Dreesen v. Dreesen

WOOD, J.

Plaintiff commenced an action in the Court of Common Pleas of Allegheny County, Pennsylvania, in 1932, whereby she sought a divorce

a mensa et ihoro.

An answer was filed by defendant and thereafter upon the customary

[480]

proceedings in Pennsylvania an order was made by the court directing defendant to pay to plaintiff the sum of $30 per week as alimony

pendente lile.

After making certain payments defendant fell in arrears. He thereafter established a residence in the state of California. On August 5, 1937, the Pennsylvania court ordered judgment entered in favor of plaintiff and against defendant in the sum of $5,235, the amount then accrued and unpaid on the alimony order. On September 21, 1937, defendant filed a petition in the court of common pleas to reopen the matter of the judgment therein entered on August 5, 1937. This petition was denied and an appeal was taken by defendant but the appeal was dismissed for failure of defendant to comply with a court order to pay the alimony due or furnish a bond to secure the payment. Defendant prosecutes this appeal from a judgment obtained by plaintiff in the superior court in the sum of $5,235, the amount of the judgment ordered by the Pennsylvania court on August 5, 1937.

It is the contention of defendant that since the action for divorce is still pending in Pennsylvania the judgment in that state is not such a final judgment as to entitle plaintiff to sue upon it in California under the full faith and credit clause of the Constitution of the United States. It is argued that the Pennsylvania court may in its final disposition of the proceedings 'modify the judgment heretofore entered. The rule applicable is stated in the leading case of

Sistare

v.

Sistare,

218 U. S. 1, 16 [30 Sup. Ct. 682, 54 L. Ed. 905, 20 Ann. Cas. 1061, 28 L. R. A. (N. S.) 1068] : “Generally speaking, where a decree is rendered for alimony and is made payable in future instalments the right to such instalments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the instalments, since, as declared in the Barber Case, ‘alimony decreed to a wife in a divorce or separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is’. Second, that this general rule, however, does not obtain where, by the law of the státe in which a judgment for future alimony is rendered, the right to demand and receive such future alimony is discretionary with the court which rendered the de