CRS Annotated Constitution

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Claims for Alimony or Property in Forum State.—In Esenwein v. Commonwealth,63 decided on the same day as the second Williams case, the Supreme Court also sustained a Pennsylvania court in its refusal to recognize an ex parte Nevada decree on the ground that the husband who obtained it never acquired a bona fide domicile in the latter State. In this instance, the husband and wife had separated in Pennsylvania, where the wife was granted a support order; after two unsuccessful attempts to win a divorce in that State, the husband departed for Nevada. Upon the receipt of a Nevada decree, the husband thereafter established a residence in Ohio and filed an action in Pennsylvania for total relief from the support order. In a concurring opinion, in which he was joined by Justices Black and Rutledge, Justice Douglas stressed the “basic difference between the problem of marital capacity and the problem of support,” and stated that it was “not apparent that the spouse who obtained the decree can defeat an action for maintenance or support in another State by showing that he was domiciled in the State which awarded him the divorce decree,” unless the other spouse appeared or was personally served. “The State where the deserted wife is domiciled has a concern in the welfare[p.847]of the family deserted by the head of the household. If he is required to support his former wife, he is not made a bigamist and the offspring of his second marriage are not bastardized.” Or, as succinctly stated by Justice Rutledge, “the jurisdictional foundation for a decree in one State capable of foreclosing an action for maintenance or support in another may be different from that required to alter the marital status with extraterritorial effect.”64

Three years later, but on this occasion as spokesman for a majority of the Court, Justice Douglas reiterated these views in the case of Estin v. Estin.65 Even though it acknowledged the validity of an ex parte Nevada decree obtained by a husband, New York was held not to have denied full faith and credit to the decree when, subsequently thereto, it granted the wife a judgment for arrears in alimony founded upon a decree of separation previously awarded to her when both she and her husband after he had resided there a year and upon constructive notice to the wife in New York who entered no appearance, was held to be effective only to change the marital status of both parties in all States of the Union but ineffective on the issue of alimony. Divorce, in other words, was viewed as being divisible; Nevada, in the absence of acquiring jurisdiction over the wife, was held incapable of adjudicating the rights of the wife in the prior New York judgment awarding her alimony. Accordingly, the Nevada decree could not prevent New York from applying its own rule of law which, unlike that of Pennsylvania,66 does permit a support order to survive a divorce decree.67

Such a result was justified as accommodating the interests of both New York and Nevada in the broken marriage by restricting each State to matters of her dominant concern, the concern of New York being that of protecting the abandoned wife against impoverishment. In Simons v. Miami National Bank,68 the Court held that[p.848]a dower right in the deceased husband’s estate is extinguished even though a divorce decree was obtained in a proceeding in which the nonresident wife was served by publication only and did not make a personal appearance.69 The Court found the principle of Estin v. Estin70 was not applicable. In Simons, the Court rejected the contention that the forum court, in giving recognition to the foreign court’s separation decree providing for maintenance and support, has to allow for dower rights in the deceased husband’s estate in the forum State.71 Full faith and credit is not denied to a sister State’s separation decree, including an award of monthly alimony, where nothing in the foreign State’s separation decree could be construed as creating or preserving any interest in the nature of or in lieu of dower in any property of the decedent, wherever located and where the law of the forum State did not treat such a decree as having such effect nor indicate such an effect irrespective of the existence of the foreign State’s decree.72

Decrees Awarding Alimony, Custody of Children.—Resulting as a by–product of divorce litigation are decrees for the payment of alimony, judgments for accrued and unpaid installments of alimony, and judicial awards of the custody of children, all of which necessitate application of the full faith and credit clause when extrastate enforcement is sought for them. Thus, a judgment in State A for alimony in arrears and payable under a prior judgment of separation which is not by its terms conditional nor subject by the law of State A to modification or recall, and on which execution was directed to issue, is entitled to recognition in the forum State. Although an obligation for accrued alimony could have been modified or set aside in State A prior to its merger in the judgment, such a judgment, by the law of State A, is not lacking in finality.73 As to the finality of alimony decrees in general, the Court had previously ruled that where such a decree is rendered, payable in future installments, the right to such installments becomes absolute and vested on becoming due, provided no modification of the decree has been made prior to the maturity of the installments.74 However, a judicial order requiring the payment of arrearages in alimony, which exceeded the alimony previously decreed, is invalid for want of due process, the respondent having been given no oppor[p.849]tunity to contest it.75 “A judgment obtained in violation of procedural due process,” said Chief Justice Stone, “is not entitled to full faith and credit when sued upon in another jurisdiction.”76

An example of a custody case was one involving a Florida divorce decree which was granted ex parte to a wife who had left her husband in New York, where he was served by publication. The decree carried with it an award of the exclusive custody of the child, whom the day before the husband had secretly seized and brought back to New York. The Court ruled that the decree was adequately honored by a New York court when, in habeas corpus proceedings, it gave the father rights of visitation and custody of the child during stated periods and exacted a surety bond of the wife conditioned on her delivery of the child to the father at the proper times,77 it having not been “shown that the New York court in modifying the Florida decree exceeded the limits permitted under Florida laws. There is therefore a failure of proof that the Florida decree received less credit in New York than it had in Florida.”

Answering a question left open in the preceding holding as to the binding effect of the ex parte award, the Court more recently acknowledged that in a proceeding challenging a mother’s right to retain custody of her children, a State is not required to give effect to the decree of another State’s court, which never acquired personal jurisdiction over the mother of her children, and which awarded custody to the father as the result of an ex parte divorce action instituted by him.78 In Kovacs v. Brewer,79 however, the Court indicated that a finding of changed circumstances rendering observance of an absentee foreign custody decree inimical to the[p.850]best interests of the child is essential to sustain the validity of the forum court’s refusal to enforce a foreign decree, rendered with jurisdiction over all the parties but the child, and revising an initial decree by transferring custody from the paternal grandfather to the mother. However, when, as is true in Virginia, agreements by parents as to shared custody of a child do not bind the State’s courts, the dismissal by a Virginia court of a habeas corpus petition instituted by a father to obtain custody was not res judicata in that State; therefore even if the full faith and credit clause were applicable to child custody decrees, it would not require a South Carolina court, in a custody suit instituted by the wife, to recognize a court order not binding in Virginia.80

Status of the Law.—Upon summation, one may speculate as to whether the doctrine of divisible divorce, as developed by Justice Douglas in Estin v. Estin,81 has not become the prevailing standard for determining the enforceability of foreign divorce decrees. If such be the case, it may be tenable to assert that an ex parte divorce, founded upon acquisition of domicile by one spouse in the State which granted it, is as effective to destroy the marital status of both parties in the State of domiciliary origin and probably in all other States and therefore to preclude subsequent prosecutions for bigamy but not to alter rights as to property, alimony, or custody of children in the State of domiciliary origin of a spouse who neither was served nor appeared personally.

In any event the accuracy of these conclusions has not been impaired by any decision rendered by the Court since 1948. Thus, in Armstrong v. Armstrong,82 an ex parte divorce decree obtained by the husband in Florida was deemed to have been adequately recognized by an Ohio court when, with both of the parties before it, it disposed of the wife’s suit for divorce and alimony with a decree limited solely to an award of alimony.83 Similarly, a New York court was held not bound by an ex parte Nevada divorce decree, rendered without personal jurisdiction over the wife, to the extent that it relieved the husband of all marital obligations, and in an ex parte action for separation and alimony instituted by the wife,[p.851]it was competent to sequester the husband’s property in New York to satisfy his obligations to the wife.84


63 325 U.S. 279 (1945).
64 Id., 281–283.
65 334 U.S. 541 (1948). See also the companion case of Kreiger v. Kreiger, 334 U.S. 555 (1948).
66 Esenwein v. Commonwealth, 325 U.S. 279, 280 (1945).
67 Because the record, in his opinion, did not make it clear whether New York “law” held that no “ ex parte” divorce decree could terminate a prior New York separate maintenance decree, or merely that no “ ex parte” decree of divorce of another State could, Justice Frankfurter dissented and recommended that the case be remanded for clarification. Justice Jackson dissented on the ground that under New York law, a New York divorce would terminate the wife’s right to alimony, and if the Nevada decree is good, it was entitled to no less effect in New York than a local decree. However, for reasons stated in his dissent in the first Williams case, 317 U.S. 287, he would have preferred not to give standing to constructive service divorces obtained on short residence. 334 U.S. 541, 549–554 (1948). These two Justices filed similar dissents in the companion case of Kreiger v. Kreiger, 334 U.S. 555, 557 (1948).
68 381 U.S. 81 (1965).
69 Id., 84–85.
70 334 U.S. 541 (1948).
71 381 U.S., 84–85.
72 Id., 85.
73 Barber v. Barber, 323 U.S. 77, 84 (1944).
74 Sistare v. Sistare, 218 U.S. 1, 11 (1910). See also Barber v. Barber, 21 How. (62 U.S.) 582 (1859); Lynde v. Lynde, 181 U.S. 183, 186–187 (1901); Audubon v. Shufeldt, 181 U.S. 575, 577 (1901); Bates v. Bodie, 245 U.S. 520 (1918); Yarborough v. Yarborough, 290 U.S. 202 (1933); Loughran v. Loughran, 292 U.S. 216 (1934).
75 Griffin v. Griffin, 327 U.S. 220 (1946).
76 Id., 228. An alimony case of a quite extraordinary pattern was that of Sutton v. Leib. Because of the diverse citizenship of the parties, who had once been husband and wife, the case was brought by the latter in a federal court in Illinois. Her suit was to recover unpaid alimony which was to continue until her remarriage. To be sure, she had, as she confessed, remarried in Nevada, but the marriage had been annulled in New York on the ground that the man was already married, inasmuch as his divorce from his previous wife was null and void, she having neither entered a personal appearance nor been personally served. The Court, speaking by Justice Reed, held that the New York annulment of the Nevada marriage must be given full faith and credit in Illinois but left Illinois to decide for itself the effect of the annulment upon the obligations of petitioner’s first husband. Sutton v. Leib, 342 U.S. 402 (1952).
77 Halvey v. Halvey, 330 U.S. 610, 615 (1947).
78 May v. Anderson, 345 U.S. 528 (1953). Justices Jackson, Reed, and Minton dissented.
79 356 U.S. 604 (1958). Rejecting the implication that recognition must be accorded unless the circumstances have changed, Justice Frankfurter dissented on the ground that in determining what is best for the welfare of the child, the forum court cannot be bound by an absentee, foreign custody decree, “irrespective of whether changes in circumstances are objectively provable.”
80 Ford v. Ford, 371 U.S. 187, 192–194 (1962). As part of a law dealing with parental kidnapping, Congress, in P.L. 96–611, 8(a), 94 Stat. 3569 , 28 U.S.C. Sec. 1738A , required States to give full faith and credit to state court custody decrees provided the original court had jurisdiction and is the home State of the child.
81 334 U.S. 541 (1948).
82 350 U.S. 568 (1956).
83 Four Justices, Black, Douglas, Clark, and Chief Justice Warren, disputed the Court’s contention that the Florida decree contained no ruling on the wife’s entitlement to alimony and mentioned that for want of personal jurisdiction over the wife, the Florida court was not competent to dispose of that issue. Id., 575
84 Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957). Two Justices dissented. Justice Frankfurter was unable to perceive “why dissolution of the marital relation is not so personal as to require personal jurisdiction over the absent spouse, while the denial of alimony . . . is.” Justice Harlan maintained that inasmuch as the wife did not become a domiciliary of New York until after the Nevada decree, she had no pre– divorce rights in new York which the latter was obligated to protect.
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