that doctrine may be in ordinary cases, by a second judgment obtained upon the first, even in the same state.”

On his part the defendant contends that it is against public policy and therefore improper to permit the second court to make orders with respect to the future payment of alimony where it has no power to modify these orders from time to time. He gives no other reason why such a judgment would be against public policy, but in our view the new judgment would reserve the power to modify the order respecting alimony from time to time. Furthermore, it would be a great convenience to the parties to have the continuing action now pending in Butte county established in Los Angeles county where both of the parties now reside.

The case comes before us on the judgment roll alone, and all presumptions and intendments are to be indulged in favor of the trial court. Delanoy v. Delanoy, 216 Cal. 23, 13 P.2d 513.

In this connection the defendant contends that it must be here presumed that the evidence taken in the trial court fully justified its denial of the relief which the plaintiff sought. He says it must be presumed that the evidence showed the following: (1) That the plaintiff remarried after the commencement of the action and before the trial; (2) that there was no evidence of necessity for alimony on the part of the plaintiff justifying the continuance of the alimony award; (3) that the defendant was and would be unable to pay any alimony, and (4) that a remedy by way of contempt under the Butte county divorce decree was sufficient in fact and that no further remedies were necessary.

Taking up these questions in their order, (1) the plaintiff alleged that she was not remarried at the time of the commencement of the action. No issue was raised in the trial court that the plaintiff had remarried after the filing of the complaint, and this court may not indulge such a presumption. (2) We have made a rather full symposium of the pleadings. There is no issue raised in the pleadings that any change had arisen justifying a discontinuance of the alimony award. Such an issue still may be raised at any time in the trial court. We may not indulge a presumption that such an issue was raised and that there was evidence to support it in the trial court. (3) The same is true with regard to the issue of inability on the part of the defendant to pay any alimony. (4) Defendant's fourth contention raises a question of law which this court may determine, and in our view the facts found justify the establishment of the Butte county divorce decree in Los Angeles county.

The trial court properly applied the statute of limitations section 336, subdivision 1, Code of Civil Procedure. Reay v. Heazelton, etc., 128 Cal. 335, 60 P. 977.

The judgment is reversed with directions to the trial court to enter a judgment in compliance with the above decision.

I dissent. In Ames v. Hoy, from which quotation is made in the majority opinion, the second judgment was obtained in the same county as the earlier judgment, the record of which had been destroyed by fire. In Lilly–Brackett Co. v. Sonnemann, from which quotation is also made in the majority opinion, the California judgment was based on a judgment obtained in the state of Massachusetts, upon which a judgment had been rendered in the state of Washington. The language quoted is by Mr. Bigelow in his note to section 599a of Story on Conflict of Laws. In my opinion two judgments may not be existent in the same action in separate counties in California, both providing for the same future payments. We are not called upon to determine whether the judgment is correct in so far as it applies to past due installments.

CRAIL, Presiding Justice.

I concur: McCOMB, J.