The opinion of the court was delivered by: TAMM
The present action was instituted by Kay King against Russell L. Fay, former husband of the plaintiff, and Eugenia B. Fay as Guardian of the person and property of the incompetent Russell L. Fay. Briefly, the plaintiff is suing for payment of money due by reason of a property settlement which the former husband and wife (the present plaintiff) entered into on February 1, 1950 and which was incorporated into the decree of divorce which dissolved the marriage between Kay King and Russell L. Fay. The plaintiff demands judgment against the defendants in the sum of $ 21,400 with interest at 5% per annum on $ 19,500 from October 27, 1957, and costs.
The defendants are non-residents of the District of Columbia, and because of this the plaintiff has proceeded in this action under Title 13, District of Columbia Code, Sec. 108, which provides substantially as to service and the manner thereof on a non-resident defendant who has personal property within the jurisdiction against which a claim of the plaintiff is asserted. She has also proceeded under Title 16, Sec. 301 of the District of Columbia Code -- attachment before judgment -- and pursuant thereto has served the Riggs National Bank with writs and interrogatories in attachment before judgment. The Riggs National Bank is the trustee under a trust indenture dated July 3, 1947, and of which the defendant Russell L. Fay is the grantor.
Under the terms of the trust, the trustee is to pay Mary H. Fay, a former wife of the defendant, $ 450 per month 'until such time as the interest of the aforesaid children shall have terminated.' The trust further provides that the interest of each child shall terminate when such child attains the age of 21, or dies or marries under that age. After the interest of each child shall have terminated, Mary M. Fay shall then receive $ 300 per month until her death or remarriage. Presently, the youngest child is now 19 years of age and will reach the age of 21 on May 27, 1960, at which time 'this trust shall terminate as to all except $ 50,000'. According to the answers of Riggs National Bank, trustee, to the interrogatories in attachment, the assets contained in this trust exceed $ 100,000. These answers were furnished November 8, 1957.
The defendants in their answer to the complaint allege as defenses the statute of limitations, a lack of jurisdiction by this Court over the subject matter and the defendants, and a spendthrift provision in the trust which guards the interests of the beneficiaries. Another defense, namely, that the interest of the defendant Russell L. Fay in the trust is not subject to attachment, is raised in that defendant's motion for judgment on the pleadings.
The plaintiff and the defendant Eugenia Fay have filed motions for summary judgment. This Court granted the motion of the defendant Eugenia Fay for summary judgment as she is no longer deemed to be a necessary party to this proceeding.
The plaintiff contends that this is a suit to collect unpaid alimony and that the Court has jurisdiction over the subject matter. She also alleges that the action is in the nature of debt as it is based on a judgment of record. She denies that the claim, or any part of it, is barred by the statute of limitations and states that the rights or interests of the defendant in the aforementioned trust are subject to attachment by his creditors and that this Court has proper jurisdiction over both the property and the defendant.
1. Jurisdiction over the subject matter.
The plaintiff has filed a complaint against this defendant for payment of money due. This basis for this claim is a property settlement entered into by these two parties which was incorporated into a final decree of divorce rendered in the state of Michigan on February 14, 1950.
'It is well settled that all courts are required to give full faith and credit to a foreign decree for alimony when such decree is final. What constitutes a final decree with respect to alimony has been the subject of innumerable decisions, from which has been formulated the rule that a decree for future alimony is within the protection of the full faith and credit clause, even though it may be modified prospectively by future orders of the court. But where the decree is subject to retroactive modification of accrued installments past due, the decree is not entitled to full faith and credit unless the accrued installments have been reduced to a money judgment or its equivalent in the forum possessing the right of retroactive modification.
'The Maryland decisions clearly recognize the right of plaintiff in a divorce case, where past installments of alimony have not been paid, to go into the court which rendered the decree and obtain an order decreeing that such arrears of alimony are due and payable. However, before such an order is issued the defendant has the right to urge modification of such past due sums. When an order decreeing the arrears of alimony due and payable is obtained, that order clearly becomes a final judgment which is entitled to full faith and credit in other jurisdictions. In the present case no such order has been obtained.'
His position on this point is well taken; however, it is not applicable to the present case.
As the plaintiff has pointed out, her claim is based upon a property settlement entered into by these two parties which was incorporated into the decree of divorce. Plaintiff admits that under Michigan law the provisions of a divorce decree relating to alimony or other allowances for the support of wife and children, are subject to modification and, hence, not final decrees, unless reduced to a money judgment in the jurisdiction rendering the decree. However, these provisions of law allowing modification of decrees do not apply to property settlements under Michigan law.
The Michigan courts have consistently held that property settlements in divorce decrees are not subject to later modification in the absence of proof of fraud, or for like reason. Losie v. Losie, 323 Mich. 300, 35 N.W.2d 274; Lytle v. Lytle, 319 Mich. ...