JUDGMENTS: EFFECT TO BE GIVEN IN FORUM STATE
In General

Article IV, § 1, has had its principal operation in relation to judgments. Embraced within the relevant discussions are two principal classes of judgments. First, those in which the judgment involved was offered as a basis of proceedings for its own enforcement outside the state where rendered, as for example, when an action for debt is brought in the courts of State B on a judgment for money damages rendered in State A; second, those in which the judgment involved was offered, in conformance with the principle of res judicata, in defense in a new or collateral proceeding growing out of the same facts as the original suit, as for example, when a decree of divorce granted in State A is offered as barring a suit for divorce by the other party to the marriage in the courts of State B.

The English courts and the different state courts in the United States, while recognizing “foreign judgments in personam,” which were reducible to money terms as affording a basis for actions in debt, originally accorded them generally only the status of prima facie evidence in support thereof, so that the merits of the original controversy could always be opened. When offered in defense, on the other hand, “foreign judgments in personam” were regarded as conclusive upon everybody on the theory that, as stated by Chief Justice Marshall, “it is a proceeding in rem, to which all the world are parties.”3 The pioneer case was Mills v. Duryee,4 decided in 1813. In an action brought in the circuit court of the District of Columbia, the equivalent of a state court for this purpose, on a judgment from a New York court, the defendant endeavored to reopen the whole question of the merits of the original case by a plea of “nil debet.” It was answered in the words of the first implementing statute of 17905 that such records and proceedings were entitled in each state to the same faith and credit as in the state of origin, and that, as they were records of a court in the state of origin, and so conclusive of the merits of the case there, they were equally so in the forum state. The Court found that it had not been the intention of the Constitution merely to reenact the common law—that is, the principles of private international law—with regard to the reception of foreign judgments, but to amplify and fortify these.6 Some years later, in Hampton v. McConnell,7 Chief Justice Marshall went even further, using language that seems to show that he regarded the judgment of a state court as constitutionally entitled to be accorded in the courts of sister states not simply the faith and credit on conclusive evidence but the validity of final judgment.

When, however, the next important case arose, the Court had come under new influences. This case was McElmoyle v. Cohen,8 in which the issue was whether a statute of limitations of the State of Georgia, which applied only to judgments obtained in courts other than those of Georgia, could constitutionally bar an action in Georgia on a judgment rendered by a court of record of South Carolina. Declining to follow Marshall’s lead in Hampton v. McConnell, the Court held that the Constitution was not intended “materially to interfere with the essential attributes of the lex fori,” that the act of Congress only established a rule of evidence—of conclusive evidence to be sure, but still of evidence only; and that it was necessary, in order to carry into effect in a state the judgment of a court of a sister state, to institute a fresh action in the court of the former, in strict compliance with its laws; and that, consequently, when remedies were sought in support of the rights accruing in another jurisdiction, they were governed by the lex fori. In accord with this holding, the Court further held that foreign judgments enjoy, not the right of priority or privilege or lien that they have in the state where they are pronounced but only what the lex fori gives them by its own laws, in their character of foreign judgments.9 A judgment of a state court, in a cause within its jurisdiction, and against a defendant lawfully summoned, or against lawfully attached property of an absent defendant, is entitled to as much force and effect against the person summoned or the property attached, when the question is presented for decision in a court in another state, as it has in the state in which it was rendered.10

A judgment enforceable in the state where rendered must be given effect in another state, notwithstanding that the modes of procedure to enforce its collection may not be the same in both states.11 If the initial court acquired jurisdiction, its judgment is entitled to full faith and credit elsewhere even though the former, by reason of the departure of the defendant with all his property, after having been served, has lost its capacity to enforce it by execution in the state of origin.12 “A cause of action on a judgment is different from that upon which the judgment was entered. In a suit upon a money judgment for a civil cause of action, the validity of the claim upon which it was founded is not open to inquiry, whatever its genesis. Regardless of the nature of the right which gave rise to it, the judgment is an obligation to pay money in the nature of a debt upon a specialty. Recovery upon it can be resisted only on the grounds that the court which rendered it was without jurisdiction, . . . or that it has ceased to be obligatory because of payment or other discharge . . . or that it is a cause of action for which the State of the forum has not provided a court.”13

On the other hand, the clause is not violated when a judgment is disregarded because it is not conclusive of the issues before a court of the forum. Conversely, no greater effect can be given than is given in the state where rendered. Thus, an interlocutory judgment may not be given the effect of a final judgment.14 Likewise, when a federal court does not attempt to foreclose the state court from hearing all matters of personal defense that landowners might plead, a state court may refuse to accept the former’s judgment as determinative of the landowners’ liabilities.15 Similarly, though a confession of judgment upon a note, with a warrant of attorney annexed, in favor of the holder, is in conformity with a state law and usage as declared by the highest court of the state in which the judgment is rendered, the judgement may be collaterally impeached upon the ground that the party in whose behalf it was rendered was not in fact the holder.16 But a consent decree, which under the law of the state has the same force and effect as a decree in invitum, must be given the same effect in the courts of another state.17

Subsequent to its departure from Hampton v. McConnell,18 the Court does not appear to have formulated, as a substitute, any clear-cut principles for disposing of the contention that a state need not provide a forum for a particular type of judgment of a sister state. Thus, in one case, it held that a New York statute forbidding foreign corporations doing a domestic business to sue on causes originating outside the state was constitutionally applicable to prevent such a corporation from suing on a judgment obtained in a sister state.19 But, in a later case, it ruled that a Mississippi statute forbidding contracts in cotton futures could not validly close the courts of the state to an action on a judgment obtained in a sister state on such a contract, although the contract in question had been entered into in the forum state and between its citizens.20 Following the later rather than the earlier precedent, subsequent cases21 have held: (1) that a state may adopt such system of courts and form of remedy as it sees fit but cannot, under the guise of merely affecting the remedy, deny enforcement of claims otherwise within the protection of the full faith and credit clause when its courts have general jurisdiction of the subject matter and the parties;22 (2) that, accordingly, a forum state that has a shorter period of limitations than the state in which a judgment was granted and later revived erred in concluding that, whatever the effect of the revivor under the law of the state of origin, it could refuse enforcement of the revived judgment;23 (3) that the courts of one state have no jurisdiction to enjoin the enforcement of judgments at law obtained in another state, when the same reasons assigned for granting the restraining order were passed upon on a motion for new trial in the action at law and the motion denied;24 (4) that the constitutional mandate requires credit to be given to a money judgment rendered in a civil cause of action in another state, even though the forum state would have been under no duty to entertain the suit on which the judgment was founded, because a state cannot, by the adoption of a particular rule of liability or of procedure, exclude from its courts a suit on a judgment;25 and (5) that, similarly, tort claimants in State A who obtain a judgment against a foreign insurance company, notwithstanding that, prior to judgment, domiciliary State B appointed a liquidator for the company, vested company assets in him, and ordered suits against the company stayed, are entitled to have such judgment recognized in State B for purposes of determining the amount of the claim, although not for determination of what priority, if any, their claim should have.26

Jurisdiction: A Prerequisite to Enforcement of Judgments

The jurisdictional question arises both in connection with judgments in personam against nonresident defendants to whom it is alleged personal service was not obtained in the state originating the judgment and in relation to judgments in rem against property or a status alleged not to have been within the jurisdiction of the court which handed down the original decree.27 Records and proceedings of courts wanting jurisdiction are not entitled to credit.28

Judgments in Personam.

When the subject matter of a suit is merely the defendant’s liability, it is necessary that it should appear from the record that the defendant has been brought within the jurisdiction of the court by personal service of process, or by his voluntary appearance, or that he had in some manner authorized the proceeding.29 Thus, when a state court endeavored to acquire jurisdiction of a nonresident defendant by an attachment of his property within the state and constructive notice to him, its judgment was defective for want of jurisdiction and hence could not afford the basis of an action against the defendant in the court of another state, although it bound him so far as the property attached by virtue of the inherent right of a state to assist its own citizens in obtaining satisfaction of their just claims.30

The fact that a nonresident defendant was only temporarily in the state when he was served in the original action does not vitiate the judgment thus obtained and later relied upon as the basis of an action in his home state.31 Also a judgment rendered in the state of his domicile against a defendant who, pursuant to the statute thereof providing for the service of process on absent defendants, was personally served in another state is entitled to full faith and credit.32 When the matter of fact or law on which jurisdiction depends was not litigated in the original suit, it is a matter to be adjudicated in the suit founded upon the judgment.33

Because the principle of res judicata applies only to proceedings between the same parties and privies, the plea by defendant in an action based on a judgment that he was not party or privy to the original action raises the question of jurisdiction; although a judgment against a corporation in one state may validly bind a stockholder in another state to the extent of the par value of his holdings,34 an administrator acting under a grant of administration in one state stands in no sort of relation of privity to an administrator of the same estate in another state.35 But where a judgment of dismissal was entered in a federal court in an action against one of two joint tortfeasors, in a state in which such a judgment would constitute an estoppel in another action in the same state against the other tortfeasor, such judgment is not entitled to full faith and credit in an action brought against the tortfeasor in another state.36

Service on Foreign Corporations.

In 1856, the Court de- cided Lafayette Ins. Co. v. French,37 a pioneer case in its general class. It held that, where a corporation chartered by the State of Indiana was allowed by a law of Ohio to transact business in the latter state upon the condition that service of process upon the agent of the corporation should be considered as service upon the corporation itself, a judgment obtained against the corporation by means of such process ought to receive in Indiana the same faith and credit as it was entitled to in Ohio.38 Later cases establish under both the Fourteenth Amendment and Article IV, § 1, that the cause of action must have arisen within the state obtaining service in this way,39 that service on an officer of a corporation, not its resident agent and not present in the state in an official capacity, will not confer jurisdiction over the corporation,40 that the question whether the corporation was actually “doing business” in the state may be raised.41 On the other hand, the fact that the business was interstate is no objection.42

Service on Nonresident Motor Vehicle Owners.

By anal- ogy to the above cases, it has been held that a state may require nonresident owners of motor vehicles to designate an official within the state as an agent upon whom process may be served in any legal proceedings growing out of their operation of a motor vehicle within the state.43 Although these cases arose under the Fourteenth Amendment alone, unquestionably a judgment validly obtained upon this species of service could be enforced upon the owner of a car through the courts of his home state.

Judgments in Rem.

In sustaining the challenge to jurisdic- tion in cases involving judgments in personam, the Court in the main was making only a somewhat more extended application of recognized principles. In order to sustain the same kind of challenge in cases involving judgments in rem it has had to make law outright. The leading case is Thompson v. Whitman.44 Thompson, sheriff of Monmouth County, New Jersey, acting under a New Jersey statute, had seized a sloop belonging to Whitman and by a proceeding in rem had obtained its condemnation and forfeiture in a local court. Later, Whitman, a citizen of New York, brought an action for trespass against Thompson in the United States Circuit Court for the Southern District of New York, and Thompson answered by producing a record of the proceedings before the New Jersey tribunal. Whitman thereupon set up the contention that the New Jersey court had acted without jurisdiction, inasmuch as the sloop which was the subject matter of the proceedings had been seized outside the county to which, by the statute under which it had acted, its jurisdiction was confined.

As previously explained, the plea of lack of privity cannot be set up in defense in a sister state against a judgment in rem. In a proceeding in rem, however, the presence of the res within the court’s jurisdiction is a prerequisite, and this, it was urged, had not been the case in Thompson v. Whitman. Could, then, the Court consider this challenge with respect to a judgment which was offered, not as the basis for an action for enforcement through the courts of a sister state but merely as a defense in a collateral action? As the law stood in 1873, it apparently could not.45 All difficulties, nevertheless, to its consideration of the challenge to jurisdiction in the case were brushed aside by the Court. Whenever, it said, the record of a judgment rendered in a state court is offered “in evidence” by either of the parties to an action in another state, it may be contradicted as to the facts necessary to sustain the former court’s jurisdiction; “and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding the claim that they did exist.”46

Divorce Decrees: Domicile as the Jurisdictional Prerequisite

This, however, was only the beginning of the Court’s lawmaking in cases in rem. The most important class of such cases is that in which the respondent to a suit for divorce offers in defense an earlier decree from the courts of a sister state. By the almost universally accepted view prior to 1906, a proceeding in divorce was one against the marriage status, i.e., in rem, and hence might be validly brought by either party in any state where he or she was bona fide domiciled;47 and, conversely, when the plaintiff did not have a bona fide domicile in the state, a court could not render a decree binding in other states even if the nonresident defendant entered a personal appearance.48

Divorce Suit: In Rem or in Personam; Judicial Indecision.

In 1906, however, by a vote of five to four, the Court de- parted from its earlier ruling, rendered five years previously in Atherton v. Atherton,49 and in Haddock v. Haddock,50 it announced that a divorce proceeding might be viewed as one in personam. In the former case it was held, in the latter case denied, that a divorce granted a husband without personal service upon the wife, who at the time was residing in another state, was entitled to recognition under the full faith and credit clause and the acts of Congress; the difference between the cases consisted solely in the fact that in the Atherton case the husband had driven the wife from their joint home by his conduct, while in the Haddock case he had deserted her. The court that granted the divorce in Atherton v. Atherton was held to have had jurisdiction of the marriage status, with the result that the proceeding was one in rem and hence required only service by publication upon the respondent. Haddock’s suit, on the contrary, was held to be as to the wife in personam and so to require personal service upon her or her voluntary appearance, neither of which had been had; although, notwithstanding this, the decree in the latter case was held to be valid in the state where obtained because of the state’s inherent power to determine the status of its own citizens. The upshot was a situation in which a man and a woman, when both were in Connecticut, were divorced; when both were in New York, were married; and when the one was in Connecticut and the other in New York, the former was divorced and the latter married. In Atherton v. Atherton the Court had earlier acknowledged that “a husband without a wife, or a wife without a husband, is unknown to the law.”

The practical difficulties and distresses likely to result from such anomalies were pointed out by critics of the decision at the time. In point of fact, they have been largely avoided, because most of the state courts have continued to give judicial recognition and full faith and credit to one another’s divorce proceedings on the basis of the older idea that a divorce proceeding is one in rem, and that if the applicant is bona fide domiciled in the state the court has jurisdiction in this respect. Moreover, until the second of the Williams v. North Carolina cases51 was decided in 1945, there had not been manifested the slightest disposition to challenge judicially the power of the states to determine what shall constitute domicile for divorce purposes. A few years before, the Court in Davis v. Davis52 rejected contentions adverse to the validity of a Virginia decree of which enforcement was sought in the District of Columbia. In this case, a husband, after having obtained in the District a decree of separation subject to payment of alimony, established years later a residence in Virginia and sued there for a divorce. Personally served in the District, where she continued to reside, the wife filed a plea denying that her husband was a resident of Virginia and averred that he was guilty of a fraud on the court in seeking to establish a residence for purposes of jurisdiction. In ruling that the Virginia decree, granting to the husband an absolute divorce minus any alimony payment, was enforceable in the District, the Court stated that in view of the wife’s failure, while in Virginia litigating her husband’s status to sue, to answer the husband’s charges of willful desertion, it would be unreasonable to hold that the husband’s domicile in Virginia was not sufficient to entitle him to a divorce effective in the District. The finding of the Virginia court on domicile and jurisdiction was declared to bind the wife. Davis v. Davis is distinguishable from the Williams v. North Carolina decisions in that in the former determination of the jurisdictional prerequisite of domicile was made in a contested proceeding whereas in the Williams cases it was not.

Williams I and Williams II.

In Williams I and Williams II, the husband of one marriage and the wife of another left North Carolina, obtained six-week divorce decrees in Nevada, married there, and resumed their residence in North Carolina where both previously had been married and domiciled. Prosecuted for bigamy, the defendants relied upon their Nevada decrees and won the preliminary round of this litigation, that is, in Williams I,53 when a majority of the Justices, overruling Haddock v. Haddock, declaring that in this case, the Court must assume that the petitioners for divorce had a bona fide domicile in Nevada and not that their Nevada domicile was a sham. “[E]ach State, by virtue of its command over the domiciliaries and its large interest in the institution of marriage, can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent. There is no constitutional barrier if the form and nature of substituted service meet the requirements of due process.” Accordingly, a decree granted by Nevada to one, who, it is assumed, is at the time bona fide domiciled therein, is binding upon the courts of other states, including North Carolina in which the marriage was performed and where the other party to the marriage is still domiciled when the divorce was decreed. In view of its assumptions, which it justified on the basis of an inadequate record, the Court did not here pass upon the question whether North Carolina had the power to refuse full faith and credit to a Nevada decree because it was based on residence rather than domicile or because, contrary to the findings of the Nevada court, North Carolina found that no bona fide domicile had been acquired in Nevada.54

Presaging what ruling the Court would make when it did get around to passing upon the latter question, Justice Jackson, dissenting in Williams I, protested that “this decision repeals the divorce laws of all the states and substitutes the law of Nevada as to all marriages one of the parties to which can afford a short trip there. . . . While a state can no doubt set up its own standards of domicile as to its internal concerns, I do not think it can require us to accept and in the name of the Constitution impose them on other states. . . . The effect of the Court’s decision today—that we must give extraterritorial effect to any judgment that a state honors for its own purposes—is to deprive this Court of control over the operation of the full faith and credit and the due process clauses of the Federal Constitution in cases of contested jurisdiction and to vest it in the first state to pass on the facts necessary to jurisdiction.”55

Notwithstanding that one of the deserted spouses had died since the initial trial and that another had remarried, North Carolina, without calling into question the status of the latter marriage, began a new prosecution for bigamy; when the defendants appealed the conviction resulting therefrom, the Supreme Court, in Williams II,56 sustained the adjudication of guilt as not denying full faith and credit to the Nevada divorce decree. Reiterating the doctrine that jurisdiction to grant divorce is founded on domicile,57 the Court held that a decree of divorce rendered in one state may be collaterally impeached in another by proof that the court that rendered the decree lacked jurisdiction (the parties not having been domiciled therein), even though the record of proceedings in that court purports to show jurisdiction.58

Cases Following Williams II.

Fears registered by the dis- senters in the second Williams case that it might undermine the stability of all divorces and that the court of each forum state, by its own independent determination of domicile, might refuse recognition of foreign decrees, were temporarily set at rest by Sherrer v. Sherrer,59 which required Massachusetts, a state of domiciliary origin, to accord full faith and credit to a 90-day Florida decree that the husband had contested. The husband, upon receiving notice by mail, retained Florida counsel who entered a general appearance and denied all allegations in the complaint, including the wife’s residence. At the hearing, the husband, though present in person and by counsel, did not offer evidence in rebuttal of the wife’s proof of her Florida residence, and, when the Florida court ruled that she was a bona fide resident, the husband did not appeal. Because the findings of the requisite jurisdictional facts, unlike those in the second Williams case, were made in proceedings in which the defendant appeared and participated, the requirements of full faith and credit were held to bar him from collaterally attacking such findings in a suit instituted by him in his home state of Massachusetts, particularly in the absence of proof that the divorce decree was subject to such collateral attack in a Florida court. Having failed to take advantage of the opportunities afforded him by his appearance in the Florida proceeding, the husband was thereafter precluded from relitigating in another state the issue of his wife’s domicile already passed upon by the Florida court.

In Coe v. Coe,60 embracing a similar set of facts, the Court applied like reasoning to reach a similar result. Massachusetts again was compelled to recognize the validity of a six-week Nevada decree obtained by a husband who had left Massachusetts after a court of that state had refused him a divorce and had granted his wife separate support. In the Nevada proceeding, the wife appeared personally and by counsel filed a cross-complaint for divorce, admitted the husband’s residence, and participated personally in the proceedings. After finding that it had jurisdiction of the plaintiff, defendant, and the subject matter involved, the Nevada court granted the wife a divorce, which was valid, final, and not subject to collateral attack under Nevada law. The husband married again, and on his return to Massachusetts, his ex-wife petitioned the Massachusetts court to adjudge him in contempt for failing to make payments for her separate support under the earlier Massachusetts decree. Inasmuch as there was no intimation that under Massachusetts law a decree of separate support would survive a divorce, recognition of the Nevada decree as valid accordingly necessitated a rejection of the ex-wife’s contention.

Appearing to review Williams II, and significant for the social consequences produced by the result it decreed, is Rice v. Rice.61 To determine the widowhood status of the party litigants in relation to inheritance of property of a husband who had deserted his first wife in Connecticut, had obtained an ex parte divorce in Nevada, and after remarriage, had died without ever returning to Connecticut, the first wife, joining the second wife and the administrator of his estate as defendants, petitioned a Connecticut court for a declaratory judgment. After having placed upon the first wife the burden of proving that the decedent had not acquired a bona fide domicile in Nevada, and after giving proper weight to the claims of power by the Nevada court, the Connecticut court concluded that the evidence sustained the contentions of the first wife, and in so doing, it was upheld by the Supreme Court. Sherrer v. Sherrer and Coe v. Coe, previously discussed, were declared not to be in point, because no personal service had been made upon the first wife, nor had she in any way participated in the Nevada proceedings. She was not, therefore, precluded from challenging the findings of the Nevada court that the decedent was, at the time of the divorce, domiciled in that state.62

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

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

Status of the Law.

The doctrine of divisible divorce, as devel- oped by Justice Douglas in Estin v. Estin,83 may have become the prevailing standard for determining the enforceability of foreign divorce decrees. If this is the case, then it may be that an ex parte divorce, founded upon acquisition of domicile by one spouse in the state that granted it, is effective to destroy the marital status of both parties in the state of domiciliary origin and probably in all other states. The effect is 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 of the Court since 1948. Thus, in Armstrong v. Armstrong,84 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 parties before it, it disposed of the wife’s suit for divorce and alimony with a decree limited solely to an award of alimony.85 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, it was competent to sequester the husband’s property in New York to satisfy his obligations to the wife.86

Other Types of Decrees
Probate Decrees.

Many judgments, enforcement of which has given rise to litigation, embrace decrees of courts of probate respecting the distribution of estates. In order that a court have jurisdiction of such a proceeding, the decedent must have been domiciled in the state, and the question whether he was so domiciled at the time of his death may be raised in the court of a sister state.87 Thus, when a court of State A, in probating a will and issuing letters, in a proceeding to which all distributees were parties, expressly found that the testator’s domicile at the time of death was in State A, such adjudication of domicile was held not to bind one subsequently appointed as domiciliary administrator c.t.a. in State B, in which he was liable to be called upon to deal with claims of local creditors and that of the State itself for taxes, he having not been a party to the proceeding in State A. In this situation, it was held, a court of State C, when disposing of local assets claimed by both personal representatives, was free to determine domicile in accordance with the law of State C.88

Similarly, there is no such relation of privity between an executor appointed in one state and an administrator c.t.a. appointed in another state as will make a decree against the latter binding upon the former.89 On the other hand, judicial proceedings in one state, under which inheritance taxes have been paid and the administration upon the estate has been closed, are denied full faith and credit by the action of a probate court in another state in assuming jurisdiction and assessing inheritance taxes against the beneficiaries of the estate, when under the law of the former state the order of the probate court barring all creditors who had failed to bring in their demand from any further claim against the executors was binding upon all.90 What is more important, however, is that the res in such a proceeding, that is, the estate, in order to entitle the judgment to recognition under Article IV, 1, must have been located in the state or legally attached to the person of the decedent. Such a judgment is accordingly valid, generally speaking, to distribute the intangible property of the decedent, though the evidences thereof were actually located elsewhere.91 This is not so, on the other hand, as to tangibles and realty. In order that the judgment of a probate court distributing these be entitled to recognition under the Constitution, they must have been located in the state; as to tangibles and realty outside the state, the decree of the probate court is entirely at the mercy of the lex rei sitae.92 So, the probate of a will in one state, while conclusive in that state, does not displace legal provisions necessary to its validity as a will of real property in other states.93

Adoption Decrees.

That a statute legitimizing children born out of wedlock does not entitle them by the aid of the Full Faith and Credit Clause to share in the property located in another state is not surprising, in view of the general principle (to which there are exceptions) that statutes do not have extraterritorial operation.94 For the same reason, adoption proceedings in one state are not denied full faith and credit by the law of the sister state that excludes children adopted by proceedings in other states from the right to inherit land in the sister state.95

Garnishment Decrees.

Garnishment proceedings combine some of the elements of both an in rem and an in personam action. Suppose that A owes B and B owes C, and that the two former live in a different state from C. A, while on a brief visit to C’s state, is presented with a writ attaching his debt to B and also a summons to appear in court on a named day. The result of the proceedings thus instituted is that a judgment is entered in C’s favor against A to the amount of his indebtedness to B. Subsequently A is sued by B in their home state and offers the judgment, which he has in the meantime paid, in defense. It was argued on behalf of B that A’s debt to him had a situs in their home state and furthermore that C could not have sued B in this same state without formally acquiring a domicile there. Both propositions were, however, rejected by the Court, which held that the judgment in the garnishment proceedings was entitled to full faith and credit as against B’s action.96

Penal Judgments: Types Entitled to Recognition

The Full Faith and Credit Clause has been interpreted in the light of the “incontrovertible maxim” that “the courts of no country execute the penal laws of another.”97 In the leading case of Huntington v. Attrill,98 however, the Court so narrowly defined “penal” in this connection as to make it substantially synonymous with “criminal” and on this basis held a judgment which had been recovered under a state statute making the officers of a corporation who signed and recorded a false certificate of the amount of its capital stock liable for all of its debts to be entitled under Article IV, § 1, to recognition and enforcement in the courts of sister states. Nor, in general, is a judgment for taxes to be denied full faith and credit in state and federal courts merely because it is for taxes. In Nelson v. George,99 in which a prisoner was tried in California and North Carolina and convicted and sentenced in both states for various felonies, the Court determined that the Full Faith and Credit Clause did not require California to enforce a penal judgment handed down by North Carolina; California was free to consider what effect if any it would give to the North Carolina detainer.100 Until the obligation to extradite matured, the Full Faith and Credit Clause did not require California to enforce the North Carolina penal judgment in any way.

Fraud as a Defense to Suits on Foreign Judgments

With regard to whether recognition of a state judgment can be refused by the forum state on other than jurisdictional grounds, there are dicta to the effect that judgments for which extraterritorial operation is demanded under Article IV, § 1 and acts of Congress are “impeachable for manifest fraud.” But unless the fraud affected the jurisdiction of the court, the vast weight of authority is against the proposition. Also, it is universally agreed that a judgment may not be impeached for alleged error or irregularity,101 or as contrary to the public policy of the state where recognition is sought for it under the Full Faith and Credit Clause.102 Previously listed cases indicate, however, that the Court in fact has permitted local policy to determine the merits of a judgment under the pretext of regulating jurisdiction.103 Thus, in Cole v. Cunningham,104 the Court sustained a Massachusetts court in enjoining, in connection with insolvency proceedings instituted in that state, a Massachusetts creditor from continuing in New York courts an action that had been commenced there before the insolvency suit was brought. This was done on the theory that a party within the jurisdiction of a court may be restrained from doing something in another jurisdiction opposed to principles of equity, it having been shown that the creditor was aware of the debtor’s embarrassed condition when the New York action was instituted. The injunction unquestionably denied full faith and credit and commanded the assent of only five Justices.

Footnotes

3
Mankin v. Chandler, 16 F. Cas. 625, 626 (No. 9030) (C.C.D. Va. 1823). [Back to text]
4
11 U.S. (7 Cr.) 481 (1813). See also Everett v. Everett, 215 U.S. 203 (1909); Insurance Company v. Harris, 97 U.S. 331 (1878). [Back to text]
5
Chap. XI, 1 Stat. 122 (“records and judicial proceedings authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken”). [Back to text]
6
On the same basis, a judgment cannot be impeached either in or out of the state by showing that it was based on a mistake of law. American Express Co. v. Mullins, 212 U.S. 311, 312 (1909). Fauntleroy v. Lum, 210 U.S. 230 (1908); Hartford Life Ins. Co. v. Ibs, 237 U.S. 662 (1915); Hartford Life Ins. Co. v. Barber, 245 U.S. 146 (1917). [Back to text]
7
16 U.S. (3 Wheat.) 234 (1818). [Back to text]
8
38 U.S. (13 Pet.) 312 (1839). See also Townsend v. Jemison, 50 U.S. (9 How.) 407, 413–20 (1850); Bank of Alabama v. Dalton, 50 U.S. (9 How.) 522, 528 (1850); Bacon v. Howard, 61 U.S. (20 How.) 22, 25 (1858); Christmas v. Russell, 72 U.S. (5 Wall.) 290, 301 (1866); Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 292 (1888); Great Western Tel. Co. v. Purdy, 162 U.S. 329 (1896); Wells v. Simonds Abrasive Co., 345 U.S. 514, 516–18 (1953). Subsequently, the Court reconsidered and adhered to the rule of these cases, although the Justices divided with respect to rationales. Sun Oil Co. v. Wortman, 486 U.S. 717 (1988). Acknowledging that in some areas it had treated statutes of limitations as substantive rules, such as in diversity cases to insure uniformity with state law in federal courts, the Court ruled that such rules are procedural for full-faith-and-credit purposes, since “[t]he purpose . . . of the Full Faith and Credit Clause . . . is . . . to delimit spheres of state legislative competence.” Id. at 727. [Back to text]
9
Cole v. Cunningham, 133 U.S. 107, 112 (1890). See also Stacy v. Thrasher, 47 U.S. (6 How.) 44, 61 (1848); Milwaukee County v. White Co., 296 U.S. 268 (1935). [Back to text]
10
Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887); Hanley v. Donoghue, 116 U.S. 1, 3 (1885). See also Green v. Van Buskirk, 74 U.S. (7 Wall.) 139, 140 (1869); Bigelow v. Old Dominion Copper Co., 225 U.S. 111 (1912); Roche v. McDonald, 275 U.S. 449 (1928); Ohio v. Chattanooga Boiler Co., 289 U.S. 439 (1933). [Back to text]
11
Sistare v. Sistare, 218 U.S. 1 (1910). [Back to text]
12
Michigan Trust Co. v. Ferry, 228 U.S. 346 (1913). See also Fall v. Eastin, 215 U.S. 1 (1909). [Back to text]
13
Milwaukee County v. White Co., 296 U.S. 268, 275–276 (1935). [Back to text]
14
Board of Public Works v. Columbia College, 84 U.S. (17 Wall.) 521 (1873); Robertson v. Pickrell, 109 U.S. 608, 610 (1883). [Back to text]
15
Kersh Lake Dist. v. Johnson, 309 U.S. 485 (1940). See also Texas & Pac. Ry. v. Southern Pacific Co., 137 U.S. 48 (1890). [Back to text]
16
National Exchange Bank v. Wiley, 195 U.S. 257, 265 (1904). See also Grover & Baker Machine Co. v. Radcliffe, 137 U.S. 287 (1890). [Back to text]
17
Harding v. Harding, 198 U.S. 317 (1905). [Back to text]
18
16 U.S. (3 Wheat.) 234 (1818). [Back to text]
19
Anglo-American Provision Co. v. Davis Provision Co., 191 U.S. 373 (1903). [Back to text]
20
Fauntleroy v. Lum, 210 U.S. 230 (1908). Justice Holmes, who spoke for the Court in both cases, asserted in his opinion in the latter that the New York statute was “directed to jurisdiction,” the Mississippi statute to “merits,” but four Justices could not grasp the distinction. [Back to text]
21
Kenney v. Supreme Lodge, 252 U.S. 411 (1920), and cases there cited. Holmes again spoke for the Court. See also Cook, The Powers of Congress under the Full Faith and Credit Clause, 28 YALE L.J. 421, 434 (1919). [Back to text]
22
Broderick v. Rosner, 294 U.S. 629 (1935), approved in Hughes v. Fetter, 341 U.S. 609 (1951). [Back to text]
23
Union Nat’l Bank v. Lamb, 337 U.S. 38 (1949); see also Roche v. McDonald, 275 U.S. 449 (1928). [Back to text]
24
Embry v. Palmer, 107 U.S. 3, 13 (1883). [Back to text]
25
Titus v. Wallick, 306 U.S. 282, 291–292 (1939). [Back to text]
26
Morris v. Jones, 329 U.S. 545 (1947). Moreover, there is no apparent reason why Congress, acting on the implications of Marshall’s words in Hampton v. McConnell, 16 U.S. (3 Wheat.) 234 (1818), should not clothe extrastate judgments of any particular type with the full status of domestic judgments of the same type in the several states. Thus, why should not a judgment for alimony be made directly enforceable in sister states instead of merely furnishing the basis of an action in debt? [Back to text]
27
Cooper v. Reynolds, 77 U.S. (10 Wall.) 308 (1870); Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71 (1961). Full faith and credit extends to the issue of the original court’s jurisdiction, when the second court’s inquiry discloses that the question of jurisdiction had been fully and fairly litigated and finally decided in the court which rendered the original judgment. Durfee v. Duke, 375 U.S. 106 (1963); Underwriters Assur. Co. v. North Carolina Life Ins. Ass’n, 455 U.S. 691 (1982). [Back to text]
28
Board of Public Works v. Columbia College, 84 U.S. (17 Wall.) 521, 528 (1873). See also Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291 (1888); Huntington v. At-trill, 146 U.S. 657, 685 (1892); Brown v. Fletcher’s Estate, 210 U.S. 82 (1908); Bigelow v. Old Dominion Copper Co., 225 U.S. 111 (1912); Spokane Inland R.R. v. Whitley, 237 U.S. 487 (1915). However, a denial of credit, founded upon a mere suggestion of want of jurisdiction and unsupported by evidence, violates the clause. See V.L. v. E.L., 577 U.S. ___, No. 15–648, slip op. at 6 (2016) (per curiam) (holding that where a Georgia judgment appeared on its face to have been issued by a court with jurisdiction and there was no established Georgia law to the contrary, the Alabama Supreme Court erred in refusing to grant the Georgia judgment full faith and credit); see also Rogers v. Alabama, 192 U.S. 226, 231 (1904); Wells Fargo & Co. v. Ford, 238 U.S. 503 (1915). [Back to text]
29
Grover & Baker Machine Co. v. Radcliffe, 137 U.S. 287 (1890). See also Galpin v. Page, 85 U.S. (18 Wall.) 350 (1874); Old Wayne Life Ass’n v. McDonough, 204 U.S. 8 (1907); Brown v. Fletcher’s Estate, 210 U.S. 82 (1908). [Back to text]
30
Pennoyer v. Neff, 95 U.S. 714 (1878). See, for a reformulation of this case’s due process foundation, Shaffer v. Heitner, 433 U.S. 186 (1977). [Back to text]
31
Renaud v. Abbot, 116 U.S. 277 (1886); Jaster v. Currie, 198 U.S. 144 (1905); Reynolds v. Stockton, 140 U.S. 254 (1891). [Back to text]
32
Milliken v. Meyer, 311 U.S. 457, 463 (1940). In the pioneer case of D’Arcy v. Ketchum, 52 U.S. (1 How.) 165 (1851), the question presented was whether a judgment rendered by a New York court, under a statute which provided that, when joint debtors were sued and one of them was brought into court on a process, a judgment in favor of the plaintiff would entitle him to execute against all, must be accorded full faith and credit in Louisiana when offered as a basis of an action in debt against a resident of that state who had not been served by process in the New York action. The Court ruled that the original implementing statute, 1 Stat. 122 (1790), did not reach this type of case, and hence the New York judgment was not enforceable in Louisiana against defendant. Had the Louisiana defendant thereafter ventured to New York, however, he could, as the Constitution then stood, have been subjected to the judgment to the same extent as the New York defendant who had been personally served. Subsequently, the disparity between operation of personal judgment in the home state has been eliminated, because of the adoption of the Fourteenth Amendment. In divorce cases, however, it still persists in some measure. See infra. [Back to text]
33
Adam v. Saenger, 303 U.S. 59, 62 (1938). [Back to text]
34
Hancock Nat’l Bank v. Farnum, 176 U.S. 640 (1900). [Back to text]
35
Stacy v. Thrasher, 47 U.S. (6 How.) 44, 58 (1848). [Back to text]
36
Bigelow v. Old Dominion Copper Co., 225 U.S. 111 (1912). [Back to text]
37
59 U.S. (18 How.) 404 (1856). [Back to text]
38
To the same effect is Connecticut Mut. Life Ins. Co. v. Spratley, 172 U.S. 602 (1899). [Back to text]
39
Simon v. Southern Ry., 236 U.S. 115 (1915). [Back to text]
40
Goldey v. Morning News, 156 U.S. 518 (1895); Riverside Mills v. Menefee, 237 U.S. 189 (1915). [Back to text]
41
International Harvester v. Kentucky, 234 U.S. 579 (1914); Riverside Mills v. Menefee, 237 U.S. 189 (1915). [Back to text]
42
International Harvester v. Kentucky, 234 U.S. 579 (1914). [Back to text]
43
Kane v. New Jersey, 242 U.S. 160 (1916); Hess v. Pawloski, 274 U.S. 352 (1927), limited in Wuchter v. Pizzutti, 276 U.S. 13 (1928). [Back to text]
44
85 U.S. (18 Wall.) 457 (1874). [Back to text]
45
1 H. BLACK, A TREATISE ON THE LAW OF JUDGMENTS § 246 (1891). [Back to text]
46
See also Simmons v. Saul, 138 U.S. 439, 448 (1891). In other words, the challenge to jurisdiction is treated as equivalent to the plea nul tiel record, a plea that was recognized even in Mills v. Duryee as available against an attempted invocation of the full faith and credit clause. What is not pointed out by the Court is that it was also assumed in the earlier case that such a plea could always be rebutted by producing a transcript, properly authenticated in accordance with the act of Congress, of the judgment in the original case. See also Brown v. Fletcher’s Estate, 210 U.S. 82 (1908); German Savings Soc’y v. Dormitzer, 192 U.S. 125, 128 (1904); Grover & Baker Machine Co. v. Radcliffe, 137 U.S. 287, 294 (1890). [Back to text]
47
Cheever v. Wilson, 76 U.S. (9 Wall.) 108 (1870). [Back to text]
48
Andrews v. Andrews, 188 U.S. 14 (1903). See also German Savings Soc’y v. Dormitzer, 192 U.S. 125 (1904). [Back to text]
49
181 U.S. 155, 162 (1901). [Back to text]
50
201 U.S. 562 (1906). [Back to text]
51
317 U.S. 287 (1942)325 U.S. 226 (1945). [Back to text]
52
305 U.S. 32 (1938). [Back to text]
53
317 U.S. 287, 298–99 (1942). [Back to text]
54
317 U.S. at 302. [Back to text]
55
317 U.S. at 312, 321, 315. [Back to text]
56
325 U.S. 226, 229 (1945). [Back to text]
57
Bell v. Bell, 181 U.S. 175 (1901); Andrews v. Andrews, 188 U.S. 14 (1903). [Back to text]
58
Strong dissents were filed, which have influenced subsequent holdings. Among these was that of Justice Rutledge, which attacked both the consequences of the decision as well as the concept of jurisdictional domicile on which it was founded: “Unless ‘matrimonial domicil,’ banished in Williams I [by the overruling of Haddock v. Haddock], has returned renamed [‘domicil of origin’] in Williams II, every decree becomes vulnerable in every state. Every divorce, wherever granted . . . may now be reexamined by every other state, upon the same or different evidence, to redetermine the ‘jurisdiction fact,’ always the ultimate conclusion of ‘domicil.’ . . . ” 325 U.S. at 248. “The Constitution does not mention domicil. Nowhere does it posit the powers of the states or the nation upon that amorphous, highly variable common law conception. . . . No legal conception, save possibly ‘jurisdiction’ . . . affords such possibilities for uncertain application. . . . Apart from the necessity for travel, [to effect a change of domicile, the latter] criterion comes down to a purely subjective mental state, related to remaining for a length of time never yet defined with clarity. . . . When what must be proved is a variable, the proof and the conclusion which follows upon it inevitably take on that character. . . . [The majority has] not held that denial of credit will be allowed, only if the evidence [as to the place of domicile] is different or depending in any way upon the character or the weight of the difference. The test is not different evidence. It is evidence, whether the same or different and, if different, without regard to the quality of the difference, from which an opposing set of inferences can be drawn by the trier of fact ‘not unreasonably.’ . . . But [the Court] does not define ‘not unreasonably.’ It vaguely suggests a supervisory function, to be exercised when the denial [of credit] strikes its sensibilities as wrong, by some not stated standard. . . . There will be no ‘weighing’ [of evidence]. There will be only examination for sufficiency, with the limits marked by ‘scintillas’ and the like.” 325 U.S. at 255, 258, 259, 251. No less disposed to prophesy undesirable results from this decision was Justice Black whose dissenting opinion Justice Douglas joined: “[T]oday, as to divorce decrees, [the Full Faith and Credit Clause] . . . has become a nationally disruptive force. . . . [T]he Court has in effect [held] . . . that ‘the full faith and credit clause does not apply to actions for divorce, and that the states alone have the right to determine what effect shall be given to the decrees of other states in this class of cases.’ . . . If the Court is today abandoning that principle . . . that a marriage validly consummated under one state’s laws is valid in every other state [, then a] . . . consequence is to subject people to criminal prosecutions for adultery and bigamy merely because they exercise their constitutional right to pass from a state in which they were validly married on to another state which refuses to recognize their marriage. Such a consequence runs counter to the basic guarantees of our federal union.” 325 U.S. at 264, 265. [Back to text]
59
334 U.S. 343 (1948). [Back to text]
60
334 U.S. 378 (1948). In a dissenting opinion filed in Sherrer v. Sherrer, but applicable also to Coe v. Coe, Justice Frankfurter, with Justice Murphy concurring, asserted his inability to accept the proposition advanced by the majority that “regardless of how overwhelming the evidence may have been that the asserted domicile in the State offering bargain-counter divorces was a sham, the home State of the parties is not permitted to question the matter if the form of a controversy has been gone through.” 334 U.S. at 377. [Back to text]
61
336 U.S. 674 (1949). Of four justices dissenting, Black, Douglas, Rutledge, and Jackson, Justice Jackson alone filed a written opinion. To him the decision was “an example of the manner in which, in the law of domestic relations, ‘confusion now hath made his masterpiece,’ . . . I think that the judgment of the Connecticut court, but for the first Williams case and its progeny, might properly have held that the Rice divorce decree was void for every purpose because it was rendered by a state court which never obtained jurisdiction of the nonresident defendant and which had no power to reach into another state and summon her before it. But if we adhere to the holdings that the Nevada court had power over her for the purpose of blasting her marriage and opening the way to a successor, I do not see the justice of inventing a compensating confusion in the device of divisible divorce by which the parties are half-bound and half-free and which permits Rice to have a wife who cannot become his widow and to leave a widow who was no longer his wife.” Id. at 676, 679–680. [Back to text]
62
Vermont violated the clause in sustaining a collateral attack on a Florida divorce decree, the presumption of Florida’s jurisdiction over the cause and the parties not having been overcome by extrinsic evidence or the record of the case. Cook v. Cook, 342 U.S. 126 (1951). Sherrer and Coe were relied upon. There seems, therefore, to be no doubt of their continued vitality. A Florida divorce decree was also at the bottom of another case in which the daughter of a divorced man by his first wife and his legatee under his will sought to attack his divorce in the New York courts and thereby indirectly his third marriage. The Court held that, because the attack would not have been permitted in Florida under the doctrine of res judicata, it was not permissible under the Full Faith and Credit Clause in New York. On the whole, it appears that the principle of res judicata is slowly winning out against the principle of domicile. Johnson v. Muelberger, 340 U.S. 581 (1951). [Back to text]
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]
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]
83
334 U.S. 541 (1948). [Back to text]
84
350 U.S. 568 (1956). [Back to text]
85
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. 350 U.S. at 575. [Back to text]
86
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, because the wife did not become a domiciliary of New York until after the Nevada decree, she had no pre-divorce rights in New York that the latter was obligated to protect. [Back to text]
87
Tilt v. Kelsey, 207 U.S. 43 (1907); Burbank v. Ernst, 232 U.S. 162 (1914). [Back to text]
88
Riley v. New York Trust Co., 315 U.S. 343 (1942). [Back to text]
89
Brown v. Fletcher’s Estate, 210 U.S. 82, 90 (1908). See also Stacy v. Thrasher, 47 U.S. (6 How.) 44, 58 (1848); McLean v. Meek, 59 U.S. (18 How.) 16, 18 (1856). [Back to text]
90
Tilt v. Kelsey, 207 U.S. 43 (1907). In the case of Borer v. Chapman, 119 U.S. 587, 599 (1887), involving a complicated set of facts, it was held that a judgment in a probate proceeding, which was merely ancillary to proceedings in another State and which ordered the residue of the estate to be assigned to the legatee and discharged the executor from further liability, did not prevent a creditor, who was not a resident of the State in which the ancillary judgment was rendered, from setting up his claim in the state probate court which had the primary administration of the estate. [Back to text]
91
Blodgett v. Silberman, 277 U.S. 1 (1928). [Back to text]
92
Kerr v. Moon, 22 U.S. (9 Wheat.) 565 (1824); McCormick v. Sullivant, 23 U.S. (10 Wheat.) 192 (1825); Clarke v. Clarke, 178 U.S. 186 (1900). The controlling principle of these cases is not confined to proceedings in probate. A court of equity “not having jurisdiction of the res cannot affect it by its decree nor by a deed made by a master in accordance with the decree.” Fall v. Eastin, 215 U.S. 1, 11 (1909). [Back to text]
93
Robertson v. Pickrell, 109 U.S. 608, 611 (1883). See also Darby v. Mayer, 23 U.S. (10 Wheat.) 465 (1825); Gasquet v. Fenner, 247 U.S. 16 (1918). [Back to text]
94
Olmstead v. Olmstead, 216 U.S. 386 (1910). [Back to text]
95
Hood v. McGehee, 237 U.S. 611 (1915). [Back to text]
96
Harris v. Balk, 198 U.S. 215 (1905). See also Chicago, R.I. & P. Ry. v. Sturm, 174 U.S. 710 (1899); King v. Cross, 175 U.S. 396, 399 (1899); Louisville & Nashville Railroad v. Deer, 200 U.S. 176 (1906); Baltimore & Ohio R.R. v. Hostetter, 240 U.S. 620 (1916). Harris itself has not survived the due process reformulation of Shaffer v. Heitner, 433 U.S. 186 (1977). See Rush v. Savchuk, 444 U.S. 320 (1980). [Back to text]
97
The Antelope, 23 U.S. (10 Wheat.) 66, 123 (1825). See also Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888). [Back to text]
98
146 U.S. 657 (1892). See also Dennick v. Railroad Co., 103 U.S. 11 (1881); Moore v. Mitchell, 281 U.S. 18 (1930); Milwaukee County v. White Co., 296 U.S. 268 (1935). [Back to text]
99
399 U.S. 224 (1970). [Back to text]
100
399 U.S. at 229. [Back to text]
101
Christmas v. Russell, 72 U.S. (5 Wall.) 290 (1866); Maxwell v. Stewart, 88 U.S. (21 Wall.) 71 (1875); Hanley v. Donoghue, 116 U.S. 1 (1885); Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888); Simmons v. Saul, 138 U.S. 439 (1891); American Express Co. v. Mullins, 212 U.S. 311 (1909). [Back to text]
102
Fauntleroy v. Lum, 210 U.S. 230 (1908). [Back to text]
103
Anglo-American Prov. Co. v. Davis Prov. Co., 191 U.S. 373 (1903). [Back to text]
104
133 U.S. 107 (1890). [Back to text]