APPEAL from the Circuit Court of McLean County; the Hon.
WILLIAM C. RADLIFF, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 23, 1958.
This is an appeal from a decree of the circuit court of McLean County, entered in a proceeding brought to register in that court, under the Uniform Enforcement of Foreign Judgments Act, a divorce decree of the circuit court of the city of St. Louis, Missouri. The case is properly here because the appeal, and particularly the cross appeal, call for a construction of the full-faith-and-credit clause of the Federal constitution.
The Missouri decree was entered May 1, 1944. It granted a divorce to the plaintiff, awarded her the custody of the minor child of the parties, ordered the defendant to pay gross alimony of $3,600, and thereafter to pay $100 a month for support of the child and alimony of $50 a month. On September 28, 1953, the plaintiff filed her petition to register the Missouri decree under the Uniform Act. (Ill. Rev. Stat. 1957, chap. 77, pars. 88-105.) The defendant was personally served with summons. After evidence was heard before a master in chancery, the court entered a decree which directed that the Missouri decree be registered in the circuit court of McLean County "as to past due installments as of September 28, 1953, of alimony and child support, for a period of five years, in the amount of $3775.00." The decree also awarded interest on the amount found due, allowed the plaintiff $1000 for attorney's fees and taxed the costs of the proceeding against the defendant.
The Uniform Act, which was adopted in Illinois in 1951, is intended to make it easier to enforce judgments across State lines. To that end it establishes a procedure for registering the foreign judgment in an appropriate court in this State (sec. 2), and authorizes the levy of execution at once upon a judgment so registered. (Sec. 6.) Sale under the levy is postponed, however, until the judgment debtor has an opportunity, after service of process, to assert whatever defenses he may have to the enforcement of the judgment. (Secs. 4, 5, 8, 13.) Upon default, or if the asserted defenses are not sustained, the registered judgment becomes a final judgment of the court in which it is registered. The judgment so rendered is binding either personally or quasi in rem, depending on the kind of service had upon the defendant. (Secs. 7, 12.) The act applies to "any judgment, decree or order of a court of the United States or of any State or Territory which is entitled to full faith and credit in this state." (Sec. 1.) For comments on the Uniform Act, see 9 U.L.A. 376; Leflar, The New Uniform Foreign Judgments Act, 24 N.Y.U.L.Q. 336.
The first contention that the defendant makes in this court is that registration of the judgment is barred by the Illinois five-year period of limitations for actions on foreign judgments. (Ill. Rev. Stat. 1957, chap. 83, par. 16.) That limitation period is incorporated in section 2 of the Uniform Act. We have long since held, however, that in the case of a judgment for the payment of money in periodic installments a right of action accrues on each installment as it becomes due, and that the period of limitations runs on each installment only from the time it becomes due. (Schuler v. Schuler, 209 Ill. 522.) The gross alimony fixed by the Missouri decree has been paid, and as to subsequent installments of alimony and support payments the decree in this case registered only those unpaid installments that came due within the five years that immediately preceded the filing of the application to register. In this there was no violation of the Illinois Statute of Limitations.
The main thrust of defendant's effort to reverse the decree centers upon the Missouri statute which enacts a conclusive presumption of payment after ten years from the entry of a judgment, in the absence of its revival upon personal service, and in the absence of payments "duly entered upon the record thereof." (Mo. Rev. Stat., sec. 516.350.) This action was commenced well within the ten-year period, but it was not concluded until after that period had elapsed. Defendant's position is that because the statute provides that no suit may "be had or maintained" after the lapse of the ten-year period, the Missouri decree lost its vitality upon the expiration of ten years, and the present action based upon it could not thereafter be "maintained."
We think that defendant is mistaken as to the way in which the Missouri courts would apply the statute to a case like this one. Here the defendant has admitted in his pleadings that he made periodic payments under the decree through March 1, 1946. He also admitted that he made payments thereafter, although he claimed that they were made pursuant to an agreed modification of the decree, and not under the decree. The Missouri cases that are relied upon by defendant, notably Northwestern Brewers Supply Co. v. Vorhees, 356 Mo. 699, 203 S.W.2d 422, and Wormington v. City of Monett, 358 Mo. 1044, 218 S.W.2d 586, were not concerned with situations like this.
On the other hand, there are Missouri decisions that strongly indicate that under the circumstances of this case execution would now be issued upon the decree in Missouri. In State ex rel. Meyer v. Buford, 18 S.W.2d (Mo. App.) 526, the clerk of a circuit court was compelled by mandamus to issue execution on a judgment for alimony. More than 14 years had elapsed from the date of the judgment, but it appeared that payments had been made within ten years prior to the time that execution was sought. In directing the clerk to issue execution, the court said that the clause of the statute "referring to the effect of payments on account of judgments must be deemed to have been inserted for a purpose. If it does not mean that such payments shall have the effect of extending the life of the judgment, it is meaningless. The last clause of the section provides that: `After the expiration of ten years from the date of the original rendition * * * or from the date of the last payment, * * * no execution, order or process shall issue thereon.' This can mean nothing else but that prior to the expiration of 10 years from the date of the last payment, execution may issue."
In Mayes v. Mayes, 342 Mo. 401, 116 S.W.2d 1, in which 16 years had elapsed from the entry of the decree without any notation of payments on the record, the court followed the Buford case, and analyzed the evidence to determine whether the alleged payments were made voluntarily and in compliance with the decree. And again in Peterson v. Peterson, (Mo.) 273 S.W.2d 239, the court referred to the burden of proving voluntary payments under the decree that must be met by one who claims under a judgment more than ten years old, with no credits entered thereon.
In the present case, the defendant has admitted making payments pursuant to the divorce decree. As in the Buford case, upon making proof of the payments, plaintiff would be entitled to an execution. The fact that the payments had not been entered upon the record of the Missouri proceeding within ten years from the day the decree was entered would not be a bar to the issuance of an execution in Missouri. This being so, the Missouri statute is not a bar to plaintiff's present action in Illinois.
But we are also of the opinion that it is not necessary to explore in detail the niceties of the defendant's many arguments based upon the Missouri statute, because under the Uniform Act, as adopted in this State, it is unmistakable that the operative fact is the filing of the petition to register the foreign judgment. "The filing of the petition constitutes registration of the foreign judgment." Immediately upon registration execution may be levied although sale under the levy is postponed until final judgment. (Ill. Rev. Stat. 1957, chap. 77, pars. 90, 93, 100.) Under the Uniform Act, unless the registration is set aside after a hearing, it is the registered judgment that becomes the final judgment of the Illinois court. (Sec. 7.) Such a provision is essential to the act's purpose of protecting the priority of the creditor who levies on the foreign judgment. The act thus contemplates that the vitality of the foreign judgment is to be determined as of the date that it is registered. And in this case the judgment was registered under the statute several months before the ten-year period expired.
Since we conclude that the Missouri decree is not barred from registration by the statutes of this State or of Missouri, we are brought to the questions raised concerning the extent to which its various aspects are entitled to full faith and credit. The defendant concedes, as indeed he must, that the decree is entitled to full faith and credit insofar as it awarded plaintiff a divorce and to the extent that it awarded alimony in gross. But to the extent that it awarded custody of the child to the plaintiff, and ordered monthly payments by way of support and alimony, he argues that it is subject to modification in Missouri and therefore is not entitled to full faith and credit. As to custody, the Missouri court had jurisdiction over the parties and the child when its decree ...