Before HASTINGS, Chief Judge, SCHNACKENBERG, Circuit Judge, and MERCER, District Judge.
SCHNACKENBERG, Circuit Judge.
This diversity action was instituted by Ann Meredith Morris, a citizen of the state of New York, against Philip Morris, Jr., a citizen of the state of Illinois, to recover monies allegedly due under a New York Supreme Court decree of separation granted to plaintiff on May 4, 1954. The decree provided that defendant pay to plaintiff the sum of $100 per week as alimony and the carrying charges ($274 per month) on a cooperative apartment occupied by plaintiff. In the district court it was stipulated that, under the terms of the New York decree there had accrued, as of March 18, 1959, the sum of $33,000, unless that judgment had been superseded by a Nevada decree of divorce entered on September 14, 1954, granting defendant a divorce from the instant plaintiff in an ex parte proceeding in which the latter made no appearance.*fn1 It was further stipulated that no court of competent jurisdiction in the state of New York has entered any order, judgment or decree determining as a matter of law that any specific sum or sums of money "is or are" due plaintiff from defendant under and by virtue of the New York decree.
The district court entered judgment for $36,758.12 and costs in favor of plaintiff. Upon a subsequent motion made by plaintiff, the judgment was amended and the New York decree was "established in this court and shall be enforceable by equitable remedies." The amending order also provided that "the plaintiff shall also have judgment for future installments of alimony and apartment maintenance as they become due from the defendant according to the provisions of the decree of May 4, 1954 established in this Court." Defendant now appeals from both the judgment and the amending order.
At all times relevant herein there was in effect in New York §§ 1170 and 1171-b of the pertinent New York act (N.Y. Civil Practice Act, §§ 1170, 1171-b) which provide:
"1170. Custody and maintenance of children, and support of plaintiff in action for divorce or separation.
"Where an action for divorce or separation is brought by either husband or wife, the court, except as otherwise expressly prescribed by statute, must give, either in the final judgment, or by one or more orders, made from time to time before final judgment, such directions as justice requires, between the parties, for the custody, care, education, and maintenance of any of the children of the marriage, and where the action is brought by the wife, for the support of the plaintiff. The court, by order, upon the application of either party to the action, * * * after due notice to the other, * * * at any time after final judgment, may annul, vary or modify such directions, or in case no such direction or directions shall have been made, amend it by inserting such direction or directions as justice requires * * * for the support of the plaintiff in such final judgment or order or orders. Subject to the provisions of section eleven hundred seventy-one-b the authority granted by this section shall extend to unpaid sums or installments accrued prior to the application as well as to sums or installments to become due thereafter." (Emphasis supplied.)*fn2
"1171-b. Enforcement by execution of judgment or order in action for divorce, separation or annulment.
"Where the husband, in an action for divorce, separation, annulment, or declaration of nullity of a void marriage, or a person other than the husband when an action for annulment is maintained after the death of the husband, makes default in paying any sum of money as required by the judgment or order directing the payment thereof, the court in its discretion may make an order directing the entry of judgment for the amount of such arrears, or for such part thereof as justice requires having regard to the circumstances of the respective parties, together with ten dollars costs and disbursements. The application for such order shall be upon such notice to the husband or other person as the court may direct. Such judgment may be enforced by execution or in any other manner provided by law for the collection of money judgments. The relief herein provided for is in addition to any and every other remedy to which the wife may be entitled under the law; provided that when a judgment for such arrears or any part thereof shall have been entered pursuant to this section, such judgment shall thereafter not be subject to modification under the discretionary power granted by this section; and after the entry of such judgment the judgment creditor shall not thereafter be entitled to collect by any form of remedy any greater portion of such arrears than that represented by the judgment so entered." (Emphasis supplied.)
Defendant contends that the New York decree awarding plaintiff monthly support payments was not final, but was subject to modification, even as to sums accrued and unpaid, the unpaid accruals not having been reduced to judgment. On the other hand, plaintiff argues that the New York decree itself possesses the requisites of finality necessary for its enforcement under the full faith and credit clause of the United States constitution.*fn3
In Barber v. Barber, 323 U.S. 77, 65 S. Ct. 137, 89 L. Ed. 82, it appears that petitioner secured a judgment of separation from her husband in a North Carolina court. The judgment provided for monthly payments of alimony.Several years later a judgment for the amount of alimony accrued and unpaid was entered in her favor and it was ordered that execution issue therefor. She then sued him in a Tennessee court to recover on the latter judgment. It was argued by the husband that the judgment sued upon was not final under North Carolina law, and the Supreme Court of Tennessee so held. In Barber, 323 U.S. at page 80, 65 S. Ct. at page 138, the Supreme Court pointed out that, in Sistare v. Sistare, 218 U.S. 1, 30 S. Ct. 682, 54 L. Ed. 905, it had held that a decree for future alimony is not final, if past due installments are retroactively subject to modification or recall by the court after their accrual. However, in Barber, the court emphasized that the present suit was not brought upon a decree of that nature, but for alimony reduced to a money judgment, upon which execution had been ordered to issue. It was held that the Tennessee court's decision was erroneous in holding the judgment sued on was not final under the law of North Carolina. See also Lynde v. Lynde, 181 U.S. 183, 187, 21 S. Ct. 555, 45 L. Ed. 810.
In Barber, 323 U.S. at page 81, 65 S. Ct. at page 139, the court pointed out that in determining the
"* * * applicable law of North Carolina, this Court reexamines the issue with deference to the opinion of the Tennessee court, although we cannot accept its view of the law of North Carolina as conclusive. This is not a case where a question of local law is peculiarly within the cognizance of the local courts in which the case arose. The determination of North Carolina law can be made by this Court as readily as by the Tennessee courts, and since a federal right is asserted, it is the duty of this Court, upon an independent investigation, to determine for itself the law of North Carolina. See Adam v. Saenger, 303 U.S. 59, 64, 58 S. Ct. 454, 457, 82 L. Ed. 649 and cases cited."*fn4
In Barber, the court concluded that it could not say that the "validity and finality of the judgment sued upon * * * is not ...