# Vanderbilt v. Vanderbilt/Dissent Frankfurter

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Frankfurter Harlan
United States Supreme Court
354 U.S. 416
Vanderbilt v. Vanderbilt
Argued: April 22, 23, 1957. --- Decided: June 24, 1957
Mr. Justice FRANKFURTER, dissenting.
The question in this case is whether Nevada, which was empowered to grant petitioner a divorce without personal jurisdiction over respondent that must be respected, by command of the Constitution, by every other State, Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, was at the same time empowered by virtue of its domiciliary connection with petitioner to make, incidental to its dissolution of the marriage, an adjudication denying alimony to which sister States must also give full faith and credit. Whatever the answer to the question may be, Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, does not supply it. What the Court now states to be 'not material' was crucial to the decision in that case, namely, the prior New York support order, which the Court held Nevada was required to respect by virtue of the Full Faith and Credit Clause, Art. IV, § 1, of the Constitution. That this fact was crucial to the Court's decision in that case is made clear by the Court's reference to the prior New York judgment in its two statements of the question presented more than a half dozen times throughout the course of its opinion. The Court rightly regarded the fact as crucial because of the requirement of Art. IV, § 1, that Nevada give full faith and credit to the prior New York 'judicial Proceedings.'
The Court now chooses to regard the existence of a prior New York support order as 'not material,' holding for the first time that 'the Nevada divorce court had no power to extinguish any right which (respondent) had under the law of New York to financial support from her husband. It has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant (citing for this proposition, Pennoyer v. Neff, 95 U.S. 714, 726-727, 24 L.Ed. 565).' We have thus reached another stage-one cannot say it is the last-in the Court's tortuous course of constitutional adjudication relating to dissolution of the marriage status. Whereas previously only the State of 'matrimonial domicile' could grant an ex parte divorce and alimony, now any domiciliary State can grant an ex parte divorce, but no State, even if domiciliary, can grant alimony ex parte when it grants a divorce ex parte.
It will make for clarity to give a brief review of the singular history of matrimonial law in this Court since the decision in Atherton v. Atherton, 181 U.S. 155, 21 S.Ct. 544, 45 L.Ed. 794. In that case, the Court held that a sister State had to give full faith and credit to a divorce granted, on the basis of constructive service, by the matrimonial domicile to a deserted husband. In Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, the Court refused to extend Atherton, holding that a State need not give full faith and credit to a divorce granted ex parte to a deserted husband by a domiciliary State other than the matrimonial domicile. These precedents were applied to the incidental claim to alimony in Thompson v. Thompson, 226 U.S. 551, 33 S.Ct. 129, 57 L.Ed. 347, where the Court held that full faith and credit was to be given to the refusal of the matrimonial domicile to grant alimony when it granted a divorce on the basis of substituted service. Under the pre-Williams law, then, the same jurisdictional rules applied to the dissolution of the marriage tie and to an incidental adjudication denying alimony. Not only the adjudication of divorce but also the adjudication denying alimony by the matrimonial domicile was required to be given full faith and credit despite the lack of personal jurisdiction over the other spouse.
In Williams v. State of North Carolina, I, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, the scope of Art. IV, § 1, was found to require full faith and credit to be given to a divorce granted ex parte by any State where one spouse was domiciled. The limitation of ex parte divorces to the matrimonial domicile imposed by Hoddock v. Haddock was rejected as being based on 'fiction.' Williams v. State of North Carolina, II, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, made it clear that full faith and credit was required to be given only if the granting State was actually a domiciliary State, that the finding on this issue could not be foreclosed by the decreeding State, and that it could be readjudicated later by another State. But this restriction of Williams II was considerably weakened when the Court held that a sister State, no matter how great its interest because of its own social policy, was precluded from relitigating the existence of the jurisdictional facts underlying a divorce when both parties had merely made an appearance in the original divorce proceeding. Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429, and Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451. This was so even if the collateral attack were made by a third party who had not appeared in the original proceeding and who had independent interests. Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552.
The decisions from Williams I through Johnson resulted in a broad extension of the scope of the Full Faith and Credit Clause. Haddock v. Haddock was rejected, not because it gave too little respect to the rights of the absent spouse, but rather because it gave too much respect to those rights, and not enough to the rights of the other spouse and his or her domiciliary State. The interests of the absent spouses were subordinated to the interests of the other spouses and their domicile of divorce in Williams I, and the interests of a State that was allegedly both pre-divorce and post-divorce domicile were subordinated to the interest of the temporary 'domicile' of divorce in Sherrer and Coe.
One might have expected that since Thompson v. Thompson, supra, was based on Haddock v. Haddock, it would have suffered the same fate. But no. The law is not so logical. The Court shrinks from applying Williams I to Thompson. In fact, we are now told that the vice of Thompson v. Thompson is just the opposite of that of Haddock v. Haddock: Thompson paid too little respect to the rights of the absent spouse and too much to the rights of the other spouse and his domicile. And so, as compensation, the interests of the absent spouse, which the Court subordinated so far as the breaking up of the marital relation was concerned in Williams I, are now to be enlarged, so far as alimony is concerned. The requirement of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, that there must be personal jurisdiction in an action to recover a judgment for personal services rendered, was before the Court in Haddock, in Thompson, and in Williams I. Although it was found in all three cases not to be applicable to the unique interests and factors pertaining to the severance of the marriage status and the incidental determination denying alimony, it is now treated as a controlling precedent.
A normal action for divorce comprehends dissolution of the marital relation and, incident thereto, a property arrangement between the parties. I stand on the Williams decisions; and so I start from the proposition that full faith and credit must be given to an ex parte divorce granted by a State that is the domicile of one of the parties. The only legal question for our concern in this case is whether the other aspect of, and indeed an incident to, a proceeding for divorce, the property arrangement, is similar enough to the dissolution of the marital relation, with respect to both the interests of the parties and the nature of what is adjudicated, that constitutionally it may be treated alike.
Haddock v. Haddock and Thompson v. Thompson proceeded on the basis that they should be treated alike. The Court, however, solves all with the statement, 'It has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.' This is an artful disguise for labeling the action with the question-begging phrase, 'in personam.' A dogmatic, unanalyzed disregard of the difficulties of a problem does not make the problem disappear. Strictly speaking, all rights eventually are 'personal.' For example, a successful suit in admiralty against a ship results of course not in loss to the ship but to its owner. The crucial question is: what is the fair way to proceed against these interests? May a State deal with the dissolution of a marriage comprehensively, or must it chop up the normal incidents of the cause of action for divorce?
No explanation is vouchsafed why the dissolution of the marital relation is not so 'personal' as to require personal jurisdiction over an absent spouse, while the denial of alimony incident thereto is. Calling alimony a 'personal claim or obligation' solves nothing. I note this concern for 'property rights,' but I fail to see why the marital relation would not be worthy of equal protection, also as a 'personal claim or obligation.' It may not be translatable into dollars and cents, but that does not make it less valuable to the parties. It cannot be assumed, by judicial notice as it were, that absent spouses value their alimony rights more highly than their marital rights. Factually, therefore, both situations involve the adjudication of valuable rights of an absent spouse, and I see no reason to split the cause of action and hold that a domiciliary State can ex parte terminate the marital relation, but cannot ex parte deny alimony. 'Divisible divorce' is just name-calling. I would therefore hold that Nevada had jurisdiction to make the determination it made with respect to alimony and that New York must give full faith and credit to the whole Nevada judgment, not just to the whole Nevada judgment, not just to part of it.
It should also be noted that the Court's decision, besides turning the constitutional law of marital relations topsyturvy, has created numerous problems whose solution is far from obvious. The absent spouse need no longer appear in the divorcing State in order to be present when an adjudication is made. She (or he) may sue wherever she can serve the other spouse or attach his property. What will happen in States that grant alimony only as incident to a divorce? Most States do not have statutes like the New York statute involved in the present case. Would this Court require any State in which one spouse catches another to entertain a cause of action for alimony? This is a far cry from what was involved in Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212. Also, it is not even settled what the relation of a State to an ex-wife and an ex-husband must be for the State, as a matter of due process, to be able to grant support on the basis that the parties were once man and wife.
Another view, agreeing that Nevada can adjudicate alimony ex parte incident to its granting a divorce ex parte, at least for purposes of its own law, would then hold that New York is not compelled to give full faith and credit to the valid Nevada judgment. 'New York's law and policy is,' so the argument runs, 'that the right of a married woman domiciled in New York to support survives an ex parte divorce, whether obtained in New York or elsewhere. * * * The interest of New York in her domiciliaries seems * * * to be of sufficient weight to justify allowing her to apply her own policy on the question of what effect ex parte divorces will be given as against the surviving support rights of her own domiciliaries.'
To begin with, it cannot be pretended that New York is not discriminating against alimony adjudications in all out-of-state ex parte divorces, for a divorce granted to a husband in New York against a wife who is not served personally in New York is not ex parte if the wife is a New York domiciliary. Her domicile provides a basis of jurisdiction that would be sufficient in an ordinary non-matrimonial action. See Williams v. State of North Carolina, I, 317 U.S. 287, 298-299, 63 S.Ct. 207, 213, 87 L.Ed. 279; Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278.
To go to the heart of the matter, the Full Faith and Credit Clause is itself a constitutional adjustment of the conflicting interests of States, and we are not free, by weighing contending claims in particular cases, to make readjustments of the conflicting interests as if the Full Faith and Credit Clause did not exist. The clause requires that 'Full Faith and Credit shall be given in each State to the * * * Judicial Proceedings of every other State.' See also 28 U.S.C. § 1738, 28 U.S.C.A. s 1738. It is true that the commands of the Full Faith and Credit Clause are not inexorable in the sense that exceptional circumstances may relieve a State from giving full faith and credit to the judgment of a sister State because 'obnoxious' to an overriding policy of its own. But such instances 'have been few and far between, apart from Haddock v. Haddock.' See Williams v. State of North Carolina, I, 317 U.S. 287, 294-295, 63 S.Ct. 207, 211.
Of course New York has substantial connection with a domiciliary who has been divorced ex parte in Nevada, but that provides no justification for allowing it to refuse to give full faith and credit to that part of the Nevada judgment denying alimony. A State desiring to deny full faith and credit to the judgment of another State almost always has such a connection. Whatever the unusual circumstances that may justify making an exception to the requirements of the Full Faith and Credit Clause, this case does not present them because, for the reasons I have already stated, no stronger state policy can be urged in this case than was overridden in Williams I. Blanket discrimination against ex parte alimony decrees of sister States therefore subordinates the requirements of the Full Faith and Credit Clause to the policy of New York.
To justify the New York law as a 'mere survival of a pre-existing right' is only another proof that 'the word 'right' is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion.' American Bank & Trust Co. v. Federal Reserve Bank, 256 U.S. 350, 358, 41 S.Ct. 499, 500, 65 L.Ed. 983. There can be no 'right' until the termination of the marriage, and the whole question in the case is which State shall be able to determine the indicents of the dissolution of the marriage status. Nor is analysis furthered by analogizing the 'right' to alimony to the dower 'right,' thence sliding to the conclusion that since New York would not have to recognize a Nevada decree cutting off dower, it does not have to recognize the Nevada decree cutting off alimony. The differences between a 'right' to alimony and a dower 'right' are so decisive that I need not spell out why an assumed decision with respect to dower does not reach our problem.
We are also told that 'the interest of the wife in not becoming single and penniless is greater than her interest in not becoming single.' This is doubtless a correct statement of fact and might furnish a basis for legislation of a kind not at issue in this case, since the New York law is based on its right to disregard all ex parte alimony decrees and not on an interest it may have in the indigent condition of former wives.
For me, the rigorous commands of the Full Faith and Credit Clause are determinative. I cannot say that the Nevada judgment denying alimony is more 'obnoxious' to New York policy (as expressed in § 1170-b of its Civil Practice Act) than its judgment of divorce. Since New York is required to give full faith and credit to the one, it is to the other.

## Notes

* ↑ Custody over children presents an entirely different problem. See May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221. The interests of independent human beings, the children, are involved. Also, insofar as the spouses' interests are concerned, the divorce may terminate their relations with each other as husband and wife, but it cannot terminate their relation to their children. They are still parents
* ↑ 'The deceptive appeal of the phrase 'divisible divorce' should not be permitted to obscure the basic concepts involved. A finding of divisibility may be appropriate where, as in Estin, the particular right at issue is a distinct property right, embodied in a previously granted judgment, which is no longer dependent, for its recognition or enforcement, upon the marital relationship, or where, as in Armstrong, the court rendering the divorce has itself severed the issue of support and left it subject to separate adjudication in the future. The situation is, however, decidedly different where, as in the case before us, the claim asserted depends for its very existence on the continuance of the marital status and that status and its incidents have both been terminated by a jurisdictionally valid judgment of divorce.' Judge Fuld, dissenting in this case in the New York Court of Appeals, 1 N.Y.2d 342, 356-357, 135 N.E.2d 553, 561. I would add that the concept of 'divisible divorce' is a misnomer. The divorce is not divisible. It is the cause of action for terminating the marital relation and making a property arrangement that is divided.
* ↑ We are not told what a third State is to do if suit is brought there. Does New York or Nevada law control? Since, under this view, the husband's ex parte judgment denying alimony to the wife is a valid one, at least in Nevada, I would suppose that the wife could get a support judgment ex parte in New York. Then, there would be not merely a problem of choice of law in the third State, which has no domicilliary connection with either party, but rather a question of which judgment is entitled to full faith and credit in the third State.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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