While both spouses were domiciled in New York, a wife obtained a
decree of separation and alimony there. Later the husband obtained
a Nevada divorce in a proceeding in which the wife was notified
constructively and entered no appearance. He stopped paying
alimony, and the wife sued in New York for the amount in arrears.
The husband appeared and defended on the ground of the Nevada
divorce. The New York court sustained the validity of the divorce,
but granted the wife judgment for the arrears of alimony. The
highest court of New York affirmed.
Held: the New York judgment did not deny full faith and
credit to the Nevada decree. Pp.
334 U. S.
542-549.
(a) Notwithstanding any earlier holdings in New York to the
contrary, the holding of the highest court of New York that the
award of alimony survived the divorce under New York law, is
binding on this Court -- unless it conflicts with the Full Faith
and Credit Clause. P.
334 U. S.
544.
(b) The fact that the marital capacity was changed does not mean
that every other legal incidence of the marriage was necessarily
affected. Pp.
334 U. S.
544-545.
(c) That the requirements of full faith and credit are exacting,
so far as judgments are concerned, does not mean that the state of
the domicile of one spouse may, through the use of constructive
service, enter a decree that changes every legal incidence of the
marriage relationship. Pp.
334 U. S. 545-546.
(d) Nevada could not adjudicate rights of the wife under the New
York judgment when she was not personally served and did not appear
in the Nevada proceeding. Pp.
334 U. S.
546-549.
(e) Since Nevada had no power to adjudicate the wife's rights in
the New York judgment, New York need not give full faith and credit
to that phase of Nevada's judgment. P.
334 U. S.
549.
296 N.Y. 308, 73 N.E.2d 113, affirmed.
Notwithstanding a divorce obtained by a husband in Nevada, a New
York court gave the wife a judgment for arrears of alimony awarded
under an earlier decree
Page 334 U. S. 542
granted while both spouses were domiciled in New York. 63
N.Y.S.2d 476. The Appellate Division and the Court of Appeals
affirmed. 271 App.Div. 829, 66 N.Y.S.2d 421; 296 N.Y. 308, 73
N.E.2d 113. This Court granted certiorari. 332 U.S. 840.
Affirmed, p.
334 U. S.
549.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case, here on certiorari to the Court of Appeals of New
York, presents an important question under the Full Faith and
Credit Clause of the Constitution. [
Footnote 1] Article IV, § 1. It is whether a New York
decree awarding respondent $180 per month for her maintenance and
support in a separation proceeding survived a Nevada divorce decree
which subsequently was granted petitioner.
The parties were married in 1937, and lived together in New York
until 1942, when the husband left the wife. There was no issue of
the marriage. In 1943, she brought an action against him for a
separation. He entered a general appearance. The court, finding
that he had abandoned her, granted her a decree of separation and
awarded
Page 334 U. S. 543
her $180 per month as permanent alimony. In January, 1944, he
went to Nevada, where, in 1945, he instituted an action for
divorce. She was notified of the action by constructive service,
but entered no appearance in it. In May, 1945, the Nevada court,
finding that petitioner had been a
bona fide resident of
Nevada since January 30, 1944, granted him an absolute divorce "on
the ground of three years continual separation, without
cohabitation." The Nevada decree made no provision for alimony,
though the Nevada court had been advised of the New York
decree.
Prior to that time, petitioner had made payments of alimony
under the New York decree. After entry of the Nevada decree, he
ceased paying. Thereupon, respondent sued in New York for a
supplementary judgment for the amount of the arrears. Petitioner
appeared in the action and moved to eliminate the alimony
provisions of the separation decree by reason of the Nevada decree.
The Supreme Court denied the motion and granted respondent judgment
for the arrears. 63 N.Y.S.2d 476. The judgment was affirmed by the
Appellate Division, 271 App.Div. 829, 66 N.Y.S.2d 421, and then by
the Court of Appeals. 296 N.Y. 308, 73 N.E.2d 113.
We held in
Williams v. North Carolina, 317 U.
S. 287;
325 U. S. 325 U.S.
226, (1) that a divorce decree granted by a State to one of its
domiciliaries is entitled to full faith and credit in a bigamy
prosecution brought in another State, even though the other spouse
was given notice of the divorce proceeding only through
constructive service, and (2) that, while the finding of domicile
by the court that granted the decree is entitled to
prima
facie weight, it is not conclusive in a sister State, but
might be relitigated there.
And see Esenwein v.
Pennsylvania, 325 U. S. 279. The
latter course was followed in this case, as a consequence of which
the Supreme Court of New York found, in accord with the Nevada
court, that petitioner
Page 334 U. S. 544
"is now and since January, 1944, has been a
bona fide
resident of the Nevada."
Petitioner's argument, therefore, is that the tail must go with
the hide -- that, since by the Nevada decree, recognized in New
York, he and respondent are no longer husband and wife, no legal
incidence of the marriage remains. We are given a detailed analysis
of New York law to show that the New York courts have no power,
either by statute or by common law, to compel a man to support his
ex-wife, that alimony is payable only so long as the relation of
husband and wife exists, and that in New York, as in some other
states,
see Esenwein v. Pennsylvania, supra, p.
325 U. S. 280,
a support order does not survive divorce.
The difficulty with that argument is that the highest court in
New York has held in this case that a support order can survive
divorce, and that this one has survived petitioner's divorce. That
conclusion is binding on us except as it conflicts with the Full
Faith and Credit Clause. It is not for us to say whether that
ruling squares with what the New York courts said on earlier
occasions. It is enough that New York today says that such is her
policy. The only question for us is whether New York is powerless
to make such a ruling in view of the Nevada decree.
We can put to one side the case where the wife was personally
served or where she appears in the divorce proceedings.
Cf.
Yarborough v. Yarborough, 290 U. S. 202;
Davis v. Davis, 305 U. S. 32;
Sherrer v. Sherrer, ante, p.
334 U. S. 343;
Coe v. Coe, ante, p.
334 U. S. 378. The
only service on her in this case was by publication, and she made
no appearance in the Nevada proceeding. The requirements of
procedural due process were satisfied, and the domicile of the
husband in Nevada was foundation for a decree effecting a change in
the marital capacity of both parties in all the other States of the
Union, as well as in Nevada.
Page 334 U. S. 545
Williams v. North Carolina, 317 U.
S. 287. But the fact that marital capacity was changed
does not mean that every other legal incidence of the marriage was
necessarily affected.
Although the point was not adjudicated in
Barber v.
Barber, 21 How. 582,
62 U. S. 588,
the Court in that case recognized that, while a divorce decree
obtained in Wisconsin by a husband from his absent wife might
dissolve the vinculum of the marriage, it did not mean that he was
freed from payment of alimony under an earlier separation decree
granted by New York. An absolutist might quarrel with the result
and demand a rule that, once a divorce is granted, the whole of the
marriage relation is dissolved, leaving no roots or tendrils of any
kind. But there are few areas of the law in black and white. The
greys are dominant, and, even among them, the shades are
innumerable. For the eternal problem of the law is one of making
accommodations between conflicting interests. This is why most
legal problems end as questions of degree. That is true of the
present problem under the Full Faith and Credit Clause. [
Footnote 2] The question involves
important considerations both of law and of policy which it is
essential to state.
The situations where a judgment of one State has been denied
full faith and credit in another State, because its enforcement
would contravene the latter's policy, have been few and far
between.
See Williams v. North Carolina, 317 U.
S. 287,
317 U. S.
294-295;
Magnolia Petroleum Co. v. Hunt,
320 U. S. 430,
320 U. S.
438-439, and cases cited;
Sherrer v. Sherrer,
supra. The Full Faith and Credit Clause is not
Page 334 U. S. 546
to be applied, accordion-like, to accommodate our personal
predilections. It substituted a command for the earlier principles
of comity, and thus basically altered the status of the States as
independent sovereigns.
Williams v. North Carolina,
317 U. S. 287,
317 U. S.
301-302;
Sherrer v. Sherrer, supra. It ordered
submission by one State even to hostile policies reflected in the
judgment of another State because the practical operation of the
federal system, which the Constitution designed, demanded it. The
fact that the requirements of full faith and credit, so far as
judgments are concerned, [
Footnote
3] are exacting, if not inexorable (
Sherrer v. Sherrer,
supra), does not mean, however, that the the domicile of one
spouse may, through the use of constructive service, enter a decree
that changes every legal incidence of the marriage relationship.
[
Footnote 4]
Marital status involves the regularity and integrity of the
marriage relation. It affects the legitimacy of the offspring of
marriage. It is the basis of criminal laws, as the bigamy
prosecution in
Williams v. North Carolina dramatically
illustrates. The State has a considerable interest in preventing
bigamous marriages and in protecting the offspring of marriages
from being bastardized. The interest of the State extends to its
domiciliaries. The State should have the power to guard its
interest in them by changing or altering their marital status and
by protecting them in that changed status throughout the farthest
reaches of the nation. For a person domiciled in one State should
not be allowed to suffer the penalties of
Page 334 U. S. 547
bigamy for living outside the State with the only one which the
his domicile recognizes as his lawful wife. And children born of
the only marriage which is lawful in the his domicile should not
carry the stigma of bastardy when they move elsewhere. These are
matters of legitimate concern to the the domicile. They entitle the
the domicile to bring in the absent spouse through constructive
service. In no other way could the the domicile have and maintain
effective control of the marital status of its domiciliaries.
Those are the considerations that have long permitted the the
matrimonial domicile to change the marital status of the parties by
an
ex parte divorce proceeding,
Thompson v.
Thompson, 226 U. S. 551,
considerations which, in the
Williams cases, we thought
were equally applicable to any State in which one spouse had
established a
bona fide domicile.
See 317 U.S.
pp.
317 U. S.
300-301. But those considerations have little relevancy
here. In this case, New York evinced a concern with this broken
marriage when both parties were domiciled in New York and before
Nevada had any concern with it. New York was rightly concerned lest
the abandoned spouse be left impoverished, and perhaps become a
public charge. The problem of her livelihood and support is plainly
a matter in which her community had a legitimate interest. The New
York court, having jurisdiction over both parties, undertook to
protect her by granting her a judgment of permanent alimony.
Nevada, however, apparently follows the rule that dissolution of
the marriage puts and end to a support order.
See Herrick v.
Herrick, 55 Nev. 59, 68, 25 P.2d 378, 380. But the question is
whether Nevada could, under any circumstances, adjudicate rights of
respondent under the New York judgment when she was not personally
served or did not appear in the proceeding.
Page 334 U. S. 548
Bassett v. Bassett, 141 F.2d 954, held that Nevada
could not. [
Footnote 5] We
agree with that view.
The New York judgment is a property interest of respondent,
created by New York in a proceeding in which both parties were
present. It imposed obligations on petitioner and granted rights to
respondent. The property interest which it created was an
intangible, jurisdiction over which cannot be exerted through
control over a physical thing. Jurisdiction over an intangible can
indeed only arise from control or power over the persons whose
relationships are the source of the rights and obligations.
Cf.
Curry v. McCanless, 307 U. S. 357,
307 U. S.
366.
Jurisdiction over a debtor is sufficient to give the his
domicile some control over the debt which he owes. It can, for
example, levy a tax on its transfer by will (
Blackstone v.
Miller, 188 U. S. 189;
State Tax Comm'n v. Aldrich, 316 U.
S. 174,
316 U. S.
176-177) appropriate it through garnishment or
attachment (
Chicago, R.I. & P. R. Co. v. Sturm,
174 U. S. 710;
see Harris v. Balk, 198 U. S. 215),
collect it and administer it for the benefit of creditors.
Clark v. Williard, 294 U. S. 211;
Fischer v. American United Ins. Co., 314 U.
S. 549,
314 U. S. 553.
But we are aware of no power which the domicile of the debtor has
to determine the personal rights of the creditor in the intangible
unless the creditor has been personally served or appears in the
proceeding. The existence of any such power has been repeatedly
denied.
Pennoyer v. Neff, 95 U. S.
714;
Hart v. Sansom, 110 U.
S. 151;
New York Life Ins. Co. v. Dunlevy,
241 U. S. 518.
We know of no source of power which would take the present case
out of that category. The Nevada decree that is said to wipe out
respondent's claim for alimony under the New York judgment is
nothing less than an attempt by Nevada to restrain respondent from
asserting
Page 334 U. S. 549
her claim under that judgment. That is an attempt to exercise an
in personam jurisdiction over a person not before the
court. That may not be done. Since Nevada had no power to
adjudicate respondent's rights in the New York judgment, New York
need not give full faith and credit to that phase of Nevada's
judgment. A judgment of a court having no jurisdiction to render it
is not entitled to the full faith and credit which the Constitution
and statute of the United States demand.
Hansberry v. Lee,
311 U. S. 32,
311 U. S. 40-41;
Williams v. North Carolina, 325 U.
S. 226,
325 U. S. 229,
and cases cited.
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. It
accommodates the interests of both Nevada and New York in this
broken marriage by restricting each State to the matters of her
dominant concern.
Since Nevada had no jurisdiction to alter respondent's rights in
the New York judgment, we do not reach the further question
whether, in any event, that judgment would be entitled to full
faith and credit in Nevada.
See Sistare v. Sistare,
218 U. S. 1;
Barber v. Barber, 323 U. S. 77;
Griffin v. Griffin, 327 U. S. 220. And
it will be time enough to consider the effect of any discrimination
shown to out-of-state
ex parte divorces when a State makes
that its policy.
Affirmed.
[
Footnote 1]
That clause directs that "Full Faith and Credit shall be given
in each State to the public Acts, Records, and judicial Proceedings
of every other State," and provides that "Congress may by general
Laws prescribe the Manner in which such Acts, Records, and
Proceedings, shall be proved, and the Effect thereof." By the Act
of May 26, 1790, c. 11, 1 Stat. 122, as amended, 28 U.S.C. § 687,
Congress provided that the "records and judicial proceedings" of
the courts of any State
"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."
[
Footnote 2]
See Bingham,
In the Matter of Haddock v.
Haddock, 21 Corn.L.Quart. 393; Radin, The Authenticated Full
Faith and Credit Clause, 39 Ill.L.Rev. 1; Holt, The Bones of
Haddock v. Haddock, 41 Mich.L.Rev. 1013, 1034; Barnhard,
Haddock Reversed -- Harbinger of the Divisible Divorce, 31
Geo.L.J. 210; Cook, Is
Haddock v. Haddock Overruled, 18
Ind.L.J. 165.
[
Footnote 3]
As respects statutes,
see the discussion in
Williams v. North Carolina, 317 U.
S. 287,
317 U. S.
295-296.
[
Footnote 4]
The case is unlike
Thompson v. Thompson, 226 U.
S. 551, where the wife by her conduct forfeited her
right to alimony under the laws of the the matrimonial domicile
where her husband obtained the divorce, and hence could not retain
a judgment for maintenance subsequently obtained in another
jurisdiction.
[
Footnote 5]
And see Miller v. Miller, 200 Iowa 1193, 206 N.W.
262.
MR. JUSTICE FRANKFURTER, dissenting.
The Court's opinion appears to rest on three independent
grounds:
(1) New York may, consistently with the Full Faith and Credit
Clause, hold that a prior separate maintenance decree of one of its
courts survives a decree of divorce within the scope of
enforceability of the rule in
Williams
Page 334 U. S. 550
v. North Carolina, 317 U. S. 287,
whether such divorce is granted in New York or by a sister
State;
(2) By virtue of its interest in preventing its citizens from
becoming public charges, New York may constitutionally provide that
a domestic separate maintenance decree survives a sister-State
divorce decree which must be respected in New York under the rule
in the first
Williams case,
supra;
(3) A separate maintenance decree creates an obligation which
may not, consistently with due process, be extinguished by a court
lacking personal jurisdiction of the obligee, though possessed of
jurisdiction to terminate her marital status, and any judgment
purporting to do so is not entitled to extra-State recognition.
To the first of these grounds I assent, and, if such is the law
of New York, I agree that the decision of the New York Court of
Appeals in this case must be upheld. It is for New York to decide
whether its decrees for separate maintenance survive divorce or
terminate with it, provided, of course, that its decision is not a
mere attempt to defeat a federal right, given by the Full Faith and
Credit Clause, under the guise of a determination of State law.
Cf. Davis v. Wechsler, 263 U. S. 22,
263 U. S.
24-25.
The second ground presents difficulties. I cannot agree that New
York's interest in its residents would justify New York in giving
less effect to an enforceable Nevada divorce granted to one
domiciled in Nevada, against a spouse not personally served, than
it would give to a valid New York divorce similarly obtained. As to
this, I agree with the views of by brother JACKSON. If, on the
other hand, New York does not so discriminate against enforceable
"
ex parte" divorce decrees granted by a sister State, no
problem under the Full Faith and Credit Clause arises.
Page 334 U. S. 551
Furthermore, if the respondent had obtained her separate
maintenance decree in Pennsylvania -- which treats such decrees as
terminated by any valid divorce,
see Esenwein v.
Commonwealth, 325 U. S. 279 --
and had subsequently moved to New York and there brought a suit
based on the Pennsylvania decree, it is clear that New York's
interest in preventing the respondent from becoming a public charge
would not justify refusal to treat the separate maintenance decree
as having been terminated. New York would be required to refer to
the law of Pennsylvania to determine whether the maintenance decree
of that Commonwealth had survived the Nevada divorce, and, finding
that it had not, the New York courts could not enforce it.
My difficulty with the third ground of the Court's opinion is
that Nevada did not purport, so far as the record discloses, to
rule on the survival of the New York separate maintenance decree.
Nevada merely established a change in status. It was for New York
to determine the effect, with reference to its own law, of that
change in status. If it was the law of New York that divorce put an
end to its separate maintenance decree, the respondent's decree
would have been terminated not by the Nevada divorce, but by the
consequences, under the New York law, of a change in status, even
though brought about by Nevada. Similarly, Nevada could not
adjudicate rights in New York realty, but, if New York law provided
for dower, a Nevada divorce might or might not terminate a dower
interest in New York realty depending on whether or not New York
treated dower rights as extinguished by divorce.
If the Nevada decree, insofar as it affected the New York
separate maintenance decree, were violative of due process, New
York, of course, would not have to give effect to it. It could not
do so even if it wished. If the Nevada
Page 334 U. S. 552
decree involved a violation of due process, there is an end of
the matter, and other complicated issues need not be considered! It
would not matter whether New York had a special interest in
preventing its residents from becoming public charges, or whether
New York treated maintenance decrees as surviving a valid
divorce.
Accordingly, the crucial issue, as I see it, is whether New York
has held that no "
ex parte" divorce decree could terminate
a prior New York separate maintenance decree, or whether it has
decided merely that no "
ex parte" divorce decree of
another State could. The opinion of the Court of Appeals leaves
this crucial issue in doubt. The prior decisions of the New York
courts do not dispel my doubts. Neither do the cases cited in the
Court of Appeals' opinion, which, with the exception of
Wagster
v. Wagster, 193 Ark. 902, 103 S.W.2d 638, do not involve
"
ex parte" domestic divorces. New York may legitimately
decline to allow any "
ex parte" divorce to dissolve its
prior separate maintenance decree, but it may not, consistently
with
Williams v. North Carolina, 317 U.
S. 287, discriminate against a Nevada decree granted to
one there domiciled, and afford it less effect than it gives to a
decree of its own with similar jurisdictional foundation. I cannot
be sure which it has done.
I am reinforced in these views by MR. JUSTICE JACKSON's dissent.
As a New York lawyer and the Justice assigned to the Second
Circuit, he is presumably not without knowledge of New York law.
The Court's opinion is written in a spirit of certitude that the
New York law is contrary to that which MR. JUSTICE JACKSON assumes
it to be. Thus, on the issue that I deem decisive of the question
whether New York has given full faith and credit to the Nevada
decree -- namely, whether under New York's law divorce decrees
based on publication terminate support -- her law has thus far not
spoken with ascertainable clarity. I would therefore remand the
case to the New York Court of Appeals for clarification of its
Page 334 U. S. 553
rationale.
". . . It is . . . important that ambiguous or obscure
adjudications by state courts do not stand as barriers to a
determination by this Court of the validity under the federal
constitution of state action. Intelligent exercise of our appellate
powers compels us to ask for the elimination of the obscurities and
ambiguities from the opinions in such cases."
Minnesota v. National Tea Co., 309 U.
S. 551,
309 U. S.
557.
MR. JUSTICE JACKSON, dissenting.
If there is one thing that the people are entitled to expect
from their lawmakers, it is rules of law that will enable
individuals to tell whether they are married and, if so, to whom.
Today, many people who have simply lived in more than one state do
not know, and the most learned lawyer cannot advise them with any
confidence. The uncertainties that result are not merely technical,
nor are they trivial; they affect fundamental rights and relations
such as the lawfulness of their cohabitation, their children's
legitimacy, their title to property, and even whether they are
law-abiding persons or criminals. In a society as mobile and
nomadic as ours, such uncertainties affect large numbers of people
and create a social problem of some magnitude. It is therefore
important that, whatever we do, we shall not add to the confusion.
I think that this decision does just that.
These parties lived together in New York State during their
entire married life. Courts of that State granted judgment of
separation, with award of alimony to the wife, in October, 1943.
Three months later, the husband journeyed to Nevada, and, in three
more months, began a divorce action. No process was served on the
wife in Nevada; she was put on notice only by constructive service
through publication in New York. Notified thus of what was going
on, she was put to this choice: to go to Nevada and fight a battle,
hopeless under Nevada laws, to keep her New York judgment, or to do
nothing. She
Page 334 U. S. 554
did nothing, and the Nevada court granted the husband a divorce
without requiring payment of alimony.
Now the question is whether the New York judgment of separation
or the Nevada judgment of divorce controls the present obligation
to pay alimony. The New York judgment of separation is based on the
premise that the parties remain husband and wife, though estranged,
and hence the obligation of support, incident to marriage,
continues. The Nevada decree is based on the contrary premise that
the marriage no longer exists, and so obligations dependent on it
have ceased.
The Court reaches the Solomon-like conclusion that the Nevada
decree is half good and half bad under the full faith and credit
clause. It is good to free the husband from the marriage; it is not
good to free him from its incidental obligations. Assuming the
judgment to be one which the Constitution requires to be recognized
at all, I do not see how we can square this decision with the
command that it be given full faith and credit. For reasons which I
stated in dissenting in
Williams v. North Carolina,
317 U. S. 287, I
would not give standing under the clause to constructive service
divorces obtained on short residence. But if we are to hold this
divorce good, I do not see how it can be less good than a divorce
would be if rendered by the courts of New York.
As I understand New York law, if, after a decree of separation
and alimony, the husband had obtained a New York divorce against
his wife, it would terminate her right to alimony. If the Nevada
judgment is to have full faith and credit, I think it must have the
same effect that a similar New York decree would have. I do not see
how we can hold that it must be accepted for some purposes and not
for others, that he is free of his former marriage, but still may
be jailed, as he may in New York, for not paying the maintenance of
a woman whom the Court is compelled to consider as no longer his
wife.