Judgment. Decree. Marriage and Divorce. Evidence, Of judgment of another State. Practice, Civil, Hearing by judge without jury, Conduct of trial: reopening of hearing.
A decree of a court of another State for the payment of a fixed sum of money found to be due and payable at the date of the decree to a wife for the past support of herself and her minor child is to be regarded, prima facie at least, as a final decree, although an order for future payments as a provision for future support, being liable ordinarily to modification at any time, is subject to the control of the court which made the order and so is not a final order for the payment of a fixed sum.
A court of Michigan having jurisdiction of the parties in chancery proceedings granted a divorce to a wife and ordered that the husband pay her a certain fixed sum each month for five years "as permanent alimony," that during a part of the year a minor child of the parties should be with his mother and during the rest of the time with a grandmother, the mother of the husband, and that, while the child was with the grandmother, the husband should pay for his support. The husband became in arrears in the payment of the fixed alimony and, the grandmother dying, the wife took exclusive custody of the child and paid out sums for his support. Thereupon, over two years after the original decree of divorce, upon petition of the wife, the Michigan court made a decree determining the amount of alimony due in arrears, "allowing" a certain sum to the wife "for schooling and medical attendance upon said child . . . to this time" and ordering execution against the husband for both sums, and the wife brought an action upon the decree in this Commonwealth, at the hearing of which by a judge without a jury the statutes of Michigan and decisions of the Supreme Court of Michigan were introduced in evidence, as well as testimony of a qualified expert that the decree of the Michigan court was a "final decree." The judge found for the plaintiff, and this court, after a review of the evidence including the decisions of the Michigan Supreme Court, held, that the finding was warranted by the evidence.
A court of Michigan having jurisdiction of the parties in chancery proceedings granted a divorce to a wife and ordered that the husband pay her a certain fixed sum each month for five years "as permanent alimony," that during a part of the year a minor child of the parties should be with his mother and during the rest of the time with a grandmother, the mother of the husband, and that, while the child was with the grandmother, the husband should pay for his support. The husband became in arrears in the payment of the fixed alimony, and, the grandmother dying, the wife took exclusive custody of the child and paid out sums for his support. Thereupon, over two years after the original decree of divorce, upon petition of the wife, the Michigan court made a decree determining the amount of alimony due in arrears, "allowing" a certain sum to the wife "for schooling and medical attendance upon said child . . . to this time" and ordering execution against the husband for both sums, and the wife brought an action upon the decree in this Commonwealth, at the hearing of which by a judge without a jury it appeared that the only notice to the defendant of the pendency of the petition for the decree which was the subject of the action in this Commonwealth was by a notice to one who had been his counsel in the original divorce proceedings, and there was undisputed evidence introduced by the defendant that, immediately after the original decree in the divorce proceedings, the authority of such counsel had been terminated, although his appearance had not been withdrawn from the court docket. There was testimony of a qualified expert for the plaintiff as to the law of Michigan, which was controverted, that "in a case in chancery an appearance continued indefinitely." The judge ruled that, "upon the undisputed evidence in the case, the decree of the Michigan court . . . is entitled to full faith and credit under the United States Constitution." The defendant alleged exceptions and contended that on the undisputed evidence there was no proper service upon the defendant of notice of the petition upon which the decree sued on was based. Held, that the petition was not a new or original proceeding, but was incidental to the original divorce suit, and that, the defendant having been properly before the court originally, no further personal service upon him was necessary, and that, on the evidence before him, the trial judge was warranted in finding that the defendant had sufficient notice of the petition in the Michigan court.
A number of copies of papers filed in divorce proceedings between certain parties in a court of Michigan, bound together and bearing a certificate of the clerk of the court in which the proceeding was that "the writings annexed are true copies of originals on file and of record in [his] office, and that said originals, together, constitute the record of the proceedings of said court in this cause," is a proper record under R.L.c. 175, § 71, to prove the record of the Michigan court in an action at law in this Commonwealth upon a decree therein for alimony and money expended for the support of a minor child, although by a copy of the "calendar entries" in such proceedings, which was one of the papers included in those thus bound together, it appears that there were not included among the papers offered copies of some papers on file with the clerk of the Michigan court.
An action upon a decree of a Michigan court, in which were involved questions as to the law of Michigan, was tried before a judge without a jury, and an expert from Michigan testified and was cross-examined. About a month after the case had been argued fully by counsel and after the expert had returned to Michigan, the judge sent for both parties and told them what his opinion then was on the matters in issue, stating among other things that he was not satisfied that proper service had been made upon the defendant, and that, if he could be satisfied on that matter, he should find for the plaintiff. On application by the plaintiff and subject to an exception by the defendant, the case thereupon was reopened, a deposition upon written interrogatories of another expert in Michigan was taken, and the case was reheard and judgment rendered for the plaintiff. Held, that the action of the judge in reopening the case was within his power and was not the subject of exception.
SHELDON, J.
1. The fundamental question in these cases is whether an action can be maintained in this Commonwealth upon the decrees of the Circuit Court of Michigan which are declared on. If they are final decrees for the payment of ascertained sums of money constituting a debt of record, they are entitled to full faith and credit in every State and may be enforced by suit in the same way as any other judgments or decrees. And, while there has been some difference in the decisions, we regard it as now settled that prima facie at least a decree for the payment of a fixed sum of money found to be already due and payable to a wife for the past support of herself and her children is to be regarded as a final decree, although an order for future payments as a provision for future support, being ordinarily liable to modification at any time, is subject to the control of the court which made the order, and so is not a final order for the payment of a fixed sum. That was the conclusion reached by this court in a carefully considered opinion. Page v. Page, 189 Mass. 85. It is supported by other decisions. Purdon v. Blinn, 192 Mass. 387, and cases cited. Knapp v. Knapp, 134 Mass. 353. McIlroy v. McIlroy, 208 Mass. 458. Mayer v. Mayer, 154 Mich. 386. Trowbridge v. Spinning, 23 Wn. 48. Lynde v. Lynde, 181 U.S. 183, and 162 N.Y. 405.
The defendant contends, however, that under the law of Michigan these decrees were not final, because under the statutes of that State they might at any time, upon the petition of either party, be revised and altered. 3 Mich. Comp. Laws (1897), §§ 8630-8641. Upon this question at the trial each party put in evidence, besides these statutes, certain decisions of the Supreme Court of Michigan and there was testimony of a qualified expert. Among these decisions were the following: In Nixon v. Wright, 146 Mich. 231, it was held that an order for alimony in a decree for divorce, being subject to modification at any time by the court which made it (§ 8641, ubi supra), and that court having full power to enforce it, is not such a judgment for money that an action at law can be maintained upon it. The point decided went no further than our decision in Allen v. Allen, 100 Mass. 373, and does not settle the question before us. But the language of the opinion tends to sustain the defendant's contention. In Jordan v. Westerman, 62 Mich. 170, there is a dictum that a decree for alimony vests in a wife no absolute right thereto. In Perkins v. Perkins, 10 Mich. 425, there is a similar dictum, and it was held that an order of the Circuit Court, opening an order for alimony and ordering a reference to a commissioner to hear evidence and make report to the court, was not a final decree from which an appeal could be taken to the Supreme Court. But it seems to be implied in the opinion that an order for past alimony made upon the coming in of the report would be such a final decree. In Mayer v. Mayer, 154 Mich. 386, an action was sustained for arrears of payments ordered by an Oklahoma court to be made to a wife in a divorce case for her own support, but she was not allowed to recover arrears of payments, which the defendant had been ordered to make to her for the support of their children on the ground that these were subject to revision at any time by the Oklahoma court. This refusal was on the same reasoning as our decision in Page v. Page, 189 Mass. 85, and scarcely helps the defendant. But in Martin v. Thison, 153 Mich. 516, it was held that an award of alimony to a divorced wife is a valid claim against the estate of her deceased husband. This agrees with our decision in Knapp v. Knapp, 134 Mass. 353. And in Ulman v. Ulman, 148 Mich. 353, a bill was maintained to collect out of land in one county a fixed amount which had been decreed for alimony in a suit for divorce in another county. It was decided also that the order for alimony was none the less a final decree because it might be modified by the court which had entered it. The court said: "Authorities are abundant which hold that such a decree, for a fixed sum, is a judgment of record, and will be received by other courts as such. And such a decree rendered in any State of the United States will be carried into judgment in any other State. Lynde v. Lynde, 162 N.Y. 405; affirmed, 181 U.S. 183. Barber v. Barber, 21 How. 582. . . . It is urged that the statute (§ 8641, 3 Comp. Laws) gives to the court which renders the decree creating the lien power to modify its decree, and thereby destroys its character as a final decree enforceable in any other forum. We do not agree with this contention," citing Trowbridge v. Spinning, 23 Wn. 48, to the same effect.
Upon this evidence, with the oral testimony of Baldwin and the other evidence stated in the exceptions, the judge had a right to find, and it now must be taken that he finally did find, that these decrees were final adjudications which might have been appealed from. As this was a question of fact and there was evidence which warranted the finding, we cannot revise it.
2. The defendant contends that these decrees were entered without any proper or sufficient notice to him, and so that they are not binding upon him. In our opinion, these petitions were not new or independent proceedings, but were merely incidental to the original suit, of which he had had due notice and in which he had entered an appearance. The court doubtless would take care that proper steps were taken to give him knowledge of these proceedings, but it was not necessary that personal service should be made upon him as if new actions had been instituted, unless the laws of Michigan so required. The petitions asked only for further proceedings in the original action, proceedings which were authorized and contemplated by the terms of the statute under which the original action had been brought. The general rule is that in such a case no new personal service is needed. Nations v. Johnson, 24 How. 195. Fitzsimmons v. Johnson, 90 Tenn. 416, cited with approval in Pennoyer v. Neff, 95 U.S. 714, 734. Laing v. Rigney, 160 U.S. 531. 2 Freem. Judgments, (4th ed.) § 569. 2 Black, Judgments, § 912. In Lynde v. Lynde, 162 N.Y. 405, and 181 U.S. 183, the decree for past alimony which was sustained was entered upon the same kind of notice to the defendant that was given to this defendant upon the petition on which the second decree here was entered. Upon the Michigan statutes and decisions and rules of court and the oral evidence before him the judge was well warranted in finding that this general rule was recognized in Michigan and governed the proceedings that had been taken. It followed that the defendant had sufficient notice of both the petitions upon which the decrees sued on were made.
3. The record offered in evidence was rightly admitted. It was not denied that it was duly attested and authenticated. It came fully within the rules of Brainard v. Fowler, 119 Mass. 262, and Knapp v. Abell, 10 Allen, 485. The objection is that the copies contained in the record did not include certain papers which appeared by the "calendar entries" to have been filed in the case. But the certificate was that "the writings annexed are true copies of originals on file and of record . . . and that said originals together constitute the record of the proceedings" of the court. We cannot say against this certificate that the missing papers were part of the record. Every paper put on the files is not necessarily a part of the record. As to what was apparently a clerical error in the second decree sued in, by misreciting the date of the decree declared on in the first case, that does not seem to us important or material.
4. Under these circumstances the ruling that upon the uncontroverted evidence the decrees of the Michigan court were entitled to full faith and credit was not erroneous. Nor do we find any material error in the rulings or refusals to rule which were excepted to. We need not consider whether the defendant's fifth request was correct as an abstract proposition. The refusal to make specific findings of fact was not the subject of exception. Jaquith v. Morrill, 204 Mass. 181.
5. It was for the judge to decide whether he would reopen the case to allow further evidence to be taken. His conclusion is not the subject of exception. Watts v. Stevenson, 165 Mass. 518. There was no error of law, after the reopening, in admitting Golden's deposition, and the interrogatories therein specifically objected to were not objectionable.
In each case the exceptions must be overruled.
So ordered.