#### FLORENCE JEWEL LOCKMAN v. WILLIAM S. LOCKMAN, JR.

(Filed 8 October, 1941.)

1. Pleadings § 5—

The prayer for relief is not a necessary part of the complaint, and may be regarded as immaterial.

2. Judgments § 40: Divorce § 14—

This action was instituted on a decree for divorce and alimony rendered by a court of competent jurisdiction in the State of Florida in a suit in which defendant was personally served with summons and filed answer. Defendant demurred on the ground that the complaint prayed that the *96Florida judgment be adopted as tbe judgment of our court. Held: The demurrer was properly overruled, since tbe relief to wbicb plaintiff is entitled is determined by tbe facts alleged in tbe complaint and tbe proofs thereunder, and not tbe prayer for relief.

3. Same: Constitutional Law § 33—

A decree for alimony rendered by a court of another state is, to the extent of accrued installments, a final judgment for debt within tbe protection of tbe Full Faith and Credit Clause of tbe Federal Constitution, Art. IV, sec. 1, provided the court rendering the decree is without power to modify or alter it in regard to installments accrued, notwithstanding that as to future installments the decree is interlocutory and subject to modification by the court rendering it.

4. Same—

The courts of the State of Florida are without power to modify or alter a decree for alimony in regard to installments accrued, certainly as to decrees entered prior to the enactment of ch. 16780, Acts of the Legislature of Florida of 1935, so that a decree for alimony rendered in 1934 by a court of that State is a final judgment within the Full Faith and Credit Clause as to installments accrued at the time of the institution of an action on the decree here, no proceedings for the modification of the decree having been instituted in the Florida court.

5. Same: Abatement and Revival § 6—

In an action instituted here on a decree for alimony rendered by a court of another state, a demurrer on the ground of pendency of another action between the same parties for the same cause of action is untenable, since if the demurrer is based upon the contention that the decree sued on is pending in the court rendering it, such decree is final as to installments accrued, or if it is based upon the contention that there is another proceeding pending in the courts of such other state to enforce the payment of accrued installments, the pendeucy of such proceeding must be raised by answer or plea in abatement and not by demurrer.

6. Judgments § 40: Divorce § 14: Constitutional Law § 33—

Plaintiff brought suit here on a decree for alimony rendered by a court of competent jurisdiction in the State of Florida, in an action wherein divorce a vinculo matrimonii was granted. Held: The action can be maintained here as to installments of alimony due even though alimony may not be awarded by our courts after a decree for absolute divorce, since the awarding of such alimony is not contrary to public policy and our courts cannot deny full faith and credit to the foreign judgment, rendered by a court having jurisdiction of the parties and subject matter, which establishes an obligation on the part of defendant to pay a sum certain.

Appeal by defendant from Gwyn, J., at January Term, 1941, of HendeesoN.

Affirmed.

Plaintiffs action was based on a judgment rendered in tbe State of Florida awarding her alimony. In her complaint sbe alleges that sbe is a resident of Florida and tbe defendant a resident of Henderson County, North Carolina; tbat in 1934 in a court of competent jurisdiction, in Palm Beacb County, in tbe State of Florida, tbe plaintiff 'and *97defendant were parties to an action wherein final judgment or decree was rendered in favor of plaintiff and against the defendant, a copy of the judgment being attached; that the court was a court of record and had full jurisdiction of the matters referred to in the judgment; that the judgment was based on personal service on the defendant, who filed answer in the cause; that the judgment is still in full force and effect in the State of Florida; “that there is now due and owing the plaintiff by the defendant under the requirements of said judgment the sum of $810 in alimony as of 1 October, 1940.”

In the prayer for relief it was asked that “said judgment or decree be made the judgment or decree of the Superior Court of Henderson County, North Carolina, as fully and to the same extent as if said judgment was originally rendered by the courts of North Carolina.”

It appears from the judgment that a divorce a vinculo was decreed, and that in accordance with the laws of the State of Florida alimony in the sum of $30.00 per week was adjudged to be paid by defendant to the plaintiff as long as she remained unmarried, together with $150.00 attorneys’ fees. The custody of the children was awarded plaintiff. The judgment also contained this item: “Provisions as to alimony and as to support and custody of the children shall be subject to further order of the court.”

Defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action, in that (1) it appeared to be an action for the adoption in this State of a judgment rendered in the State of Florida; (2) and the Superior Court of Henderson County is without authority to make its own a judgment in the State of Florida; (3) in that it appears that the judgment is not a final judgment, and that the cause is still pending in Florida, and is subject to the further order of that court; (4) that this court is without jurisdiction to deprive the Florida court of the right to modify its decree as to alimony; (5) that the judgment is interlocutory and cannot be made the basis of an independent action in this court; (6) that it appears from the complaint that there is pending in the Circuit Court for Palm Beach County, Florida, another action between the same parties for the same cause of action; (7) that it appears by the terms of the judgment the plaintiff and defendant were absolutely divorced, and the granting of alimony in such case is contrary to the laws of North Carolina.

The demurrer was overruled, and defendant appealed.

R. L. Whitmire for plaintiff, appellee.

O. D. Weeks for defendant, appellant.

DeviN, J.

It may be noted at the outset that it is admitted for the purposes of the demurrer that the Florida court, which rendered the *98judgment sued on, bad jurisdiction of tbe parties as well as of tbe cause of action; tbat tbe defendant was personally served witb process and answered; tbat tbe judgment was rendered in 1934 adjudging tbe amount of alimony payable by tbe defendant to tbe plaintiff in installments; tbat tbe judgment is still in full force and effect in Florida, and tbat tbe amount now sued for in tbis action represents tbe installments of alimony past due at tbe commencement of tbis action.

Tbe demurrer challenges tbe sufficiency of tbe complaint upon several grounds. Tbe first objection is tbat tbe apparent purpose of tbe action is to bave a judgment or decree rendered in tbe State of Florida adopted as the judgment of tbe Superior Court of Henderson County to the same extent as if originally rendered in tbat court. Objection on tbis ground would be good except for tbe fact tbat it is pointed only to tbe plaintiff’s prayer for relief, and, under our decisions, tbe prayer for relief is not a necessary part of tbe complaint, and may be regarded as immaterial. Tbe measure of relief is to be determined by tbe facts alleged in tbe complaint, and tbe proofs thereunder. Knight v. Houghtalling, 85 N. C., 17; Lumber Co. v. Edwards, 217 N. C., 251 (255), 7 S. E. (2d), 497.

Tbe principal objection is tbat tbe Florida judgment, upon which tbis action is based, is not a final judgment, for tbat it is recited in tbe judgment tbat tbe provisions as to alimony shall be subject to further order of tbe court. It is urged tbat the decree is interlocutory and should not be made tbe basis of an independent action in tbe courts of North Carolina. Tbe point is made tbat for these reasons tbe judgment sued on does not come within tbe protection of tbe Full Faitb and Credit Clause of tbe Constitution of tbe United States.

Article IY, section 1, of tbe Federal Constitution not only commands tbat “full faith and credit shall be given in each state to tbe public acts, records and judicial proceedings of every other state,” but it adds, “Congress may by general laws prescribe tbe manner in which such acts, records and proceedings shall be proved, and tbe effect thereof.” Congress exercised tbis power by providing tbat judgments “shall bave such faith and credit given to them in every court within tbe United States as they bave by law or usage in tbe courts of tbe state from which they are taken.”

In Milwaukee County v. White, 296 U. S., 268, it was said: “A cause of action on a judgment is different from tbat upon which tbe judgment was entered. In a suit upon a money judgment for a civil cause of action tbe validity of tbe claim upon which it was founded is not open to inquiry, whatever its genesis. Regardless of tbe nature of tbe right which gave rise to it, tbe judgment is an obligation to pay money in tbe nature of a debt upon a specialty. Recovery upon it can be resisted only on tbe grounds tbat tbe court which rendered it was without juris*99diction; or that it has ceased to be obligatory because of payment or other discharge . . .; or that it is a cause of action for which the state of the forum has not provided a court, unless it is compelled to do so by the privileges and immunities clause . . .; or possibly because procured by fraud.”

Does the Full Faith and Credit Clause of the Constitution apply to actions to recover past-due installments of alimony decreed by a court in a state other than that of the forum? "Whatever uncertainty may have existed as to the law on this subject seems to have been definitely settled by the decision of the Supreme Court of the United States in Sistare v. Sistare, 218 U. S., 1. The résumé of that decision as set out in the first headnote is this: A decree for the future payment of alimony is, as to installments past due and unpaid, within the protection of the Full Faith and Credit Clause of the Constitution, unless by the law of the state in which the decree was rendered its enforcement is so completely within the discretion of the courts of that state that they may annul or modify the decree as to overdue and unsatisfied installments. The facts in that case were strikingly like those in the case at bar. In that case by the judgment of a court in the State of New York the wife was granted separation from bed and board from her husband and he was ordered to pay her $22.50 per week for the support of herself and minor child. Five years later, at which time none of the installments of alimony had been paid, the wife commenced action in the Superior Court of New London County, Connecticut, to recover the amount then in arrears of the decreed alimony. The defendant contended that the judgment rendered in the State of New York requiring future payments did not constitute a final judgment for a fixed sum of money which would be enforceable in Connecticut, and that the judgment, being subject to modification by the court which granted it, was not a judgment enforceable in another state, and that the requirement of sums of money to be paid in installments did not constitute it a debt or obligation from the defendant to the plaintiff. In the trial court judgment was rendered in favor of the wife for the arrears of alimony due at the commencement of the action. The Supreme Court of Connecticut reversed the judgment below, and the case was taken to the Supreme Court of the United States where the decision of the Connecticut' Supreme Court was reversed. The opinion of Chief Justice White states the applicable principle of law to be as follows: “First, that, generally speaking, where a decree is rendered for alimony and is made payable in future installments, the right to such installments 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 installments, since, as declared in the Barber case *100 (Barber v. Barber, 20 How., 582), ‘alimony decreed to a wife in a divorce of separation from bed and board is as mueb a debt of record, until the decree bas been recalled, as any other judgment for money is.’ 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 installments ordered by the decree to be paid, even although no application to annul or modify the decree in respect to alimony had been made prior to the installments becoming due.” The Court distinguished the case of Lynde v. Lynde, 181 U. S., 183, where an apparently different view had been expressed, and upon which the Connecticut decision had been based, and declared that the correct principle had been laid down in Barber v. Barber, supra.

To the same effect is the decision in the recent case of Junghaus v. Junghaus, 112 F. (2), 212, decided April, 1940. In that case the wife had obtained a decree for a limited divorce, with alimony, in the District of Columbia Court. Later she sued the husband in Maryland to collect arrears of alimony. The Court said: “Installments which, when the Maryland action was brought, were already due and not subject to modification, stand on a different basis. As to them, the Maryland court was bound to give full faith and credit to the District Court’s decree for alimony.” And in Armstrong v. Armstrong, 177 Ohio St., 558, 160 N. E., 3, 57 A. L. R., 1108, it was held that a judgment for alimony payable in installments constituted a final judgment entitling it to full faith and credit in another state, unless under the law of the jurisdiction where rendered power of modification extended to accrued as well as future installments. In Shibley v. Shibley, 181 Washington, 166, 97 A. L. R., 1191, it was held that a decree for alimony, rendered by a court of another state, is final, so as to permit enforcement in the court of the forum, as to installments due and unpaid, where by the law of the foreign state it is not subject to modification as to such sums without the consent of the parties.

In 19 C. J., 365, commenting on the rule laid down in Sistare v. Sistare, 218 U. S., 1, it is said: “The question has been settled by the Supreme Court of the United States.”

In McWilliams v. McWilliams, 216 Ala., 16, the rule was clearly stated as follows: “The decree for alimony, so far at least as concerns past-due installments, is none the less a final decree because it may be modified by the court which rendered it. Authorities are abundant which hold that such a decree, for a fixed sum, is a judgment of record, and will be received by other courts as such. And such a decree rendered in any state of the United States will be carried into judgment in *101any other state,” citing Wells v. Wells, 209 Mass., 282. To tbe same effect is tbe Holding in Rosenberg v. Rosenberg, 152 Md., 49; Fanchier v. Gammill, 148 Miss., 723; Levine v. Levine, 121 Or., 44; Taylor v. Stowe, 218 Mass., 248; Campbell v. Campbell, 28 Okl., 838; Keck v. Keck, 219 Cal., 316; Holton v. Holton, 153 Minn., 346, 41 A. L. R., 1415.

In Dyal v. Dyal, 16 S. E. (2d), 53, decided 16 July, 1941, tbe Court of Appeals of Georgia considered a suit to recover past-due installments of alimony decreed by a court in tbe State of Florida, and reaffirmed tbe principle tbat tbe Florida judgment was entitled to tbe same faitb and credit in Georgia tbat was accorded it in tbe state where rendered. There tbe defendant answered, pleading payment and discharge, and demurrer to tbe answer was overruled. It may be noted tbat in a previous decision in a ease between tbe same parties (Dyal v. Dyal, 187 Ga., 600), tbe wife’s independent application in a Georgia court for temporary alimony and counsel fees was denied. But in tbe last case suit on tbe Florida judgment for arrears of alimony already accrued under tbe decree of tbat state was permitted.

Tbe case of Israel v. Israel, 148 Fed., 148, cited by defendant, was decided (1906) prior to tbe ruling laid down in tbe Sistare case, supra, and therefore may no longer be regarded as authority for defendant’s position. Referring to these cases, as well as tbe Lynde case, supra, we quote what is said in 17 Am. Jur., 576-577, as follows: “Past-due installments, which tbe court is without power to modify, may be enforced. A few courts, erroneously interpreting a decision of tbe United States Supreme Court (Lynde v. Lynde), have held tbat a periodical allowance, so far as it awards alimony to become due and payable after its rendition, is not within tbe protection of tbe Full Faitb and Credit Clause of tbe Federal Constitution so as to require its enforcement as to such installments in another state (Israel v. Israel). In a subsequent decision, however, tbe United States Supreme Court cleared up tbe tendency to confusion by bolding tbat, unless it appears from tbe law of tbe jurisdiction wherein a decree was granted tbat tbe power of modification extends to accrued as well as to future installments of alimony, a periodical allowance constitutes a final judgment within tbe meaning of tbe Full Faitb and Credit Clause, so far as installments already accrued are’ concerned, provided no modification of tbe decree has been actually made prior to tbe maturity of such installments (Sistare v. Sistare).” Tbe defendant also cited Hewett v. Hewett, 44 R. I., 308. Tbe opinion in tbat case quoted witb approval tbe rule in tbe Sistare case, supra, but held tbat under tbe laws of Massachusetts (where tbe original judgment bad been rendered) tbe courts there bad power to modify a decree for alimony as to past-due installments, and for tbat reason tbe decree was not final.

*102The case of Janous v. Bank, 101 Neb., 393, is not in point. The only other case cited by defendant which tends to support his contention on this point was Grimmi v. Grimm, 42 Pa. Co., 685. This decision, however, is by a subordinate court and not by the court of last resort of that state.

In accord with the guiding principles enunciated in these authorities, it becomes necessary to determine whether under the Florida law the Circuit Court for Palm Beach County had discretionary power to modify or annul the decree as to past-due and unsatisfied installments of alimony, or whether these constituted vested rights of the plaintiff established by judgment.

The latest case on the subject decided by the Supreme Court of Florida is Andruss v. Andruss, reported in 198 So., 213, decided 25 October, 1940. It was said in that case: “Payment of alimony may be usually enforced upon summary application to the court wherein the decree was rendered. 17 Am. Jur., section 659. Although the decree herein was subject to modification, jurisdiction being specifically retained for that purpose, the right to installments of alimony already accrued is vested, and the court has no power to modify provisions as respects past-due installments. 17 Am. Jur., 494; 19 C. J., 309; Kennard v., Kennard, 131 Fla., 473.” ¥e also quote from Gaffney v. Gaffney, 129 Fla., 172: “We now adhere to and apply to this case the enunciation therein (referring to the case of Dickenson v. Sharpe, 94 Fla., 25') made as to the power of a trial court to adjudicate the amount of alimony in arrears, render judgment therefor, and Order issuance of execution.” See, also, Tivas v. Tivas, 196 So. (Fla.), 175.

By statute enacted by the Legislature of Florida in 1935 (ch. 16780, Acts 1935), the Circuit Court of Florida was authorized, where there had been a change in conditions, upon application and after giving both parties opportunity to be heard, to make an order decreasing or increasing or confirming the amount of alimony, and it was provided that thereafter the husband should be required to pay only the amount so determined, and that the decree for the purpose of all actions, within or without the state, should be deemed to be modified accordingly. However, this statute was held in Van Loon v. Van Loon, 132 Fla., 535, 182 So., 205, to operate prospectively. In that case the divorce decree was rendered in 1929. The Court said: “While the decree awarding alimony as in this case is not a contract obligation that is secured from legislative violation by the contract clause of the Federal and State Constitutions, yet, where past-due installment payments of alimony under a valid judicial decree remain unpaid, they do constitute vested property rights of which the party cannot be deprived except by due process of law. The statute operates prospectively to authorize modifi*103cations of alimony decrees as to future payments from tbe date of application, to tbe extent authorized by valid provisions in tbe statute, even tbougb tbe court bad not expressly reserved tbe authority to change or modify a decree when it was rendered. Tbe court rendered a decree for past-due installments of alimony. Tbe prayer for modification of alimony decree as to payments in default when tbe petition was filed was denied, and a special master was appointed to take testimony ón tbe issue as to whether relief should be allowed as to future payments. This was in accord with tbe law and tbe prior decisions of tbe Court. See Gaffney v. Gaffney, 129 Fla., 172; Mooty v. Mooty, 179 So., 155; and Kennard v. Kennard, 179 So., 660.” It will be noted that tbe divorce decree in tbe case at bar was rendered in 1934, prior to tbe passage of tbe act referred to. There was no allegation that any modification bad been applied for or allowed. On tbe contrary, it was alleged that tbe Florida judgment was final, that it was still in full force and effect, and that accrued installments amounting to $810 were due at tbe commencement of tbe action.

It seems clear that under tbe laws of Florida applicable to a decree for alimony rendered in 1934, as interpreted by tbe court of last resort of that state, tbe plaintiff’s right to installments of alimony fixed by tbe judgment and already accrued is deemed vested, and that tbe court which rendered tbe judgment has no power to modify its terms as respects past-due installments. Tbe principle enunciated in Sistare v. Sistare, supra, is therefore applicable, and tbe Florida judgment is entitled to tbe protection of tbe Full Faith and Credit Clause of tbe Constitution, and to have such faith and credit given it in tbe North Carolina courts as it has by law in tbe courts of tbe state from which it was taken.

Tbe rule in North Carolina is that a judgment awarding alimony is a judgment directing tbe payment of money by tbe defendant, and by such judgment tbe defendant becomes indebted to tbe plaintiff for such alimony as it falls due, and when tbe defendant is in arrears in tbe payment of alimony, tbe Court may judicially determine tbe amount due and enter decree accordingly. It has no less dignity than any other contractual obligation. Barber v. Barber, 217 N. C., 422, 8 S. E. (2d), 204. In Duss v. Duss, 92 Fla., 1081, tbe obligation of tbe divorced husband to pay alimony was stated in language of similar import. See, also, Craig v. Craig, 163 Ill., 176, 45 N. E., 153.

Tbe defendant asserts in bis demurrer that there is pending in tbe Circuit Court for Palm Beach County, Florida, another action between tbe same parties for tbe same cause of action. If it is intended to allege that there is pending between tbe parties another suit, as distinguished from that in which tbe judgment in question was rendered, this should be taken advantage of by answer or plea in abatement and not by de*104murrer, since it refers to a matter which, does not appear in the complaint. Allen v. Salley, 179 N. C., 147, 101 S. E., 545. If he is simply restating his position that the judgment is not final and in that sense is pending, we have disposed of that contention by what already has been said.

The defendant lastly demurs on the ground that the judgment in the Florida court dissolved the bonds of matrimony between plaintiff and defendant, and that it is contrary to the laws of this State to grant alimony thereafter.

"While there is no statute in this State permitting judgment for the payment of alimony where absolute divorce has been decreed, there is no statute forbidding suit on a judgment from another state where alimony was allowed in accord with the laws of that state, nor is there a statute or decision of this State declaring it contrary to the policy of the State. Nor can alimony, as such, be considered as contra tonos mores, or inimical to the public welfare, nor has the jurisdiction of the courts of the State been denied to suits on otherwise valid judgments of other states decreeing payment of alimony in such cases. In Duffy v. Duffy, 120 N. C., 346, 27 S. E., 28, it was said: “At common law, where a divorce a vinculo matrimonii was granted, no allowance for future support of the wife was given, and we have no statute in this State allowing it.”

In Arrington v. Arrington, 127 N. C., 190, 37 S. E., 212, the plaintiff sued in this State upon an Illinois judgment, which had decreed divorce a vinculo with alimony, for past-due installments of the alimony fixed by the Illinois judgment. It was held in effect that the Illinois judgment, duly authenticated, under the Federal Constitution, was entitled to full faith and credit in the courts of North Carolina, citing as authority Barber v. Barber, 21 How., 582, and judgment of nonsuit ill the Superior Court was set aside. Justices Clark and Douglas dissented on the ground that the judgment for alimony being subject to modification by the court at any time, was interlocutory and not a final judgment. However, the dissent was based upon the construction given to the case of Lynde v. Lynde, 181 U. S., 183. Upon a later appeal in Arrington v. Arrington, 131 N. C., 143, 42 S. E., 554, deciding that claims for alimony were debts dischargeable in bankruptcy, it was intimated that the majority of the Court as then constituted would have agreed with Justice Clark, basing that view also on Lynde v. Lynde, supra. It will be noted, however, that in Sistare v. Sistare, 218 U. S., 1, Chief Justice White analyzed the cases of Barber v. Barber, supra, and Lynde v. Lynde, supra, and said if there was a conflict between those cases, the Lynde case, supra, “must be restricted or qualified” so as to accord with the Barber case, supra.

*105Tbe North Carolina statutes prohibiting gambling in futures and denying jurisdiction of the courts to suits on judgments based upon such contracts have been upheld as constituting an exception to the application of the Full Faith and Credit Clause of the Constitution, on the ground that the State had not provided a court with jurisdiction to entertain suit on such a judgment though properly rendered in another state. Mottu v. Davis, 151 N. C., 237, 65 S. E., 969; Cody v. Hovey, 219 N. C., 369; Provision Co. v. Davis, 191 U. S., 373; Milwaukee Co. v. White, 296 U. S., 268.

That principle, however, is not applicable here, nor do we know of any principle upon which we can deny full faith and credit to a judgment rendered in the State of Florida according to the laws of that state by a court of competent jurisdiction, both as to the subject matter and the parties, wherein an obligation on the part of the defendant to pay money to the plaintiff was definitely decreed.

After careful consideration of the principles of law involved, we reach the conclusion that the complaint may not be overthrown by the demurrer, and that the judgment of the Superior Court should be

Affirmed.