(dissenting).
In the trial court, Mrs. Catlett sued for a money judgment for the amount of past due and unpaid child support money which had accrued under a Texas divorce decree entered in 1955. Her action in the Oklahoma court was in form an ordinary suit on a foreign judgment. Foreign judgments (of other states of this country) are enforced in the state of the forum under the full faith and credit clause of the United States Constitution, Art. IV, Sec. 1, and 28 U.S.C.A. § 1738 (formerly 28 U.S.C.A. § 687).
Under that clause, it is well settled that only foreign judgments which are final and binding are enforceable in the forum state. In 50 C.J.S. Judgments §'868, it is said:
“In order that an action may be maintained in one state on a foreign judgment or decree, it is necessary that the judgment or decree should be a valid personal and final adjudication, remaining in full force and virtue in the jurisdiction of its rendition, and capable of being there enforced by final process. * * *
“Since, ordinarily, an action cannot be maintained on a valid foreign judgment that defendant do or refrain from doing an act other than the payment of money, the judgment or decree must also be for the payment of money, and must be of a nature to create a definite, absolute, and unconditional indebtedness against defendant * * (Emphasis supplied.)
The phrase “final process” is defined in Black’s Law Dictionary, 3rd Edition, as *949“The last process in a suit; that is, writs of execution”.
It is equally well settled that under the full faith and credit clause, “ * * * no greater effect need he given to any judgment of a court of one state than is given to it in the state where rendered”; 30A Am. Jur., Judgment, Sec. 237. The congressional enactment implementing the full faith and credit clause provides that judgments from other states “ * * * shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken” (emphasis supplied). 28 U.S.C.A. § 1738.
In this case the defendant pleaded and proved the Texas law on the subject of orders for future payments of child support money. Article 4639a, Texas Civil Statutes. For this reason, the rule that in the absence of proof, the law of a foreign jurisdiction is presumed to he the same as the law of the forum, is not applicable. 12 O.S.1961, Secs. 484 and 541, et seq.; Ex parte Langley, Okl.Cr., 325 P.2d 1094; Harrison v. Burton, Okl., 303 P.2d 962. I therefore do not agree that the rights of the parties under the Texas decree are to he determined by Oklahoma law. In Clester v. Heidt’s Estate, Okl., 353 P.2d 699, there was no proof as to the foreign law. The opposite is true here.
It therefore becomes necessary to examine the Texas law on the subject of orders for future child support payments. After such an examination, it is my view that (1) Texas orders for future child support payments are not final and binding as they must be to be entitled to full faith and credit, because they may, in effect, be retrospectively modified; and (2) even if they were enforceable under the full faith and credit clause, they should not be given force and effect so far beyond the Texas law as to deprive a party of property without due process of law.
Article 4639a of the Texas Civil Statutes is not merely a statute outlining “procedure to he followed in modifying a divorce decree because of change of conditions”. It is the sole statutory basis in Texas of divorce court orders for future child support payments (payments to be made after the date of the judgment).
Before the adoption of Article 4639a in 1935, Texas courts were without authority to enter orders for future child support payments. For a review of the law then existing in Texas, see Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 75 A.L.R. 1305. Art. 4639a may be said to be the response of the Texas Legislature to the remarks of the Texas Supreme Court in the Cunningham case. The statute provides in pertinent part:
“Sec. 1 * * * said court may by judgment, order either parent to make periodical payments for the benefit of such child or children, until same have reached the age of eighteen (18) years, or, said court may enter a judgment in a fixed amount for the support of such child or children, and such court shall have full power and authority to enforce said judgments by civil contempt proceedings * * *. Said court shall have power and authority to alter or change such judgments, or suspend the same, as the facts and circumstances and justice may require, upon notice * * *.”
Under this statute, the court may do either one of two things: (1) it may order periodical payments for child support to become due in the future until the child reaches the age of 18; or (2) it may enter a judgment for a fixed amount for child support. The court has power “to alter or change such judgments”. (Notice that “judgments” is plural and not singular.) The sentence last above quoted gives the court power to alter or change both kinds of judgments (periodical payments or fixed amount). Certainly any change in a “fixed amount” judgment would be a retrospective modification. Since the same authority to “alter or change” is given in both cases, it would seem that a judgment for past due periodical payments for child support would *950also be subject to retrospective modification.
The question whether, under Article 4639a, Texas judgments for periodical child support payments are subject to retrospective modification is concededly one for Texas courts to decide, and no case precisely in point has been found. We doubt that any such case will ever be found. The reason lies in the provision of Art. 4639a that the courts of Texas shall have power “to enforce said judgments by civil contempt proceedings”. Under this clause, the uniform holding of Texas courts has been to the effect that orders for future child support payments are enforceable only by contempt proceedings. Grubbs v. Grubbs, Tex.Civ.App., 164 S.W.2d 216, 217; Youngblood v. Youngblood, Tex.Civ.App., 163 S.W.2d 731; Berg v. Berg, Tex.Civ.App., 232 S.W.2d 783; Freeland v. Freeland, Tex.Civ.App., 313 S.W.2d 943. Texas courts cannot reduce child support arrearages to lump sum judgment, Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119; they cannot be enforced by garnishment or execution, McDonald v. Mercantile National Bank, Tex.Civ.App., 162 S.W.2d 991; Clay v. Siercovich, Tex.Civ.App., 388 S.W.2d 25; they do not create debts, Freeland v. Freeland, supra; and they cannot be enforced against the estate of the divorced husband after his death, Clay v. Siercovich, supra.
In a word, since in Texas no lump sum judgment for child support arrearages may be obtained, and no debt is created, no practical situation can arise in which the Texas court is called upon to retrospectively modify a judgment for past due pei'iodical payments for child support; the only remedy for the petitioner lies in the contempt proceedings authorized by Art. 4639a.
Ordinarily, in the 16 or 17 states which permit retrospective modification of child support orders, the question arises in connection with an effort to reduce child support arrearages to a lump sum judgment. See cases cited in annotation beginning at 6 A.L.R.2d 1277. Since in Texas no lump sum judgment for such arrearages may be obtained in any case, Texas courts apparently have dealt with this question only in an abstract way. In Ex Parte Padfield, 154 Tex. 253, 276 S.W.2d 247, the court said that Art. 4639a does not “ * * * invest the court with any retroactive authority”. That case was a habeas corpus proceeding brought by Padfield, who had been adjudged in contempt of court (in Texas) for failure to make child support payments ordered in a Colorado divorce decree. No effort to reduce child support arrearages to a lump sum judgment was involved, and no prayer for the retrospective modification of a Texas child support order was before the court. I believe the quoted statement from Ex Parte Padfield is mere dictum, and not sufficient, under the rule of stare decisis, to constitute a determination of this question.
It may be noted, however, that substantially the same relief (retrospective modification of a child support order) is always available under proper circumstances in the course of contempt proceedings for the enforcement of the order. In Texas, “involuntary inability to pay” is a good defense in a civil contempt action. Ex Parte Steinhauser, 133 Tex.Cr.R. 166, 109 S.W.2d 485; Ex Parte Helms, 152 Tex. 480, 259 S.W.2d 184; Ex Parte Kollenborn, 154 Tex. 223, 276 S.W.2d 251. In the last cited case, for example, the former husband, who was in arrears to the extent of $1700 in his child support payments, was ordered confined until he purged himself of contempt by the payment of $1000 to the wife. In practical effect, since no other remedy was open to the wife, the husband had the benefit of a $700 retrospective modification of the child support order.
Gard v. Gard, 150 Tex. 347, 241 S.W.2d 618; Stout v. Stout, Tex.Civ.App., 214 S.W.2d 891; and Caples v. Caples (CCA 5), 47 F.2d 225; are not helpful in the case now before us. In those cases, child support judgments from other states were dealt with in courts in Texas, and they are authority only for the proposition that child support orders from Idaho, Louisiana and California courts, respectively, are entitled *951to full faith and credit, and will be enforced, in Texas. In this connection, see Bowles v. Bowles, Tex.Civ.App., 251 S.W.2d 774, in which the Texas court refused to enforce the alimony provisions of a Michigan divorce decree for the reason that under Michigan law the past due payments were subject to retrospective modification.
Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L.R.A,N.S., 1068, 20 Ann.Cas. 1061, is not authority for the proposition that all foreign child support decrees are enforceable in the forum state under the full faith and credit clause. In that case, the U. S. Supreme Court was in effect invited to overrule either one of two of its prior decisions (Barber v. Barber, 21 How. 582, 16 L.Ed. 226, and Lynde v. Lynde, 181 U.S. 183, 187, 21 S.Ct. 555, 45 L.Ed. 810, 814) which were allegedly in conflict. In Barber, the Supreme Court had ordered the enforcement, in Wisconsin, under the full faith and credit clause, of past due alimony payments which had accrued under a New York decree; and in Lynde, it had refused to order the enforcement in New' York of past due alimony payments which had accrued under a New Jersey decree. (In both cases, the “alimony” included child support money.) In Sistare, the Supreme Court reviewed the facts in the two prior cases and pointed out that in Barber, the New York decree was subject to prospective modification only, while in the Lynde case, the enforcement of the New Jersey decree was “subject to the discretion of the court of chancery of New Jersey”. The Supreme Court found no conflict between the two prior cases and refused to overrule either one, and stated the true rule to be:
“ * * * First, that, 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 * * *. Second, that this general rule, however, does not obtain where, by the law of the state 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 decree, to such an extent that no absolute or vested right attaches to receive the in-stalments ordered by the decree to be paid * * * »
The Court then re-examined the New York law as it existed when the New York decree in the Sistare case was rendered, concluded that the New York decree was subject to prospective modification only with respect to alimony payments, and in effect ordered' its enforcement in Connecticut, the state' from which the appeal in the Sistare case came. It may be noted in passing that New York courts have refused to follow the U. S. Supreme Court’s construction, of the New York statutes in the Sistare case. See annotation at 6 A.L.R.2d 1289, and the interesting editorial comment.
We have previously referred to the language from 50 C.J.S. Judgments § 868,-identifying, in part, a final judgment of a foreign jurisdiction as one “capable of being there enforced by final process” and one creating a “definite, absolute and unconditional indebtedness”. Note also that in the Sistare case, the U. S. Supreme Court considered the question of whether a “vested right” attaches.
These three related tests — the “final process” test, the “indebtedness” test, and the “vested right” test — are all very pertinent in the determination of the finality of a judgment. Measured by all of them, the Texas decree for future child support payments in this case is not final and binding within the meaning of the full faith and credit clause. It cannot be enforced in Texas by final process or any method except contempt proceedings, and not then where respondent shows an involuntary inability to pay; it creates no indebtedness; and no vested right to receive the payments attaches.
In connection with the vested right question, we have previously noted that Texas *952courts have held that the payment of child support arrearages cannot be enforced, after the divorced husband’s death, against his estate; Clay v. Siercovich, Tex.Civ.App., 388 S.W.2d 25. Such being the case, it can hardly be said that a Texas child support judgment for future payments creates a vested right.
Moving now to the second ground of my dissent, it is my view that conceding for purposes of argument only that the Texas decree in this case is entitled to full faith and credit, it is accorded force and effect so far beyond that which it would receive in Texas as to amount to a denial of due process of law.
As above noted,'in Texas this decree cannot be the basis of á money (lump sum) judgment; it cannot be enforced by the garnishment or execution; it does not create a debt or a vested right. If the Texas decree is accorded unlimited force and effect in Oklahoma, the trial court may render a judgment on re-trial of this case under which a debt and a vested right are created, and which can be enforced by garnishment or execution. Additionally, the judgment of the Oklahoma court on retrial may become a lien against the husband’s real estate. This could not happen in Texas-; Article 4638, Texas Civil Statutes, provides in part that decrees providing for divorce and child support shall not “ * * * compel either party to divest himself .or herself of the title to real estate”.
In suits on foreign judgments, it is well settled that, with certain exceptions not applicable here, no defense which goes to the merits of the original controversy may be set up, 50 C.J.S. Judgments § 847 a, and that a valid foreign judgment on the merits is conclusive in every other state, and the merits may not be reinvestigated, 50 C.J.S. Judgments § 894.
Thus, the defendant husband in this case may become subject to garnishment or execution, and to a forced sale of his real estate, because of an Oklahoma judgment rendered after a trial in which the merits of the original controversy were not litigated, which judgment is based solely upon a Texas judgment under zvhich none of those - things was possible. The federal statute-which implements the full faith and credit clause, 28 U.S.C.A. § 1738, requires only that Texas decrees be accorded such faith and credit “ * * * as they have by law or • usage in the courts of such State, Territory or Possession from which they are taken”. In my view, if the full faith and credit clause is to be applied in this case, it would" be satisfied by an Oklahoma judgment limited in force and effect to the same extent that the Texas judgment on which it is-based is limited.
I am aware of the view obtaining in some-jurisdictions that a foreign judgment for-alimony may be enforced in the state of the - forum by equitable remedies or contempt - proceedings. See annotation at 18 A.L.R.2d" 862. Such relief was not requested in the-case now before us. I am also aware of the view that even though a particular foreign: judgment may not be enforceable under the-full faith and credit clause, the state of thy forum, under the principles of comity, may enforce it if it desires to do so. See Worthley v. Worthley, 44 Cal.2d 465, 283 P.2d 19. In my opinion, because of the due process-question previously discussed, Oklahoma-, courts are precluded from giving the Texas, judgment unlimited force and effect even-under the principles of comity.
In conclusion, it may be noted that under my dissenting views, the plaintiff in this-case would not be without a remedy. She-may proceed under the Uniform Reciprocal" Enforcement of Support Act, which has-been adopted in both Oklahoma and Texas; 12 O.S.1961, Sec. 1600.1 et seq.; Texas Civil Statutes, Art. 2328b-l et seq. Under the Uniform Act, the “duty of support” may be-enforced regardless of whether the court: order imposing it is interlocutory or final.. See 12 O.S.1961, Sec. 1600.3(6).
I respectfully dissent.
I am authorized to state that DAVISON" and IRWIN, JJ., concur in the views herein: expressed.