
    CLAIMS FOR ALIMONY PAYABLE IN INSTALLMENTS.
    Common Pleas Court of Montgomery County.
    Katie M. Weis v. Charles F. Weis.
    Decided, March 25, 1918.
    
      Alimony — Continuing Jurisdiction — Deprives an Allowance Payable in Installments of the Finality of a Judgment.
    
    A decree for alimony, made payable from time to time, where entered in a state in which there is continuing jurisdiction in alimony cases, is not a final order or judgment, and can not be made the basis of an action in an Ohio court for recovery of- the amount claimed to have accrued under such decree as upon a judgment or debt of record. But where the decree includes an allowance of attorney’s fees in a specified sum, judgment may be taken for the amount of such fees.
    
      Nathan Fulton for plaintiff.
    
      Joseph W. Shafts, contra.
   Snediker, J.

This plaintiff sues upon a decree of divorce and alimony rendered on March 30, 1906, in Cook county, state of Illinois, on the chancery side of the circuit court. The action is brought as upon a judgment, the plaintiff claiming that there was a judgment, order and decree by the court that the defendant, Charles F. Weis, pay to this plaintiff, or to her solicitor, the sum of $15 on the first day of May, 1906, and the sum of $15 on the first of each and every month thereafter, and that he pay the sum of $50 to the plaintiff or her solicitor as for her solicitor’s fee on or before June 1, 1906. And further that this defendant pay the costs and charges of the action. Plaintiff claims to have paid the costs and charges in the action and says that no part of the judgment, order and decree of the Cook County Circuit Court has been paid by this defendant and that to this date in all it amounts to the sum of $3,000. The petition is drawn as of March 30, 1917.

By his amended answer the defendant sets up five defenses but as we propose to confine our opinion to the third defense, it is the only one to which we make reference in full. By his third defense the defendant says:

“That by the laws of the state of Illinois, notably by paragraph 4233 of the Illinois statutes annotated, when a divorce shall be decreed the court may make an order touching the alimony and maintenance of the wife but said court may on application from time to time make such alterations in the allowance of alimony and maintenance as shall appear reasonable and proper, and that the alimony alleged by said petition herein to have been allowed by said Illinois court against this defendant and payable by him from time to time was not for a fixed .and final amount and did not create a vested interest therein in plaintiff! and was not and is not by said Illinois law a final order of judgment of said court.”

Replying to this third defense in the amended answer, the plaintiff says that under the laws of the state of Illinois as held by the courts of said state in different cases, alimony past due under a decree entered at the time the decree of divorce was rendered is a vested debt and property right and can not be set aside, modified, or time of payment changed by subsequent order of the court.

As we have said, this action is brought by the plaintiff upon the theory that the order of the Cook County Circuit Court at the April term of 1906 in so far as it relates to a provision for alimony to be paid on the part of a defendant is a judgment of that court. The entire entry made by the Cook County Circuit Court was a decree of divorce as between the plaintiff and the defendant on account of the defendant’s fault, and thereafter the following: ‘ ‘ The court further finds that the defendant is able to pay and should pay permanent alimony to complainant in the sum of $15 per month commencing May 1st, 1906. The court further finds that the defendant should pay to the. complainant for her solicitor’s fee for services of solicitor in this cause the sum of $50, and that said sum is a reasonable, usual and customary fee. It is therefore ordered, adjudged and decreed by the court that the defendant pay the complainant or her solicitor for her use the sum of $15 on the first day of May, 19Q6, and the further sum of $15 on the first day of each and every month thereafter, and that he pay the further sum of $50 to the complainant or her solicitor as for her solicitor’s fees on or before June 1st, 1906. It is further ordered that the defendant pay the costs and charges of this suit and that execution issue therefor.” .

This allowance of alimony by the court was made under the provisions of paragraph 4233 of the Illinois statutes which is in these words:

“When a divorce shall be decreed the court may make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as, from the circumstances of the parties and the nature of -the ease, shall be fit, reasonable and just; and in case the wife be complainant, to order the defendant to give reasonable security for such alimony and maintenance, or may enforce the payment of such alimony and maintenance in any other manner consistent with the rules and practice of the court. And the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody and support of the children, as shall appear reasonable and proper.”

It is under Section 1, Article IV of the Constitution of the United States that the plaintiff urges her right to a judgment upon the foregoing finding of the Cook county court. Section 1 of Article IV reads as follows:

“Sec. 1. Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state and the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved and the effect thereof.”

It is our duty, therefore, upon the presentation of this record in evidence to give it full faith and credit. It is being here presented as a judgment. Is it entitled to that credit? If it is not, then the plaintiff should not have a judgment here entered thereon. If it is, she should have. The question is one of evidence. Evidentially taken we are to determine whether or not this record shows a judgment and is entitled to be received as such in proof thereof.

A judgment is the final determination of the rights of the parties and whether or not the force and effect of the decree of the Cook county court is that of a judgment may be best determined from the view taken by the Supreme Court of the -United States, the Supreme Court of Illinois and the Supreme Court of Ohio, all of which are before us in different decisions to which we will refer. In the application of these decisions we keep in mind the last sentence of paragraph 4233: “and the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, * * * as shall appear reasonable and proper.”

In the case of Lynde v. Lynde, 181 U. S., page 183, in rendering the decision Justice Gray says:

“The decree of the Court of Chancery of New Jersey, on which this suit is brought provides, first, for the payment of $7,840 for alimony already due, and $1,000 counsel fee; second, for the payment of alimony since the date of the. decree at the rate of $80 per week; and third, for the giving of a bond to secure the payment of these sums, and, on default of payment or of giving bond, for leave to apply for a writ of sequestration, or a receiver and injunction.
“The decree for the payment of $8,840 was for a fixed sum already due, and the judgment of the court below was properly restricted to that. The provision of the payment for alimony in the future was subject to the descretion of.the Court of Chancery of New Jersey, which might at any time alter it, and was not a final judgment for a fixed sum. ’ ’

The foregoing case came into the United States Court on error from the Supreme Court of the state óf New York. In the courts of the latter state an effort was made to secure a judgment upon the New Jersey decree. The court of appeals in deciding the case there say in the third syllabus:

“A provision in such foreign decree for the payment of alimony in the future, however, remaining subject to the discretion of the foreign court, lacks that con elusiveness which requires the courts of this state to enforce it, inasmuch as the provision of the Federal Constitution referred to should be deemed to relate to judgments or decrees which not only are conclusive in the jurisdiction where rendered, but which are final in their nature.”

Let us now turn to the opinion of the Supreme Court of Illinois as found in the 195 Ill., page 335, the case of Welty v. Welty, where the court in the opinion say:

“Appellant further contends, that the decree of divorce and for alimony, entered by the court on June 9, 1899, was a final decree, and that the order of June 13, 1900, having been entered at ,a subsequent term, was void, upon the 'alleged ground that the court had no jurisdiction to make such order. The general doctrine is invoked that, when an action is finally determined by the entry of final judgment and the lapse of the term, the court has exhausted its jurisdiction. This contention also is without force. It has always been the 'law in this state that a decree for alimony is subject to modification by the court, in which the decree was entered, according to the varying circumstances of the parties. (Barclay v. Barclay, 184 Ill., 375.) Section 18 of the Divorce act provides that ‘the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody and support of the children, as shall appear reasonable and proper.’' Under this section of the statute the court is invested with power to declare the termination of all alimony upon the occurrence of facts reasonably justifying such a declaration. (Lennahan v. O’Keefe, 107 Ill., 620.) In Cole v. Cole, 142 Ill., 19, we said page 23: ‘The power over the subject-matter of alimony is not exhausted by the entry of the original order, but is, under the statute, continuing, for the purpose, at any time, of making such alterations thereof as shall appear to the chancellor, in the exercise of a judicial discretion, reasonable and proper. (Foote v. Foote, 22 Ill., 425; Stillman v. Stillman, 99 Id., 196; Lennahan v. O’Keefe, su-pra.)

Nor is such a decree for alimony entitled to the credit of a debt of record. In the case of Barclay v. Barclay, 184 Ill. Reports, the court say:

“It has been frequently held that the commitment of a defendant for contempt for refusing to pay alimony is not an imprisonment for debt from which he can claim exemption under the provisions of a constitution prohibiting imprisonment for debt. (Wightman v. Wightman, 45 Ill., 167; Carlton v. Carlton, 44 Ga., 216; Menzie v. Anderson, 66 Ind., 239; Allen v. Allen, 100 Mass., 373.)
“The liability to pay alimony is not founded upon a contract, but is a penalty imposed for a failure to perform a duty. It is not to be enforced by an action at law in the state where the decree is entered, but is to be enforced by such proceedings as the chancellor may determine and adopt for its enforcement. As heretofore shown, it may be enforced by imprisonment for contempt without violating the constitutional provision prohibiting imprisonment for debt. The decree for alimony may be changed from time to time by the chancellor, and there may be such circumstances as would authorize the chancellor to even change the amount to be paid by the husband, where he is in arrears in payments required under the decree. Hence such alimony can not be regarded as a debt owing from the husband to the wife, and not being so, can not be discharged by an order in the bankruptcy court.” Noyes v. Hibbard, 15 L. R. A., 394.

We now turn to the decision of the Supreme Court of Ohio as found in the 83 Ohio State at page 265, in the case of Gilbert v. Gilbert' et al, where the court quote with approval and apply in the opinion the following language:

“An order for alimony payable in installments made in a divorce .action in one state subject under the laws of that state to modification, will not support an action as on a judgment in another- state as the same is not a final judgment for a fixed sum. Lynde v. Lynde, 162 N. Y., 405; Bleuer v. Bleuer, 2Okla., 25.”

So that we have the opinion of the Supreme Court of the United States, of the Court of Appeals of the state of New York, of the Supreme Court of the state of Illinois and of the Supreme Court of the state of Ohio, all to the effect that alimony such .as is here decreed by the court of Cook county is not a final judgment, and there is found in these decisions also the rule that such an order made under the laws of a state where it is subject to modification will not support ,an action as upon a judgment in another state. And as the rendition of a judgment upon the order here sued upon would be a violation of what these courts have declared to be the law, the answer of the defendant as found in his third cause of defense is in our opinion good as against the petition of the plaintiff.

Supporting the authorities heretofore quoted with respect to the force and effect of a decree for alimony of this nature are 189 Mass., page 85; 27 Okla., page 25; 80 Conn., page 1.

In view of the foregoing, our finding is for the defendant except as to the fifty dollars allowance for solicitor’s fees for which in accord with the opinion of the Supreme Court of the United States in the Lynde case a finding should be and is made for the plaintiff.  