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ARTICLE IV
STATES’ RELATIONS
CONTENTS
Section 2. Interstate Comity—Continued
- Section 1. Full Faith and Credit Page
- Sources and Effect of This Provision
- Private International Law
- Judgments: Effect to Be Given in Forum State
- In General
- Jurisdiction: A Prerequisite to Enforcement of Judgments
- Judgments in Personam
- Service on Foreign Corporations
- Service on Nonresident Motor Vehicle Owners
- Judgments in Rem
- Divorce Decrees: Domicile as the Jurisdictional Prerequisite
- Divorce Suit: In Rem or in Personam; Judicial Indecision
- Williams I and Williams II
- Cases Following Williams II
- Claims for Alimony or Property in Forum State
- Decrees Awarding Alimony, Custody of Children
- Status of the Law
- Other Types of Decrees
- Probate Decrees
- Adoption Decrees
- Garnishment Decrees
- Penal Judgments: Types Entitled to Recognition
- Fraud as a Defense to Suits on Foreign Judgments
- Recognition of Rights Based Upon Constitutions, Statutes, Common Law
- Development of the Modern Rule
- Transitory Actions: Death Statutes
- Actions Upon Contract
- Stockholder Corporation Relationship
- Fraternal Benefit Society: Member Relationship
- Insurance Company, Building and Loan Association: Contractual Relationship
- Workmen’s Compensation Statutes
- Full Faith and Credit and Statutes of Limitation
- Full Faith and Credit: Miscellany
- Full Faith and Credit in Federal Court
- Evaluation of Results Under Provision
- Scope of Powers of Congress Under Provision
- Judgments of Foreign States
- Section 2. Interstate Comity
- Clause 1. State Citizenship: Privileges and Immunities
- Origin and Purpose
- How Implemented
- Citizens of Each State
- All Privileges and Immunities of Citizens in the Several States Clause 1. State Citizenship: Privileges and Immunities—Continued
- Discrimination in Private Rights
- Access to Courts
- Taxation
- Clause 2. Interstate Rendition
- Duty to Surrender Fugitives from Justice
- Fugitive from Justice: Defined
- Procedure for Removal
- Trial of Fugitives After Removal
- Clause 3. Fugitives from Labor
- Section 3. Admission of New States to Union; Property of United States
- Clause 1. Admission of New States to Union
- Doctrine of the Equality of States
- Judicial Proceedings Pending on Admission of New States
- Property Rights of States to Soil Under Navigable Waters
- Clause 2. Property of the United States
- Property and Territory: Powers of Congress
- Methods of Disposing Thereof
- Public Lands: Federal and State Powers Thereover
- Territories: Powers of Congress Thereover
- Section 4. Obligations of United States to States
- Guarantee of Republican Form of Government
Sec. 1—Full Faith and Credit: Judicial Proceedings
(^2) Congressional legislation under the full faith and credit clause, so far as it is pertinent to adjudication hereunder, is today embraced in 28 U.S.C. §§ 1738–1739. See also 28 U.S.C. §§ 1740–1742. (^3) Mankin v. Chandler, 16 Fed Cas. 625, 626 (No. 9030) (C.C.D. Va. 1823).
ments of the courts of one country shall receive from those of an- other country. So even had the States of the Union remained in a mutual re- lationship of entire independence, private claims originating in one often would have been assured recognition and enforcement in the others. The Framers felt, however, that the rules of private inter- national law should not be left among the States altogether on a basis of comity and hence subject always to the overruling local policy of the lex fori but ought to be in some measure at least placed on the higher plane of constitutional obligation. In fulfill- ment of this intent the section now under consideration was in- serted, and Congress was empowered to enact supplementary and enforcing legislation. 2
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 prin- cipal classes of judgments. First, those in which the judgment in- volved was offered as a basis of proceedings for its own enforce- ment 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
Sec. 1—Full Faith and Credit: Judicial Proceedings
(^4) 7 Cr. (11 U.S.) 481 (1813). See also Everett v. Everett, 215 U.S. 203 (1909); Insurance Company v. Harris, 97 U.S. 331 (1878). (^5) 1 Stat. 122. (^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). (^7) 3 Wheat. (16 U.S.) 234 (1818). (^8) 13 Pet. (38 U.S.) 312 (1839). See also Townsend v. Jemison, 9 How. (50 U.S.) 407, 413–420 (1850); Bank of Alabama v. Dalton, 9 How. (50 U.S.) 522, 528 (1850); Bacon v. Howard, 20 How. (61 U.S.) 22, 25 (1858); Christmas v. Russell, 5 Wall. (72 U.S.) 290, 301 (1866); Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 292 (1888); Great Western Telegraph Co. v. Purdy, 162 U.S. 329 (1896); Wells v. Simonds Abra- sive Co., 345 U.S. 514, 516–518 (1953). Recently, the Court reconsidered and ad- hered to the rule of these cases, although the Justices divided with respect to ration- ales. 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., 727.
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 1790 5 that such records and proceedings were entitled in each State to the same faith and credit as in the State of origin, and that inasmuch as they were records of a court in the State of ori- gin, and so conclusive of the merits of the case there, they were equally so in the forum State. The Court adopted the latter view, saying that it had not been the intention of the Constitution merely to reenact the common law—that is, the principles of private inter- national law—with regard to the reception of foreign judgments but to amplify and fortify these. 6 And in Hampton v. McConnell , 7 some years later, Chief Justice Marshall went even further, using lan- guage which 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 evi- dence but the validity of final judgment. When, however, the next important case arose, the Court had come under new influences. This 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 Caro- lina. Declining to follow Marshall’s lead in Hampton v. McConnell ,
Sec. 1—Full Faith and Credit: Judicial Proceedings
(^13) Milwaukee County v. White Co., 296 U.S. 268, 275–276 (1935). (^14) Board of Public Works v. Columbia College, 17 Wall. (84 U.S.) 521 (1873); Robertson v. Pickrell, 109 U.S. 608, 610 (1883). (^15) Kersh Lake Dist. v. Johnson, 309 U.S. 485 (1940). See also Texas & Pac. Ry. Co. v. Southern Pacific Co., 137 U.S. 48 (1890). (^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). (^17) Harding v. Harding, 198 U.S. 317 (1905). (^18) 3 Wheat. (16 U.S.) 234 (1818). (^19) Anglo-Am. Prov. Co. v. Davis Prov. Co., No. 1, 191 U.S. 373 (1903). (^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
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 judg- ment 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 which landowners might plead, a state court may refuse to accept the former’s judg- ment as determinative of the landowners’ liabilities. 15 Similarly, though a confession of judgment upon a note, with a warrant of at- torney 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 de- cree in invitum , must be given the same effect in the courts of an- other State. 17 Subsequent to its departure from Hampton v. McConnell , 18 the Court does not appear to have formulated, by way of substitution, 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 sis- ter State. Thus, in one case it held that a New York statute forbid- ding 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 citi- zens. 20
Sec. 1—Full Faith and Credit: Judicial Proceedings
was ‘‘directed to jurisdiction,’’ the Mississippi statute to ‘‘merits,’’ but four Justices could not grasp the distinction. (^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). (^22) Broderick v. Rosner, 294 U.S. 629 (1935), approved in Hughes v. Fetter, 341 U.S. 609 (1951). (^23) Union National Bank v. Lamb, 337 U.S. 38 (1949); see also Roche v. McDon- ald, 275 U.S. 449 (1928). (^24) Embry v. Palmer, 107 U.S. 3, 13 (1883). (^25) Titus v. Wallick, 306 U.S. 282, 291–292 (1939). (^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. McCon- nell, 3 Wheat. (16 U.S.) 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 en- forceable in sister States instead of merely furnishing the basis of an action in debt?
Following the later rather than the earlier precedent, subse- quent cases 21 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, which 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 rea- sons assigned for granting the restraining order were passed upon on a motion for new trial in the action at law and the motion de- nied; 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, inasmuch as a State cannot, by the adoption of a particular rule of liability or of procedure, exclude from its courts a suit on a judg- ment; 25 and (5) that, similarly, tort claimants in State A, who ob- tain a judgment against a foreign insurance company, notwith- standing that, prior to judgment, domiciliary State B appointed a liquidator for the company, vested company assets in him, and or- dered 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 prior- ity, if any, their claim should have. 26
Sec. 1—Full Faith and Credit: Judicial Proceedings
(^32) Milliken v. Meyer, 311 U.S. 457, 463 (1940). In the pioneer case of D’Arcy v. Ketchum, 1 How. (52 U.S.) 165 (1851), the question presented was whether a judg- ment 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 judg- ment in favor of the plaintiff would entitle him to execute against all, must be ac- corded 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. (^33) Adam v. Saenger, 303 U.S. 59, 62 (1938). (^34) Hancock Nat. Bank v. Farnum, 176 U.S. 640 (1900). (^35) Stacy v. Thrasher, 6 How. (47 U.S.) 44, 58 (1848). (^36) Bigelow v. Old Dominion Copper Co., 225 U.S. 111 (1912). (^37) 18 How. (59 U.S.) 404 (1856).
ute thereof providing for the service of process on absent defend- ants, 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 Inasmuch as the principle of res judicata applies only to pro- ceedings between the same parties and privies, the plea by defend- ant in an action based on a judgment that he was not party or privy to the original action raises the question of jurisdiction; while 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 administra- tion in one State stands in no sort of relation of privity to an ad- ministrator 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 enti- tled 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. Here it was 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
Sec. 1—Full Faith and Credit: Judicial Proceedings
(^38) To the same effect is Connecticut Mutual Life Ins. Co. v. Spratley, 172 U.S. 602 (1899). (^39) Simon v. Southern Railway, 236 U.S. 115 (1915). (^40) Goldey v. Morning News, 156 U.S. 518 (1895); Riverside Mills v. Menfee, 237 U.S. 189 (1915). (^41) International Harvester v. Kentucky, 234 U.S. 579 (1914). Riverside Mills v. Menefee, 237 U.S. 189 (1915). (^42) International Harvester v. Kentucky, 234 U.S. 579 (1914). (^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). (^44) 18 Wall. (85 U.S.) 457 (1874).
faith and credit as it was entitled to in Ohio. 38 Later cases estab- lish under both the Fourteenth Amendment and Article IV, § 1, that the cause of action must have arisen within the State obtain- ing 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 ca- pacity, 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 While 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 chal- lenge 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 Jer- sey statute, had seized a sloop belonging to Whitman and by a pro- ceeding in rem had obtained its condemnation and forfeiture in a local court. Later, Whitman, a citizen of New York, brought an ac- tion for trespass against Thompson in the United States Circuit Court for the Southern District of New York, and Thompson an- swered 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
Sec. 1—Full Faith and Credit: Judicial Proceedings
(^49) 181 U.S. 155, 162 (1901). (^50) 201 U.S. 562 (1906). (^51) 317 U.S. 287 (1942); 325 U.S. 226 (1945).
Divorce Suit: In Rem or in Personam; Judicial Indeci- sion. —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 an- nounced that a divorce proceeding might be viewed as one in perso- nam. In the former it was held, in the latter 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 which 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 re- quire personal service upon her or her voluntary appearance, nei- ther of which had been had; although, notwithstanding this, the de- cree in the latter case was held to be valid in the State where ob- tained because of the State’s inherent power to determine the sta- tus 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 ear- lier acknowledged that ‘‘a husband without a wife, or a wife with- out 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 cases 51 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. Shortly prior thereto, the Court in Davis v.
Sec. 1—Full Faith and Credit: Judicial Proceedings
(^52) 305 U.S. 32 (1938). (^53) 317 U.S. 287, 298–299 (1942).
Davis^52 rejected contentions adverse to the validity of a Virginia decree of which enforcement was sought in the District of Colum- bia. 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 rul- ing that the Virginia decree, granting to the husband an absolute divorce minus any alimony payment, was enforceable in the Dis- trict, the Court stated that in view of the wife’s failure, while in Virginia litigating her husband’s status to sue, to answer the hus- band’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 juris- dictional prerequisite of domicile was made in a contested proceed- ing while in the Williams cases it was not. Williams I and Williams II. —In the Williams I and Williams II cases, the husband of one marriage and the wife of another left North Carolina, obtained six-week divorce decrees in Nevada, mar- ried 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 peti- tioners 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 insti- tution 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.’’ Ac- cordingly, 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 mar- riage was performed and where the other party to the marriage is still domiciled when the divorce was decreed. In view of its as-
Sec. 1—Full Faith and Credit: Judicial Proceedings
‘‘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 con- ception.... No legal conception, save possibly ‘jurisdiction’... afford such possi- bilities 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 have not held] that de- nial 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 dif- ference. The test is not different evidence. It is evidence, whether the same or dif- ferent 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 sensibili- ties as wrong, by some not stated standard.... There will be no ‘weighing’ [of evi- dence],... only examination for sufficiency.’’ 325 U.S., 248, 251, 255, 258–259. No less disposed to prophesy undesirable results from this decision was Justice Black in whose dissenting opinion Justice Douglas concurred. ‘‘The full faith and credit clause, as now interpreted, has become a disrupting influence. The Court in effect states that the clause does not apply to divorce ac- tions, and that States alone have the right to determine what effect shall be given to the decrees of other States. If the Court is abandoning the principle that a mar- riage [valid where made is valid everywhere], a consequence is to subject people to bigamy or adultery prosecutions because they exercise their constitutional right to pass from a State in which they were validly married on to another which refuses to recognize their marriage. Such a consequence violates basic guarantees.’’ Id., 262. (^59) 334 U.S. 343 (1948).
Cases Following Williams II. —Fears registered by the dis- senters in the second Williams case that the stability of all divorces might be undermined thereby and that thereafter 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 the holding in Sherrer v. Sherrer , 59 wherein Massachusetts, a State of domiciliary origin, was required to accord full faith and credit to a 90-day Florida decree which had been contested by the husband. The latter, upon receiving notice by mail, retained Flor- ida counsel who entered a general appearance and denied all alle- gations 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 resi- dence, and when the Florida court ruled that she was a bona fide resident, the husband did not appeal. Inasmuch as the findings of the requisite jurisdictional facts, unlike those in the second Wil- liams case, were made in proceedings in which the defendant ap- peared 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, par- ticularly 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
Sec. 1—Full Faith and Credit: Judicial Proceedings
(^60) 334 U.S. 378 (1948). In a dissenting opinion filed in the case of Sherrer v. Sherrer , but applicable also to the case of Coe v. Coe , Justice Frankfurter, with Jus- tice 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 had been gone through.’’ 334 U.S., 343, 377. (^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,’ but for the first Williams case and its progeny, the judgment of the Connecticut court 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. 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., 676, 679, 680.
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 ap- plied like reasoning to reach a similar result. Massachusetts again was compelled to recognize the validity of a six-week Nevada de- cree 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, ad- mitted 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 Mas- sachusetts 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 Massachu- setts law a decree of separate support would survive a divorce, rec- ognition 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 decreed therein, is the case of Rice v. Rice. 61 To determine the widowhood status of the party liti- gants in relation to inheritance of property of a husband who had deserted his first wife in Connecticut, had obtained an ex parte di- vorce in Nevada, and after remarriage, had died without ever re- turning to Connecticut, the first wife, joining the second wife and
Sec. 1—Full Faith and Credit: Judicial Proceedings
(^64) Id., 281–283. (^65) 334 U.S. 541 (1948). See also the companion case of Kreiger v. Kreiger, 334 U.S. 555 (1948). (^66) Esenwein v. Commonwealth, 325 U.S. 279, 280 (1945). (^67) 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 sepa- rate maintenance decree, or merely that no ‘‘ ex parte ’’ decree of divorce of another State could, Justice Frankfurter dissented and recommended that the case be re- manded 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 di- vorces obtained on short residence. 334 U.S. 541, 549–554 (1948). These two Jus- tices filed similar dissents in the companion case of Kreiger v. Kreiger, 334 U.S. 555, 557 (1948). (^68) 381 U.S. 81 (1965).
of the family deserted by the head of the household. If he is re- quired to support his former wife, he is not made a bigamist and the offspring of his second marriage are not bastardized.’’ Or, as succinctly stated by Justice Rutledge, ‘‘the jurisdictional foundation for a decree in one State capable of foreclosing an action for main- tenance 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 as spokesman for a ma- jority of the Court, Justice Douglas reiterated these views in the case of Estin v. Estin. 65 Even though it acknowledged the validity of an ex parte Nevada decree obtained by a husband, New York was held not to have denied full faith and credit to the decree when, subsequently thereto, it granted the wife a judgment for ar- rears in alimony founded upon a decree of separation previously awarded to her when both she and her husband after he had re- sided there a year and upon constructive notice to the wife in New York who entered no appearance, was held to be effective only to change the marital status of both parties in all States of the Union but ineffective on the issue of alimony. Divorce, in other words, was viewed as being divisible; Nevada, in the absence of acquiring juris- diction over the wife, was held incapable of adjudicating the rights of the wife in the prior New York judgment awarding her alimony. Accordingly, the Nevada decree could not prevent New York from applying its own rule of law which, unlike that of Pennsylvania, 66 does permit a support order to survive a divorce decree. 67 Such a result was justified as accommodating the interests of both New York and Nevada in the broken marriage by restricting each State to matters of her dominant concern, the concern of New York being that of protecting the abandoned wife against impover- ishment. In Simons v. Miami National Bank , 68 the Court held that
Sec. 1—Full Faith and Credit: Judicial Proceedings
(^69) Id., 84–85. (^70) 334 U.S. 541 (1948). (^71) 381 U.S., 84–85. (^72) Id., 85. (^73) Barber v. Barber, 323 U.S. 77, 84 (1944). (^74) Sistare v. Sistare, 218 U.S. 1, 11 (1910). See also Barber v. Barber, 21 How. (62 U.S.) 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).
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. 69 The Court found the principle of Estin v. Estin^70 was not applicable. In Simons , the Court re- jected 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 es- tate in the forum State. 71 Full faith and credit is not denied to a sister State’s separation decree, including an award of monthly ali- mony, 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 lo- cated 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. 72 Decrees Awarding Alimony, Custody of Children. —Result- ing as a by-product of divorce litigation are decrees for the payment of alimony, judgments for accrued and unpaid installments of ali- mony, 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 which 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 modi- fied 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. 73 As to the finality of alimony decrees in general, the Court had pre- viously ruled that where such a decree is rendered, payable in fu- ture 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. 74 How- ever, a judicial order requiring the payment of arrearages in ali- mony, which exceeded the alimony previously decreed, is invalid for want of due process, the respondent having been given no oppor-
