Rosenberg v. Rosenberg

Urner, J., delivered the opinion of the Court. The judgment in this case was rendered in a suit on a decree of a Virginia court of competent jurisdiction requiring the present appellant to pay his wife, the appellee, forty dollars per month as alimony. The decree was passed on April 24th, 1920, in a successful suit by the wife for a divorce a mensa et thoro. It was alleged and proved in this action that the Virginia decree was duly rendered, and that no alimony has been paid under its terms since J une 15th, 1921.

In the trial below the plaintiff obtained judgment for seventeen hundred dollars, which was the amount of alimony accrued from the date of the last payment to February 4th, ⁵¹ 1925, at which time the plaintiff had applied to the Virginia court to enlarge its former decree into one of absolute divorce. One of tbe two exceptions in the record on this appeal was taken because the court refused to admit oral testimony, offered by tbe defendant, to prove that there had been no further proceedings in the divorce suit subsequent to the filing of the defendant’s answer to the plaintiff’s petition for the enlargement of the decree. The defense to the suit was based on the theory that the provision for alimony was temporary and subject to modification, and was consequently not a final judgment upon which a suit in another state could be founded. This theory was urged in support of a prayer to withdraw the case from the jury.

It was because of the rejection of the prayer that the second exception was reserved. The decision of the Supreme Court of the United States in Sistare v. Sistare, 218 U. S. 1 , is conclusive of the main question here presented. That was a suit brought in Connecticut for the recovery of overdue and unpaid instalments of alimony under a decree of the Supreme Court of the State of New York. By a statute of that state it was provided that a decree for alimony could be modified by the court at any time on application of either party to the suit and after the other party had been duly notified.

This was construed by the Federal Supreme Court as not authorizing the modification of the decree as to instalments of alimony which had accrued prior to the application to have it changed. The Supreme Court said that “every reasonable implication must be resorted to against tbe existence of such a power, in the absence of clear language manifesting an intention to confer it,” and it was decided, that the suit in Connecticut on the New York decree was maintainable, and that the opposite ruling by the Supreme Court of Connecticut was in conflict with the full faith and credit clause of the Federal Constitution. The following conclusions were stated: “First, that, generally speaking, where a decree is rendered for alimony and is made payable in future instalments, the right to such