| Orr v. Orr
(No. 77-1119)
351 So.2d 904, reversed and remanded. |
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| Syllabus
| Opinion
[ Brennan ] | Concurrence
[ Blackmun ] | Concurrence
[ Stevens ] | Dissent
[ Powell ] | Dissent
[ Rehnquist ] |
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Orr v. Orr
APPEAL FROM THE COURT OF CIVIL APPEALS OF ALABAMA
MR. JUSTICE POWELL, dissenting.
I agree with MR. JUSTICE REHNQUIST that the Court, in its desire to reach the equal protection issue in this case, has dealt too casually with the difficult Art. III problems which confront us. Rather than assume the answer to questions of state law on which the resolution of the Art. III issue should depend, an which well may moot the equal protection question in this case, I would abstain from reaching either of the constitutional questions at the present time.
This Court repeatedly has observed:
[W]hen a federal constitutional claim is premised on an unsettled question of state law, the federal court should stay its hand in order to provide the state courts an opportunity to settle the underlying state law question, and thus avoid the possibility of unnecessarily deciding a constitutional question.
Harris County Comm'rs Court v. Moore, 420 U.S. 77, 83 (1975). See Elkins v. Moreno, 435 U.S. 647 (1978); Boehning v. Indiana State Employees Assn., Inc., 423 U.S. 6 (1975); Askew v. Hargrave, 401 U.S. 476 (1971); Reetz v. Bozanich, [p286] 397 U.S. 82 (1970); Aldrich v. Aldrich, 378 U.S. 540 (1964); Dresner v. Tallahassee, 378 U.S. 539 (1964); Clay v. Sun Ins. Office Ltd., 363 U.S. 207 (1960); Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639 (1959); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101 (1944); Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941). The Court should follow this principle in the present case.
Here, there are present two questions of state law, the resolution of which almost certainly will determine the outcome of this litigation, and, at the least, will substantially alter the issues presented. The Court concedes that Alabama properly might regard this challenge to the terms of the divorce decree as untimely, as it came for the first time -- more than two years after the decree became final -- in a contempt proceeding to enforce the alimony obligation. Ante at 275 n. 4. Moreover, appellant had interposed no objection to the entry of the decree and the approval therein of the settlement agreement, nor had he questioned the validity of the Alabama statute. If, in these circumstances, provisions of a divorce decree are subject to collateral attack, grave questions will arise in Alabama and other States. It hardly need be said that the policy of repose embodied in a prohibition of collateral attack has especial importance with respect to divorce and alimony decrees. It is not surprising, therefore, that, subsequent to its decision in this case, the Alabama Court of Civil Appeals held that a claim identical to appellant's would not be considered, where the husband raised it for the first time on a motion for a new trial. Hughes v. Hughes, 362 So.2d 910, cert. dismissed as improvidently granted, 362 So.2d 918 (Ala.1978), appeal docketed, No. 78-1071. This holding should apply a fortiori to a case where the constitutional claim was not raised until a contempt proceeding.
The second question of state law concerns the formal settlement agreement entered into between appellant and appellee, which deals in detail with the "property rights, alimony, and [p287] other matters in dispute" between the parties, and which was approved by the divorce court. The agreement requires the husband to pay $1,240 per month for the "support and maintenance, use and comfort" of the wife for her life or until she remarries. It also specifies that the terms and provisions of the agreement
shall inure to and be binding upon the parties hereto and their respective heirs, assigns, executors, administrators and legal representatives.
App. 7-15. Although the Court does not view this agreement as any obstacle to reaching the constitutional question, it does acknowledge that appellant "may have a continuing obligation to his former wife based upon that agreement" -- as a matter of "state contract law" quite apart from the divorce decree. Ante at 275.
If appellant's collateral attack on the terms of the divorce decree could not properly be entertained under Alabama law, or if the alimony obligation assumed by appellant in the settlement agreement remains enforceable under Alabama law, the question whether this Court constitutionally may exercise jurisdiction over the dispute would be close and difficult. [n1] In addition, it would be unnecessary to consider the constitutionality of Alabama's divorce statute, as the "adequate and independent state ground" doctrine then would bar federal review of the judgment against appellant. [n2] [p288]
The Court, in order to find a case or controversy present here, necessarily assumes the answer to both of the state law questions in this case. In some circumstances, such assumptions might be appropriate. We cannot anticipate every state law issue that ultimately could bar the realization of an otherwise substantial federal claim, and the failure of either the state courts or the parties to address an issue ordinarily might indicate that it does not present a problem. But here the Court concedes the substantiality of the identified but unanswered questions. Indeed, in light of Hughes v. Hughes, supra, it could not do otherwise.
The uncertainty and ambiguity surrounding this case is accentuated by the fact that appellant apparently does not contend that the entire divorce decree is invalid; he seeks relief only from so much of the decree as imposes an alimony obligation. But this obligation is only one element of the detailed and comprehensive agreement signed by the parties and witnessed by their respective attorneys. The agreement was not made subject to the approval of the divorce court. Apart from whether the contractual obligation to pay alimony remains binding on appellant, is there a question as to the binding effect of the divorce itself upon appellee? Would she have agreed to divorce appellant without a contest, and without making a record of her grounds for divorce, unless she had the assurance of a valid and enforceable court order providing support and maintenance for her lifetime?
Apparently none of these questions was raised in either of the Alabama courts. No explanation has been offered us as to why the case is presented here in this manner. [n3] In view of [p289] the substantiality of the unanswered questions, it must be conceded that serious doubts exist as to either the presence of a judicially cognizable case or controversy or to appellant's obtaining any advantage from his constitutional claim. The failure of the parties to raise the questions in the courts below, and of the courts to raise them sua sponte, cannot bind us. On the record before us, it cannot be said with assurance that the interests of these parties before this Court are fully adversary, or that they are not seeking -- for reasons undisclosed -- a purely advisory opinion on a constitutional issue of considerable importance. [n4]
In these circumstances, I find the Court's insistence upon reaching and deciding the merits quite irreconcilable with the long-established doctrine that we abstain from reaching a federal constitutional claim that is premised on unsettled questions of state law without first affording the state courts [p290] an opportunity to resolve such questions. I therefore would remand the case to the Supreme Court of Alabama.
1. The Court confuses the questions of the existence of a case or controversy under Art. III with the application of the "adequate and independent state ground" doctrine. It is true that the failure of the courts below to rest their decision on a state law ground means that we are not without power to decide the case for that reason. Cf. Murdock v. Memphis, 20 Wall. 590 (1875). But this does not determine whether the presence in fact of state law grounds for the decision below bars a federal court from considering this claim under Supervisors v. Stanley, 105 U.S. 305 (1882).
2. The Court implies that principles of equitable abstention expressed in the Pullman decision never can apply when the court to which the unresolved question of state law will be referred already has considered the case. Ante at 278 n. 8. But, as the unusual posture of this case illustrates, a state court may have considered a case without having had the relevant state law questions presented to it. See n. 3, infra. Where this is true, the policies that underlie Pullman should apply with equal force.
3. As the Court notes, in appellee's brief in the Alabama Court of Civil Appeals she stated that
[t]he appellee agrees that the issue before this Court is whether the Alabama alimony laws are unconstitutional because of the gender-based classification made in the statutes.
Ante at 276. She made no reference to Alabama authority that already had held that constitutional attacks on the divorce statute would not be heard unless presented at the time the divorce is contested. See Dale v. Dale, 54 Ala.App. 505, 310 So.2d 225 (1975). Even more inexplicable, appellee before this Court has made no reference to Hughes v. Hughes, 362 So.2d 910 (Ala.App.), cert. dismissed as improvidently granted, 362 So.2d 918 (Ala.1978), appeal docketed, No. 71071, in spite of that decision's clear relevance to this case. It is pertinent that the initial decision in Hughes was handed down more than seven months before appellee filed her brief before us, and that the final decision of the Supreme Court of Alabama was announced a month before argument in this case.
4. It is curious, to say the least, that neither party in this case has raised these questions. The competency of appellee's counsel is evidenced by the thoroughness of the settlement agreement he negotiated and witnessed. Moreover, the questions not raised are neither abstruse nor difficult. In view of the way in which this case has been presented, we cannot dismiss the possibility of some rapprochement between these parties that could affect the genuineness of a case or controversy. There may well be an innocent explanation for these most unusual circumstances, but the absence of any such explanation appearing from the record suggests the wisdom of not deciding the constitutional issue.
