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 Justice Black, 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 deep concern in the welfare 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 Justice Rutledge succinctly stated in a concurring opinion, “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 speaking for a majority of the Court, Justice Douglas reiterated these views in Estin v. Estin.65 In this case, a New York court had granted a wife a decree of separation and awarded her alimony. Subsequently, in Nevada, her husband obtained an ex parte divorce decree, which made no provision for alimony. He ceased paying the New York-awarded alimony, and the wife sued him in New York. The husband argued that the Nevada decree had wiped out the alimony claim, but Justice Douglas found that “Nevada had no power to adjudicate [the wife’s] rights in the New York judgment, [and] New York need not give full faith and credit to that phase of Nevada’s judgment. . . . . The result in this situation is to make the divorce divisible—to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony.”66 Accordingly, the Nevada decree could not prevent New York from applying its own rule of law which, unlike that of Pennsylvania,67 does permit a support order to survive a divorce decree.68

Such a result was justified as “accommodat[ing] the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern,”69 the concern of New York being that of protecting the abandoned wife against impoverishment. In Simons v. Miami National Bank,70 the Court held that 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.71 The Court found the principle of Estin v. Estin72 inapplicable. 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.73 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.74

Footnotes

63
325 U.S. 279 (1945). [Back to text]
64
325 U.S. at 281–83. [Back to text]
65
334 U.S. 541 (1948). See also the companion case of Kreiger v. Kreiger, 334 U.S. 555 (1948). [Back to text]
66
334 U.S. at 549. [Back to text]
67
Esenwein v. Commonwealth, 325 U.S. 279, 280 (1945). [Back to text]
68
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, 549–54 (1948). These two Justices filed similar dissents in the companion case of Kreiger v. Kreiger, 334 U.S. 555, 557 (1948). [Back to text]
69
334 U.S. at 549. [Back to text]
70
381 U.S. 81 (1965). [Back to text]
71
381 U.S. at 84–85. [Back to text]
72
334 U.S. 541 (1948). [Back to text]
73
381 U.S. at 84–85. [Back to text]
74
381 U.S. at 85. [Back to text]