GRACE GILLESPIE SMITH, APPELLANT,
v.
PETER SMITH, APPELLEE

Fla. 4th DCA | 1989-05-31
No. 88-2526
WALDEN and POLEN, JJ., concur.
543 So. 2d 1305 Florida District Court of Appeal, Fourth District (1989) Positive Treatment
Cited by 2 cases

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Synopsis

Grace Smith appealed the trial court's denial of her petition to domesticate a Canadian divorce decree requiring spousal support payments. The Fourth District held that while past-due support arrearages need not be enforced due to the Canadian court's power to retroactively modify support, the trial court erred by failing to extend comity to enforce prospective support obligations and by relieving the former husband of all future support duties.


Holding

The court held that while past-due support payments need not be enforced due to the rendering court's power to retroactively modify support, Florida courts must extend comity to domesticate the foreign decree and enforce it prospectively for future support obligations. The trial court erred in relieving the former husband of any further support duty.


Headnotes

[1] A foreign divorce decree that is subject to retroactive modification by the rendering court is not entitled to full faith and credit, but may be domesticated and enforced…

[2] Under the rule of comity, a Florida court may domesticate a foreign divorce decree to prospectively enforce support obligations, even if the rendering court retains juris…

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Key Quotes

“[I]f the rendering court retains jurisdiction to modify alimony retroactively then the judgment is not final and is not entitled to full faith and credit. The remedy in such a case is to establish the foreign judgment as a Florida judgment by virtue of comity and to seek prospective enforcement only.”

Establishes the key principle that foreign support decrees may be enforced prospectively under comity even when the rendering court can modify them retroactively.

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Facts & Procedural History

In 1974, a Canadian court entered a consent divorce judgment requiring appellee to pay $112.50 per week as alimentary allowance. Under Canadian law, t…

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Opinion of the Court
DELL, Judge.

DELL, Judge.

Grace Gillespie Smith appeals from a final judgment denying her petition to domesticate a foreign Canadian divorce decree.

In 1974, a Canadian court entered a consent final judgment of divorce which required appellee to pay $112.50 per week as “alimentary allowance.” Under Canadian law, an alimentary allowance may be retroactively modified. In 1986, appellant filed a petition in the Circuit Court for Palm Beach County in which she sought domestication of the Canadian divorce decree and a judgment of arrearages against appellee in the amount of $20,025. After she filed the Florida action, she obtained an ex parte judgment in the Canadian court which awarded her $22,500 for alleged support arrearages. She amended her petition to seek domestication of that Canadian money judgment.

The trial court refused to domesticate the Canadian divorce decree based on its finding that under Canadian law, the support obligations could be modified retroactively. The trial court refused to domesticate the judgment for $22,500 because appellant obtained the judgment without notice to appellee. Notwithstanding these findings, the trial court granted appellee’s petition for modification of the Canadian divorce decree and relieved him of any further obligation to support the former wife or their son. We reverse.

The trial court misapplied Lechner v. Lechner, 154 Fla. 114, 16 So. 2d 816 (Fla.1944) when it refused to domesticate the Canadian divorce decree. The court in Lechner said:

Where a foreign decree is subject to modification by the court in which it was entered, the Federal Constitution nor the principle of comity between States requires enforcement thereof.

Id. 16 So. 2d at 819.

However, the supreme court in Sackler v. Sacfcler, 47 So. 2d 292 (Fla.1950), recognized that under the New York Civil Practice Act the New York court had the power to modify a divorce decree as to unpaid as well as future sums due for support for the wife and children but held that the Florida court should have extended comity to the New York decree:

We hold, therefore, that under the rule of comity, as well as the principles of public policy involved in the obligation of a husband to support his wife and children, the New York decree, as to future installments, may be established as a local decree and enforced by those equitable remedies customary in the enforcement of our local decrees for alimony and support money, (emphasis added).

Id. at 294.

This court in Serko v. Serko, 385 So. 2d 1117 (Fla. 4th DCA 1980) concluded:

[I]f the rendering court retains jurisdiction to modify alimony retroactively then the judgment is not final and is not enti- tied to full faith and credit. The remedy in such a case is to establish the foreign judgment as a Florida judgment by virtue of comity and to seek prospective enforcement only.

Id. at 1119.

Under the facts of this case, we hold that the trial court correctly refused to domesticate and enforce the Canadian divorce decree as to the past-due support payments, but erred when it failed to extend the rule of comity to domesticate the decree and to prospectively enforce the terms of the judgment. We also reverse that part of the final judgment which relieved appellee of any further obligation to support the former wife or their son.

Finally, appellant conceded that the trial court had the right to deny domestication of her subsequently obtained money judgment, because of lack of notice to the husband. Therefore we affirm that part of the trial court’s order which denied enforcement of the $22,500 judgment.

Accordingly, we reverse and remand this cause for further proceedings not inconsistent herewith.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

WALDEN and POLEN, JJ., concur.


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Citator

Cited By

  • Raskin v. Raskin, 625 So. 2d 1314 (Fla. 4th DCA 1993)
    …case, we find appellee’s arguments completely untenable. The trial court had jurisdiction because the former wife sought alimony arrear-ages only for unpaid arrearages accruing after the trial court domesticated the final judgment. Smith v. Smith, 543 So. 2d 1305 (Fla. 4th DCA 1989), Serko v. Serko, 385 So. 2d 1117 (Fla. 4th DCA 1980). Cf. Kozlik v. Kozlik, 416 So. 2d 481 (Fla. 4th DCA 1982). That is, the amount of alimony arrearages was based on the Florida domesticated judgment as retroactively modified by…

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