Notwithstanding the obligation to make continuing payments for
maintenance of a wife and children is not, even when fixed by
judicial decree, in the nature of a technical debt, it may, when so
fixed, be estimated on expectancy of life, and the total amount may
sustain a jurisdiction based on amount involved.
Statutory maintenance is assimilated to alimony under § 980 of
the Code of the District of Columbia.
In this case, as the amount due under a judgment of the Supreme
Court of the District of Columbia for support and maintenance at
the rate of $75.00 a month together with amount to accrue due
during expectancy of life of the wife amounts to over $5,000, this
Court has jurisdiction under the Act of February 9, 1893.
The words "every court within the United States," as used in §
905, Rev.Stat., carrying into effect the full faith and credit
clause of the Constitution, include the courts of the District of
The full faith and credit clause of the federal Constitution and
the statutes enacted thereunder do not apply to judgments rendered
by a court having no jurisdiction.
Under the prior decisions of this Court, service of the summons
in a suit for divorce may be by publication if brought in a court
of the matrimonial domicile. Atherton v. Atherton,
181 U. S. 155
Haddock v. Haddock, 201 U. S. 562
The state in which the parties were married, where they resided
after marriage, and where the husband resided until the action for
divorce was brought is the matrimonial domicile, and has
jurisdiction over the absent wife.
A decree of divorce is not valid even when granted by a court of
the matrimonial domicile except on actual notice to the defendant,
or, if a nonresident, by publication according to the law of the
Where the law of the matrimonial domicile permits the affidavit
on which an order of service by publication is granted to be
Page 226 U. S. 552
made on information and belief, the court acquires jurisdiction
and the judgment based thereon is entitled to full faith and credit
in the courts of other states.
This Court is bound to assume, in the absence of any general law
or policy of a state to the contrary being shown, that where the
court adjudges the proceedings to be in accord with proper
practice, such is the case.
Although an affidavit used as a basis for an order of
publication of the summons may be defective in the mode of stating
material facts, if the facts are stated, the judgment, though
voidable on direct attack, is not void on its face and coram
Where the courts of a state have held that a wife may by her
conduct forfeit the right to the support of her husband, and cannot
have alimony on a divorce decreed in his favor, the courts of other
states must give the decree full faith and credit as foreclosing
the right of the wife to have alimony and a bar to a suit for
maintenance in the courts of other states.
35 App.D.C. 14 affirmed.
The facts, which involve the degree of faith and credit to be
given by the courts of the District of Columbia to a judgment of
divorce obtained in Virginia on service of the summons by
publication, are stated in the opinion.
Page 226 U. S. 557
MR. JUSTICE Pitney delivered the opinion of the Court.
This is an appeal from a decree of the Court of Appeals of the
District of Columbia reversing a decree of the Supreme Court of the
District in favor of the wife in a suit for maintenance, brought
under § 980 of the District Code, Act of March 3, 1901, 31 Stat.
1346, c. 854. The bill of complaint was filed July 29, 1907, and
charged the husband with failing and refusing to maintain the
complainant, and with cruel treatment of such character as to
compel her to leave him. Upon the filing of the bill, a subpoena to
answer was issued and returned "not found," whereupon
writs were successively issued
and returned until November 18, 1907, when the husband was served
with process. Meanwhile, and on September 3, 1907, he brought suit
against the wife in the Circuit Court of Loudoun County, Virginia,
for divorce a mensa et thoro
upon the ground that, on June
13, 1907, the wife willfully abandoned his bed and board and
Page 226 U. S. 558
without cause, and that, notwithstanding his repeated entreaties
and endeavors to induce her to return, she had refused to do so. An
order of publication having been made and published, the Virginia
court, on October 19, 1907, made a decree granting to the husband a
divorce a mensa et thoro.
He thereafter, on being served
as already mentioned with process in the wife's suit, filed a plea
setting up the Virginia decree and the proceedings upon which it
was rendered as a bar to her action. This plea was, on hearing,
overruled, the husband being allowed time in which to answer the
bill. He answered, denying the wife's charges of cruelty and
setting up other matters pertaining to the merits, and also averred
that his domicil, as well as the matrimonial domicil of the
parties, was in Loudoun county, Virginia, and again pleaded the
Virginia proceedings and decree as a bar to the wife's suit. The
Supreme Court of the District, upon final hearing, held the
Virginia divorce to be invalid, and made a decree awarding to the
wife custody of an infant child born to the parties during the
pendency of the proceedings and requiring the husband to pay to the
wife $75 per month for the maintenance of herself and the child, to
forthwith pay to her the sum of $500 for counsel fees, and also to
pay the costs of suit to be taxed. From this decree the husband
appealed to the Court of Appeals of the District, which court
reversed the decree and remanded the cause with directions to enter
an order vacating the decree and dismissing the bill. 35 App.D.C.
The present appeal is based upon § 8 of the Act of February 9,
1893, to establish a Court of Appeals for the District of Columbia,
and for other purposes (27 Stat. 436, c. 74), which section gives a
writ of error or appeal to review in this Court any final judgment
or decree of the Court of Appeals "in all causes in which the
matter in dispute, exclusive of costs, shall exceed the sum of five
thousand dollars." Appellee challenges our jurisdiction
Page 226 U. S. 559
on the ground that the matter here in dispute does not exceed
the sum mentioned.
Under the decree of the Supreme Court, the payments of $75 per
month for support of the wife and child were to commence on July
15, 1909. Supposing that decree to be now reinstated by a reversal
of the decree of the Court of Appeals, the installments already
accrued would amount to considerably more than one half of the
jurisdictional amount. The expectancy of life of the parties is
clearly sufficient to make up the balance.
It is true that the obligation to make such payments for
maintenance in the future, even when fixed by judicial decree, is
not in the nature of a technical debt.
Section 980 of the District Code (31 Stat. 1346, c. 854), upon
which the present action is based, enacts:
"Whenever any husband shall fail or refuse to maintain his wife
and minor children, if any, although able so to do, the court, on
application of the wife, may decree that he shall pay her
periodically such sums as would be allowed to her as permanent
alimony in case of divorce for the maintenance of herself and the
minor children committed to her care by the court, and the payment
thereof may be enforced in the same manner as directed in regard to
such permanent alimony."
The matter of permanent alimony is dealt with in §§ 976, 977,
and 978, the latter of which provides:
"After a decree of divorce in any case granting alimony and
providing for the care and custody of children, the case shall
still be considered open for any future orders in those
The statutory maintenance is thus assimilated to alimony, in
that it is subject to be modified from time to time or even cut off
entirely, in the event of a change in the circumstances of the
parties, and it, of course, ceases wholly upon the death of the
husband. See Lynde v. Lynde, 181 U.
; Audubon v. Shufeldt, 181 U.
, 181 U. S. 578
Lynde v. Lynde,
64 N.J.Eq. 736, 751.
Page 226 U. S. 560
Nevertheless, such a decree clearly and finally settles the
obligation of the husband to contribute to the support of the wife
and offspring, and fixes the amount of contributions required for
the present to fulfill that obligation. The future payments are not
in any proper sense contingent or speculative, although they are
subject to be increased, decreased, or even cut off, as just
The statute conferring jurisdiction on this Court, while
requiring that the matter in dispute shall exceed $5,000, does not
require that it shall be of such a nature as to constitute (if the
event be favorable) a technical debt of record. In Smith v.
Whitney, 116 U. S. 167
116 U. S. 173
the matter in dispute was stated to be
"whether the petitioner is subject to a prosecution which may
end in a sentence dismissing him from the service, and depriving
him of a salary as paymaster general during the residue of his term
as such, and as pay inspector afterwards, which, in less than two
years, would exceed the sum of $5,000."
This Court sustained the appellate jurisdiction. That case has
been repeatedly cited upon the present point, Smith v.
Adams, 130 U. S. 167
130 U. S. 175
South Carolina v. Seymour, 153 U.
, 153 U. S. 358
Simon v. House,
46 F. 317, 318; Chesapeake &
Delaware Canal Co. v. Gring,
159 F. 662, 664, and its
authority upholds our jurisdiction in the case before us.
The next question is whether the Court of Appeals was right in
holding that the Supreme Court of the District erred in refusing to
give credit to the Virginia decree.
Art. IV, § 1, of the Constitution declares that
"full faith and credit shall be given in each state to the
public acts, records, and judicial proceedings of every other
state. And the Congress may, by general laws, prescribe the manner
in which such acts, records, and proceedings shall be proved, and
the effect thereof."
By § 905, Rev.Stat., the mode in which such acts, records, and
proceedings are to be proved was prescribed, and it was enacted
Page 226 U. S. 561
"the said records and judicial proceedings, so authenticated,
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 which they are taken."
This latter clause finds its origin in the first act passed by
Congress to carry into effect the constitutional mandate (Act of
May 26, 1790, c. 11, 1 Stat. 122), and, in an early case, it was
held that the words "every court within the United States" include
the courts of the District of Columbia, and require those courts to
give full faith and credit to the judicial proceedings of the
several states when properly authenticated. Mills
7 Cranch 484, 485.
But it is established that the full faith and credit clause, and
the statutes enacted thereunder, do not apply to judgments rendered
by a court having no jurisdiction of the parties or subject matter,
or of the res
in proceedings in rem.
11 How. 165; Thompson
18 Wall. 457; Reynolds v.
Stockton, 140 U. S. 254
Bigelow v. Old Dominion Copper Co., 225 U.
, 225 U. S.
This subject, in its relation to actions for divorce, has been
most exhaustively considered by this Court in two recent cases:
Atherton v. Atherton, 181 U. S. 155
Haddock v. Haddock, 201 U. S. 562
case, the matrimonial domicil was in
Kentucky, which was also the domicil of the husband. The wife left
him there and returned to the home of her mother in the State of
New York. He began suit in Kentucky for a divorce a vinculo
because of her abandonment, which was a cause of
divorce by the laws of Kentucky, and took such proceedings to give
her notice as the laws of that state required, which included
mailing of notice to the post office nearest her residence in New
York. No response or appearance having been made by her, the
Kentucky court proceeded to take evidence and grant to the
Page 226 U. S. 562
an absolute decree of divorce. It was held that this decree was
entitled to full faith and credit in the courts of New York. In the
case, the husband and wife were domiciled in New
York, and the husband left her there, and, after some years,
acquired a domicil in Connecticut, and obtained in that state, and
in accordance with its laws, a judgment of divorce, based upon
constructive, and not actual, service of process on the wife, she
having meanwhile retained her domicil in New York, and having made
no appearance in the action. The wife afterwards sued for divorce
in New York, and obtained personal service in that state upon the
husband. The New York court refused to give credit to the
Connecticut judgment, and this Court held that there was no
violation of the full faith and credit clause in the refusal, and
this because there was not at any time a matrimonial domicil in the
State of Connecticut, and therefore the res
marriage status -- was not within the sweep of the judicial power
of that state.
In the present case, it appears that the parties were married in
the State of Virginia, and had a matrimonial domicil there, and not
in the District of Columbia or elsewhere. The husband had his
actual domicil in that state at all times until and after the
conclusion of the litigation. It is clear, therefore, under the
decision in the Atherton
case and the principles upon
which it rests, that the State of Virginia had jurisdiction over
the marriage relation, and the proper courts of that state could
proceed to adjudicate respecting it upon grounds recognized by the
laws of that state, although the wife had left the jurisdiction and
could not be reached by formal process.
But, in order to make a divorce valid, even when granted by the
courts of the State of the matrimonial domicil, there must be
notice to the defendant, either by service of process, or (if the
defendant be a nonresident) by such publication or other
constructive notice as is required by
Page 226 U. S. 563
the law of the state. Cheely v. Clayton, 110 U.
; Atherton v. Atherton, 181 U.
, 181 U. S.
-172. In Cheely v. Clayton,
notice was published against the defendant without making such
effort as the local law required to serve process upon her within
the state, this Court held, following repeated decisions of the
state court, that the decree of divorce was wholly void for want of
jurisdiction in the court that granted it, and that the liberty
conferred by the local statute upon a defendant on whom
constructive service only had been made, to apply within three
years to set the decree aside, did not make it valid when the
constructive service was so defective.
The Virginia decree now in question is attacked for want of
jurisdiction on the ground that the affidavit used as a basis for
the order of publication was made upon information and belief, and
not upon personal knowledge. It is insisted that the order was
therefore unauthorized, and all proceedings based upon it null and
By § 3250 of the Virginia Code it is provided that, "on
affidavit that a defendant is not a resident of this state . . . ,
an order of publication may be entered against such defendant."
Succeeding sections prescribe the form of the order, the mode of
publication, and the proceedings to be taken when the order has
been thus executed.
The record of the Virginia proceedings shows that, on September
3, 1907, in the clerk's office of the Circuit Court of Loudoun
"the said Charles N. Thompson filed an affidavit setting forth
that the said Jessie E. Thompson was not a resident of the State of
Virginia, said affidavit to be used as basis for an order of
publication against the said Jessie E. Thompson, . . . in the words
and figures following, to-wit:"
" Charles N. Thompson, plaintiff, this day made oath before me
in said office that Jessie E. Thompson, defendant in the suit
aforesaid, is not a resident of the said state, as he is informed
and verily believes. "
Page 226 U. S. 564
This was certified by the clerk of the court, as permitted by
the state practice. The order of publication follows, which, after
setting forth the title of the court, the names of the parties, and
the object of the suit, proceeds thus:
"It appearing from legal evidence that the said defendant is not
a resident of this state, it is ordered that she do appear within
fifteen days after due publication hereof, in the clerk's office of
our said court, and do what is necessary to protect her
There follow certificates of the publication and public posting
of the required notice, and subsequent proceedings resulting in the
final decree, which is to the following effect:
"It appearing that the complainant hath proceeded regularly at
rules to mature this suit against defendant, who is a nonresident
of Virginia, both by personal service of process and by
publication, in the mode prescribed by statute, this case was set
down for hearing and came on this day to be heard on said
proceedings at rules, the bill of complaint, and the depositions of
witnesses regularly taken and returned to the court; on
consideration whereof, the court, being of the opinion that
complainant hath made out his case by legal evidence, doth adjudge,
order, and decree that the prayer of the bill be and the same is
hereby granted; that the complainant, Charles N. Thompson, be and
hereby is granted a divorce a mensa et thoro
defendant, Jessie E. Thompson, and that each of them be, and he and
she are, divested of all marital rights in the other's property.
And it is further ordered that this cause be placed upon the
suspended docket, with leave to the complainant to apply for
further relief whenever he may be advised that he is entitled
we disregard the recital of "personal service of
process," because the service referred to appears to have been made
in the District of Columbia, and whether it was in season to serve
any useful purpose under the Virginia practice is
Page 226 U. S. 565
The record clearly imports a determination by the Virginia court
that the affidavit of nonresidence, although based upon information
and belief, amounted to "legal evidence," and was in conformity
with "the mode prescribed by statute." We are not referred to any
provision of the Virginia Code, nor to any decision of the courts
of that state, that excludes the use of such evidence for such a
purpose. Section 3282 of the Code provides that, "where an
affidavit is required in support of any pleading, it shall be
sufficient if the affiant swear that he believes it to be true."
Under the Code of 1873, c. 148, § 1, which provided for the
issuance of a writ of attachment against nonresident debtors and
"affidavit stating the amount and justice of the claim, that
there is present cause of action therefor, that the defendant or
one of the defendants is not a resident of this state, and that the
affiant believes he has estate or debts due him within the county
or corporation in which the suit is,"
it was held that so much of the affidavit as set forth the
amount and justice of the claim, that there was present cause of
action therefor, and that the defendant was nonresident in the
state, must be absolute, and not made upon information and belief.
Clowser v. Hall,
80 Va. 864. This decision was in 1885,
and thereafter the section relating to foreign attachments was
amended by permitting all of the averments of the affidavit to be
based upon the belief of the plaintiff, his agent or attorney.
Va.Code, § 2959.
We are not able to discover here or elsewhere any general law or
policy of the State of Virginia excluding the use of affidavits
based upon information and belief as the foundation of an order of
publication. In the very decree before us, the Virginia court has
adjudged such an affidavit to be sufficient. We are therefore bound
to assume that the use of such an affidavit is in accord with
proper practice in that state.
Page 226 U. S. 566
But, were it otherwise, it seems well settled that, where the
affidavit used as the basis for an order of publication is
defective not in omitting to state a material fact, but in the mode
of stating it or in the degree of proof, the resulting judgment,
even though erroneous and therefore voidable by direct attack,
cannot be said to be coram non judice,
and therefore void
on its face. Atkins v. Atkins,
9 Neb. 191, 200;
Pettiford v. Zoellner,
45 Mich. 358, 362; Adams v.
98 Mich. 51; Long v. Fife,
45 Kan. 271;
Belmont v. Cornen,
82 N.Y. 256; 7 Encyc. Pl. & Pr.
110; 17 Encyc. Pl. & Pr. 60, 61.
The material fact upon which, according to the laws of that
state, the jurisdiction of the Virginia court depended was the
nonresidence of the defendant. The Code required (§ 3230) that this
fact should appear by affidavit. The affidavit in question set
forth the fact; the circumstance that it was averred on information
and belief affected merely the degree of proof. In the absence of
any local law excluding the use of such an affidavit, the decision
of the state court accepting it as legal evidence must be deemed
sufficient, on collateral attack, to confer jurisdiction in that
court over the subject matter, in accordance with local laws.
This being so, it is clear that the resulting decree is
entitled, under the Act of Congress, to the same faith and credit
that it would have by law or usage in the courts of Virginia. As
the laws of that state provide for a divorce from bed and board for
the cause of desertion, and confer jurisdiction of suits for
divorce upon the circuit courts (Va.Code, §§ 2257-2260, 2264, 2266;
Bailey v. Bailey,
21 Gratt. 43; Carr v. Carr,
Gratt. 168; Latham v. Latham,
30 Gratt. 307), and since
the courts of Virginia hold upon general principles that alimony
has its origin in the legal obligation of the husband to maintain
his wife, and that, although this is her right, she may by her
conduct forfeit it, and where she is the offender, she cannot
Page 226 U. S. 567
have alimony on a divorce decreed in favor of the husband
(Harris v. Harris,
31 Gratt. 13), it is plain that such a
decree forecloses any right of the wife to have alimony or
equivalent maintenance from her husband under the law of
From this it results that the Court of Appeals of the District
of Columbia correctly held that the Virginia decree barred the
wife's action for maintenance in the courts of this District.