McElreath v. McElreath

MOTION FOR REHEARING

MR. JUSTICE NORVELL

delivered the opinion of the Court.

*224Respondent has filed an able motion for rehearing and a supplement thereto, wherein he strongly reurges two propositions, namely, that the decree here involved is actually an in rem decree, and alternatively, that if the decree be considered one in personam, nevertheless the equitable rights supporting the same cannot be enforced in Texas because of local policy considerations.

In our original opinion we said that in the event a portion of the Oklahoma decree should be considered unenforceable in Texas, this circumstance would not affect the vitality of the direct and categorical equitable order that respondent execute a conveyance of lands to petitioner. This order and the equities supporting it constitute the basis of petitioner’s claim for relief in Texas. In numerous opinions an in rem judgment rendered by a court of one state purporting to directly affect the title to land in another state is spoken of as being void for want of jurisdiction over the subject matter. In a sense, it could be argued with reason that this Court cannot authoritatively say that an Oklahoma decree which has been affirmed by the Supreme Court of that state is void. We may say, hpwever, that a portion of the decree is inoperative in this state when it purports to act in rem so as to directly affect the title to Texas lands. In determining whether or not a decree of a sister state, or the equities upon which it is based should be enforced in this state, we may also consider matters which go to the jurisdiction of the court of the sister state over the persons involved in the particular suit as well as the res. In this case, the order of the Oklahoma court entered in accordance with the law which controls the marital rights of the parties was an order operating in personam and one which the Oklahoma court had jurisdiction to render. That court also had jurisdiction of the'parties litigant. There is no contention made that this personal jurisdiction was spurious, assimilated or pretended. This is not a case where it is asserted that one of the marital partners wrongfully invoked the jurisdiction of the Oklahoma court by falsely pretending to be a resident of Oklahoma. Oklahoma was the state where those litigants lived; it was their matrimonial domicile; they were Oklahomans and, as pointed out in the original opinion, this jurisdictional status could not be changed by one of them crossing the Red River into Texas after their respective rights had been settled and adjudicated by the Oklahoma courts.

We pass next to the second contention which presents the paramount issue in this suit. Do public policy considerations *225prevent a Texas court from ordering respondent to do what the Oklahoiha court has ordered him to do, namely, convey land in Texas to the petitioner?

We reiterate that the enforceability of equitable decrees of sister states relating to Texas lands is hardly an open question in this state. In Milner v. Schaefer, Tex. Civ. App., 211 S.W. 2d 600, it was said:

“ [W] e do not understand that the trial court held that the Colorado court had jurisdiction or authority to adjudicate land titles in Texas. In fact, the Colorado court, by attempting to enforce its decree of January 21, 1944, proceeded strictly in personam in recognition of its lack of jurisdiction or authority to directly adjudicate Texas land titles.
“However, the Colorado decree did have the effect of judicially determining that Milner had made a valid contract with Schaefer and Lewis under the terms of which Schaefer and Lewis were entitled to receive the Texas property belonging to the partnership. Milner had invoked the jurisdiction of the Colorado court. It had jurisdiction of all the parties and its judgment is binding and operative under the rules of res judicata and estoppel by judgment.”

In support of this holding the court cited Hall v. Jones, Tex. Civ. App., 54 S.W. 2d 835;1 Massie v. Watts, 6 Cranch 148, 3 L. ed. 181 and Bailey v. Tully, 242 Wis. 226, 7 N.W. 2d 837, 145 A.L.R. 578 and the annotations following the A.L.R. reports. The Supreme Court refused the application for writ of error in Milner v. Schaefer.

It is, however, asserted that the rule of Milner v. Schaefer and the authorities cited therein cannot be applied to this case because the Oklahoma decree was one entered in a divorce case and a decree directing an Oklahoma husband to convey Texas land to an Oklahoma wife would violate the public policy of this state.

This contention, if adopted, would put Texas with the minority among the states of the American union. Generally no distinction is made between the equitable decree issuing out of a *226divorce suit and one based upon a contractual obligation. In the discussion of the subject of “Divorce” it is stated in Corpus Juris Secundum that:

“It is well established, nevertheless, that a court of chancery, in a proper case, has power to compel a conveyance of lands situated in another country or state, where the persons of the parties interested are within the jurisdiction of the court. Such a decree in nowise affects the title to the land; it is the conveyance, not the decree, that transfers the title. The decree acts only on the person, and obedience is compelled by proceedings in the nature of contempt, attachment, or sequestration. The court has no power to validate a conveyance of the foreign lands, made by its master or commissioner, in default of the performance of the decree by the party.
“The decree is entitled to full faith and credit in the foreign state to the extent that it determines the rights and equities of the parties with respect to land in such state. The foreign decree directing a conveyance is, when not complied with, a sufficient basis for an action in a court of the state where the land is situated, and to which the party not complying with the decree has removed, to compel such conveyance; and in such action the court may render a decree in personam against such party requiring him to make the conveyance.” 27B C.J.S. 886, Divorce § 383.

The adoption of the minority view must be justified if at all on policy considerations, 27B C.J.S. 887, and this is the basis which respondent strongly urges in his motion. A discussion of the applicability and effect of Article 4638, Vernon’s Ann. Tex. Stats, is contained in the original opinion and need not be repeated here. However, in the motion for rehearing it is urged for the first time that certain provisions of the Uniform Reciprocal Enforcement of Support Act, Articles 2328b-l, 2328b-2 and 2328b-3, Vernon’s Ann. Tex. Stats, have a bearing upon the problem before us in that such Act in subsection (6) of Section 2 of Article 2328b-l contains an exception as to alimony for a former wife. This subsection among the definitions contained in the Act defines “Duty of Support” as follows:

“(6) ‘Duty of support’ includes any duty of support imposed or imposable by law, or by any court order, decree or judgment, whether interlocutory or final, whether inci*227dental to a proceeding for divorce, judicial (legal) separation, separate maintenance or otherwise; but shall not include alimony for a former wife.”

Likewise, Section 7 of Article 2328b'-3 contains a similar proviso or exception:

“Sec. 7. Duties of support enforceable under this law are those imposed or imposable under the laws of any state where the alleged obligor was present during the period for which support is sought or where the obligee was present when the failure to support commenced, at the election of the obligee, but shall not include alimony for a former wife.”

Section 3 of the Act however provides that:

“The remedies herein provided are in addition to and not in substitution for any other retoedies.” Article 2328b-l, §3.

The petitioner’s claim for relief arose wholly independent of the Uniform Reciprocal Enforcement of Support Act. The enforcement of her demands' by ordering the respondent to execute a conveyance to her is not dependent upon the provisions of the Act. Ex parte Helms, 152 Tex. 480, 259 S.W. 2d 184. Nor is such action prohibited thereby. It does not follow that because the State of Texas will not enforce the payment of alimony to a wife under the Act, that the enforcement of the Oklahoma equitable decree here involved would be against public policy.

“Ordinarily, the public policy of a state is to be deduced from its constitution, laws, and judicial decisions. However, in considering whether the exercise of the doctrine of comity would be contrary to the public policy of the jurisdiction, the distinction between regulative legislation and the adoption of a principle.of public law must not be lost sight of, the mere fact that a particular act or contract is prohibited by statute in the particular jurisdiction not necessarily requiring the withholding of a remedy on a right arising from an act or contract performed or made in another jurisdiction.
“It is usually held that to justify a court in refusing to give effect to or enforce foreign law or rights because it would be against public policy, it must appear that it would *228be against good morals or natural justice, or for some other reason would be prejudicial to the state or its citizens, the, mere fact that the law of two states or nations differs not necessarily implying that the law of one violates the public policy of the other.” 15 C.J.S. 854, Conflict of Laws, § 4(b).

The support orders contemplated by the Act are seemingly those of a recurring nature which would operate upon residents of Texas, such as the payment of certain sums of money at periodic intervals. See, enforcement provisions, both criminal and civil, Arts. 2328b-2 and 2328b-3. In this case, the obligation of the husband as it comes to the Texas courts is in the form of an enforceable duty which binds a former husband to convey certain property to a former wife. At this late date in the history of Anglo-American jurisprudence it is difficult to support a distinction in principle between the judgment at law of a sister state based upon a husband’s duty to support his wife, Rumpf v. Rumpf, 150 Tex. 475, 242 S.W. 2d 416, and the equitable decree similarly based. Cf. Charlie D. Dye, Enforcement of Foreign Alimony Decrees in Texas: A Survey and Analysis, 38 Texas Law Review 82.

It seems that fundamentally the argument on the policy issue stems from the circumstance that the laws governing marital rights in Texas are different from those of Oklahoma. On this basis, it is asserted that no rights under the Oklahoma decree should be afforded protection in this state.

We are concerned here with the laws and procedures of another state of the American union and not with a foreign state in the technical sense. In general, the common and statutory law, as well as the legal procedures, of Oklahoma and Texas are similar. There are differences in detail and some of them are of major proportions, but they remain details rather than radical differences in methods or objectives. The marital law of both states is statutory for the most part. While it seems that the Oklahoma law contains certain evidences of the Spanish influence, it is perhaps not inaccurate to say that primarily the Texas statutes are based upon the Spanish law — while the Oklahoma system is based primarily upon the English common law. Alimony is provided for by the Oklahoma law. In Texas, our courts are not authorized to grant permanent alimony payable at periodic times in the future.2 This circumstance *229should, not, however, prevent the recognition of the equities supporting the Oklahoma decree.

In Herrick v. Minneapolis & St. Louis Ry. Co., 31 Minn. 11, 16 N.W. 413, the Supreme Court of Minnesota said:

“[B]ut it by no means follows that because the statute of one state differs from the law of another state, that therefore it would be held contrary to the policy of the laws of the latter state. Every day our courts are enforcing rights under foreign contracts where the lex loci contractus and the lex fori are altogether different, and yet we construe these contracts and enforce rights under them according to their force and effect under the laws of the state where made. To justify a court in refusing to enforce a right of action which accrued under the law of another state, because against the policy of our laws, it must appear that it is against good morals or natural justice, or that for some other such reason the enforcement of it would be prejudicial to the general interests of our own citizens.”

The above was quoted with approval by Chief Justice White in Northern Pacific Railway Co. v. Babcock, 154 U. S. 190, 14 S. Ct. 978, 38 L. ed. 958 and by the Supreme Court of Tennessee in Whitlow v. Nashville, Chattanooga & St. Louis R. Co., 114 Tenn. 344, 357, 84 S.W. 618, 68 L.R.A. 503.

Similarly, in Loucks v. Standard Oil Co., 224 N. Y. 99, 120 N.E. 198, Judge Cardozo speaking for the New York Court of Appeals said:

“Our own scheme of legislation may be different. We may even have no legislation on the subject. That is not enough to show that public policy forbids us to enforce the foreign right. A right of action is property. If a foreign *230statute gives the right, the mere fact that we do not give a like right is no reason for refusing to help the plaintiff in getting what belongs to him. We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home. Similarity of legislation has indeed this importance; its presence shows beyond question that the foreign statute does not offend the local policy. But its absence does not prove the contrary. It is not to be exalted into an indispensable condition.”

As pointed out in the original opinion, if there be any semblance of fairness achieved in settling the property rights of divorcing persons holding property in two or more states, it must be done by a court operating in one jurisdiction. The problem cannot be adequately solved by the piecemeal attempts of several courts in several states.

The question of the enforceability of equitable decrees arising out of divorce cases relating to lands in states other than the matrimonial domicile is one of growing importance. It demands some solution which is hardly met by the adoption of a strictly “hands off” or “do nothing” policy on the part of the courts of the states wherein the real property may be located. We are dealing with equity jurisprudence, and in this field, we - should bear in mind the injunction of Mr. Justice Alexander, later Chief Justice of this Court, that:

“Courts should not allow themselves to become static nor so hedged about with barriers of their own making, as to render themselves incapable of performing the functions for which they were created and are maintained. It was this confession of impotency on the part of the common law courts that brought about the creation of courts of equity to meet practical situations.” Powers v. First National Bank of Corsicana, Texas, Tex. Civ. App., 137 S.W. 2d 839, 1.c. 843, affirmed 138 Tex. 604, 161 S.W. 2d 273.

We do not regard the objection to the enforcement of the Oklahoma decree as . being a valid one. Texas courts have assérted their authority to issue equitable in personam decrees re- . lating to property outside the state. Fain v. Fain, Tex. Civ. App., 6 S.W. 2d 403, wr. dis., a divorce case. It seems that there should be no valid objection to the recognition of a like right in the Oklahoma court which had undisputed jurisdiction of the parties. We think the proper approach to the problem is that *231indicated by the California District Court of Appeals in staying proceedings in the California Superior Court until divorce proceeding affecting the litigating parties could be concluded in Texas. That Court said:

“Under the law of Texas the court has the power in an action for divorce to decree a division of the personal property, separate and community, of the parties in such manner as in its discretion it deems just and right. The court has power to determine and decree that specific property is owned by one or the other of the spouses. Jones v. Jones, Tex. Civ. App., 211 S.W. 2d 269; Tims v. Tims, Tex. Civ. App., 201 S.W. 2d 865, 868; McGarraugh v. McGarraugh, Tex. Civ. App., 177 S.W. 2d 296; Dale v. Dale, Tex; Civ. App., 141 S.W. 2d 718; Grissom v. Grissom, Tex. Civ. App., 137 S.W. 2d 227; Scott v. Ft. Worth Nat. Bank, Tex. Civ. App., 125 S.W. 2d 356, 362; Helm v. Helm, Tex. Civ. App., 291 S.W. 646, 649; Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21; Rudasill v. Rudasill, Tex. Civ. App., 219 S.W. 843; 15 Tex. Jur. 580, sec. 105 et seq.; 4 Tex. Jur. Ten-Yr. Supp. 336, sec. 105 et seq. Under the law of Texas the. court also has power by decree to compel a party of whom it has jurisdiction to execute a conveyance of real property situate in another state, Texas & P. Ry. Co. v. Gay, 86 Tex. 571, 26 S.W. 599, 605, 25 L.R.A. 52; Fain v. Fain, Tex. Civ. App., 6 S.W. 2d 403, 407; Baughan v. Goodwin, Tex. Civ. App., 162 S.W. 2d 732, 736, and such a decree is entitled in California to the force and effect of record evidence of the equities therein determined unless it can be impeached for fraud. Redwood Investment Co. of Stithton, Kentucky v. Exley, 64 Cal. App. 455, 459, 221 P. 973; Bailey v. Tully, 242 Wis. 226, 7 N.W. 2d 837, 839, 145 A.L.R. 578; Rest., Conflict of Laws, sec. 97, comment a, secs. 430, 449; see Tully v. Bailey, 46 Cal. App. 2d 195, 115 P. 2d. 542.”
“* * * California courts should interpose no action to interfere with rights of the wife to which she may be entitled as a resident of Texas in an action for divorce. A conflict of authority should not occur if it can be avoided. Courts should compose rather than irritate. ‘Our states do not stand in the same relation to each other that foreign countries do. They are members of the same family, and section 1, art. 4, of the Constitution of the United States requires each state to give full faith and credit to the judicial proceedings of every other state. Comity between states is daily growing *232and should be encouraged.’ Hall v. Industrial Commission, 165 Wis. 364, 162 N.W. 312, 314, L.R.A. 1917D, 829.
“The parties are residents of Texas. The Texas action will determine all the issues involved in the California action. The courts of Texas are as competent to administer justice as those of California. A trial in Texas under the circumstances is more likely to accomplish full justice than a trial in Colifornia of the comparatively narrow issues involved in the action here.” Simmons v. Superior Court, 96 Cal. App. 2d 119, 214 P. 2d 844, 1.c. 851-2, 19 A.L.R. 2d 288. Respondent’s motion for rehearing is overruled.

. Wherein, among others, Mallette v. Scheerer, 164 Wis. 415, 160 N.W. 182; Matson v. Matson, 186 Iowa 607, 173 N.W. 127 are cited with approval.

. McBride v. McBride, Tex. Civ. App., 256 S.W. 2d 250, no wr. hist. The opinion deals with a decree providing for permanent alimony in the nature of future *229periodic payments. The holding was that a Texas court has no jurisdiction and is without authority to grant permanent alimony. It was also said an “award of permanent alimony is against the public policy of this State.” However, the opinion further stated that: “We recognize the well established rule that property of either spouse, in a divorce proceeding, may be dedicated to the support of either spouse or the children of the marriage. Clark v. Clark, Tex. Civ. App., 35 S.W. 2d 189 (Waco, wr. dism.) and authorities there cited.” While not deemed controlling on the point under discussion, it seems that all provisions for "wife support” are not invalid in Texas. Property may be charged with a trust for that purpose. In Oklahoma “wife support” may take the form of alimony in gross and may be awarded in the form of real property. This illustrates a difference in detail.