BEFORE ROY NOBLE LEE, C.J., PRATHER & SULLIVAN, JJ.
SULLIVAN, JUSTICE, FOR THE COURT:
Arthur and Jeanne Sollitt (Robertson) were married at Kenilworth, Illinois, on November 9, 1957 and had twin sons, James and Thomas, born on April 25, 1958. The couple lived together until August 14, 1962, when Arthur deserted the family. On April 19, 1965, Arthur and Jeanne were divorced by decree from the Circuit Court of Cook County, Illinois, Chancery Division. In the decree for divorce, Arthur was required to pay $125.00 per week for child support until further order of the court. The twins remained in the custody of their mother and resided in Illinois. Arthur remarried in 1968 to Karen Rak and as a result of this marriage fathered two children, Ian and Luke Sollitt.
After the divorce decree of April 19, 1965, Arthur did not pay child support. On May 11, 1970, Jeanne obtained a
judgment against Arthur for child support arrearage in the Circuit Court of Cook County, Illinois. The amount of that judgment was $34,750.00. Arthur Sollitt's mother, Louise M. Sollitt, died on November 8, 1969. The will of Louise M. Sollitt was probated in Sunflower County, Mississippi. Mrs. Sollitt had a number of savings bonds and jewelry in a safe deposit box in the Wilmette State Bank, Wilmette, Illinois. In an attempt to recover the amount of the 1970 judgment Jeanne Robertson brought an action for the contents of the safe deposit box in Cook County Court, Chancery Division. As a result of this action the chancellor stated that Mrs. Robertson could cash the savings bonds that were in the name of Arthur Sollitt. The chancellor further stated that the seven United States Savings Bonds in the box that were payable to Louise M. Sollitt presently belonged to the co-trustees of the estate. The chancellor denied Robertson's claim to these bonds without prejudice so she could bring a claim for them in the proceeding probating Mrs. Louise M. Sollitt's will in Sunflower County, Mississippi. Mrs. Robertson's counsel then contacted the co-trustees of Louise M. Sollitt's estate and informed them that Mrs. Robertson was going to seek the indebtedness and Arthur's future payments from his share of his mother's estate. Through an agreement reached between the Trustees of the trust and Mrs. Robertson's counsel, the seven bonds in the trustee's possession were sold and the $7,898.80 from the sale was credited against the 1970 judgment. Some other items from the safety deposit box were also sold bringing the total credit to $8,101.36.
Louise M. Sollitt's will also established a testamentary trust of which Arthur was one of the income beneficiaries. Since Mrs. Robertson had stated her intent to recover Arthur's indebtedness and his future payments from his share of his mother's estate, an agreement was reached at the same time the bonds were sold whereby the Trustees agreed to make payments to Mrs. Robertson. As a result of this agreement the Trustees agreed to pay $1200.00 per year for each of the twins plus an additional amount of between $500.00 and $1,000.00 per year, depending on the income received from the trust estate. These payments were to come from Arthur's share of the trust. This offer of settlement was accepted by Jeanne Robertson in a letter from her counsel to the Trustees. Arthur Sollitt was out of the country when this settlement was reached but gave it his approval when he was informed of the agreement. Between December 1970 and January 27, 1976, the trust paid to or on behalf of the twins, $15,162.50. Even though the twins turned eighteen (18) (the age of majority in Illinois) on April 26, 1976, the trust continued to make payments. From May 6, 1976, until December 21, 1981, the trust paid to, or on behalf of the twins $24,455.67.
In October of 1983, Jeanne Robertson filed a petition to revive the 1970 judgment and obtained a judgment for unpaid child support for the period of May 12, 1970 to April 25, 1976. In her petition to revive Mrs. Robertson claimed that no payments had been made to satisfy the judgment other than the proceeds from the sale of the bonds. Arthur protested this action on several grounds including that the prior judgment had been satisfied by trust payments made on his behalf by the Trustees to the twins. The case was tried beginning May 21, 1984, in the Circuit Court of Cook County, Illinois, Domestic Relations Division. The parties to this action were Mrs. Jeanne Sollitt Robertson and Arthur Sollitt. There was no representative of the trust present at this action. During the trial in Illinois the judge commented on Louise M. Sollitt's will saying that there was discretionary language in the will for the trustees to make payments to the twins. On August 3, 1984, the Illinois Court issued its order granting judgment against Mr. Sollitt in the amount of $124,852.35. This amount was comprised of the original 1970 judgment plus interest as well as back child support payments from 1970 to 1976 and accrued interest on that amount. Attorneys fees were also entered in the amount of $19,875.26. Mr. Sollitt appealed this action to the Illinois Appellate Court. In affirming the lower court's decision, the Illinois Appellate Court stated that the evidence showed that the Trustees had discretion under the will to make voluntary payments to the twins. In Re Robertson, 151 Ill. App. 3d 214, 218-19, 502 N.E.2d 1279, 1286 (1986).
After the award of judgment in the Cook County Court, Mrs. Robertson filed a Notice of Foreign Judgment in the Circuit Court of Sunflower County, Mississippi, on May 1, 1985. Mrs. Robertson then filed a writ of garnishment action against the Trustees in Sunflower County Circuit Court on July 24, 1985. This garnishment action was transferred to the Chancery Court of Sunflower County on September 27, 1985.
On February 14, 1986, Karen Rak Sollitt (Arthur Sollitt's second wife) filed a motion for payment of child support from the trust funds in the Chancery Court of Sunflower County. Arthur Sollitt and Karen Rak were divorced in Maryland in 1974. Pursuant to a consent decree filed June 15, 1982, in the Circuit Court for Anne Arundel County, Maryland, Arthur was ordered to pay $2,000.00 per year per child in quarterly installments as child support. He was also ordered to pay school expenses for the two children, Ian and Luke Sollitt, and psychiatric counseling expenses for Ian. When Arthur Sollitt was thirty day in arrears, the Maryland Court imposed a lien on Arthur's share of the trust. This was done on June 13, 1985. Arthur Sollitt had signed an authorization on June 12, 1985,
ordering the Trustees of his mother's trust to direct his entitlement to Karen Rak Sollitt. The reason for Karen Rak Sollitt's action was that due to the garnishment proceedings initiated by Mrs. Robertson, the disbursements for her children had not been made. The Trustees stated that they had a $1,000 check for the December 30, 1985, support payments to Karen Rak Sollitt and were waiting for court permission to make a distribution.
Before the trial in Sunflower County Chancery Court, Mrs. Robertson filed a motion for partial summary judgment. In his ruling the chancellor granted full faith and credit as to whether the Illinois Court had jurisdiction over Arthur Sollitt. Yet, the chancellor denied the motion in other respects because there were issues of material fact.
The trial commenced on April 15, 1986. At trial three witnesses testified, Mrs. Jeanne Robertson, Mr. Arthur M. Sollitt, and Mr. Sumner Sollitt, Trustee. Mrs. Karen Rak Sollitt was represented by counsel who cross-examined the witnesses. The court prior to issuing its judgment entered its findings of fact and conclusions of law. In his conclusions of law, the chancellor granted full faith and credit to the Illinois judgment subject to the proper defenses in a garnishment action. Since the Trustees were not a party to the Illinois action they were given a credit against the garnishment in the amount of $39,618.17. The chancellor did not have to decide the priority between Robertson's and Rak's claims since Robertson conceded the priority of an equitable allocation of the trust income. The judgment was filed September 26, 1986, granting the Trustees a $39,618.17 credit against the Illinois judgment and allocating that future trust payments be divided one-third to Mrs. Robertson, one-third to Mrs. Karen Rak Sollitt and one-third to Mr. Sollitt. Mr. Sollitt was given one-third because he had now remarried for the third time.
SHOULD FULL FAITH AND CREDIT BE GRANTED TO THE ILLINOIS JUDGMENT?
Since the issue of full faith and credit has been raised in several assignments with regard to the Illinois judgment, this issue must be examined before ...