Decrees Awarding Alimony, Custody of Children.

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 that 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.75 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.76 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 opportunity to contest it.77 “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.”78

An example of a custody case was one involving a Florida divorce decree that 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,79 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 had 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.80 In Kovacs v. Brewer,81 however, the Court indicated that a finding of changed circumstances rendering observance of an absentee foreign custody decree inimical to the 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.82

Footnotes

75
Barber v. Barber, 323 U.S. 77, 84 (1944). [Back to text]
76
Sistare v. Sistare, 218 U.S. 1, 11 (1910). See also Barber v. Barber, 62 U.S. (21 How.) 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). [Back to text]
77
Griffin v. Griffin, 327 U.S. 220 (1946). [Back to text]
78
327 U.S. at 228. An alimony case of a quite extraordinary pattern was that of Sutton v. Leib, 342 U.S. 402 (1952). 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 that 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, because 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. [Back to text]
79
Halvey v. Halvey, 330 U.S. 610, 615 (1947). [Back to text]
80
May v. Anderson, 345 U.S. 528 (1953). Justices Jackson, Reed, and Minton dissented. [Back to text]
81
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.” [Back to text]
82
Ford v. Ford, 371 U.S. 187, 192–94 (1962). As part of a law dealing with parental kidnaping, Congress, in Pub. L. 96–611, 8(a), 94 Stat. 3569, 28 U.S.C. § 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. [Back to text]