# May v. Anderson/Concurrence Frankfurter

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Frankfurter
* Dissenting Opinion Minton
United States Supreme Court
345 U.S. 528
May v. Anderson
Argued: Jan. 6, 1953. --- Decided: May 18, 1953
Mr. Justice FRANKFURTER, concurring.
The views expressed by my brother JACKSON make it important that I state, in joining the Court's opinion, what I understand the Court to be deciding and what it is not deciding in this case.
What is decided-the only thing the Court decides-is that the Full Faith and Credit Clause does not require Ohio, in disposing of the custody of children in Ohio, to accept, in the circumstances before us, the disposition made by Wisconsin. The Ohio Supreme Court felt itself so bound. This Court does not decide that Ohio would be precluded from recognizing, as a matter of local law, the disposition made by the Wisconsin court. For Ohio to give respect to the Wisconsin decree would not offend the Due Process Clause. Ohio is no more precluded from doing so than a court of Ontario or Manitoba would be, were the mother to bring the children into one of these provinces.
Property, personal claims, and even the marriage status, see, e.g., Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429, generally give rise to interests different from those relevant to the discharge of a State's continuing responsibility to children within her borders. Children have a very special place in life which law should reflect. Legal theories and their phrasing in other cases readily lead to fallacious reasoning it uncritically transferred to determination of a State's duty towards children. There are, of course, adjudications other than those pertaining to children, as for instance decrees of alimony, which may not be definitive even in the decreeing State, let alone binding under the Full Faith and Credit Clause. Interests of a State other than its duty towards children may also prevail over the interest of national unity that underlies the Full Faith and Credit Clause. But the child's welfare in a custody case has such a claim upon the State that its responsibility is obviously not to be foreclosed by a prior adjudication reflecting another State's discharge of its responsibility at another time. Reliance on opinions regarding out-of-State adjudications of property rights, personal claims or the marital status is bound to confuse analysis when a claim to the custody of children before the courts of one State is based on an award previously made by another State. Whatever light may be had from such opinions, they cannot give conclusive answers.
Mr. Justice JACKSON, whom Mr. Justice REED joins, dissenting.
The Court apparently is holding that the Federal Constitution prohibits Ohio from recognizing the validity of this Wisconsin divorce decree insofar as it settles custody of the couple's children. In the light of settled and unchallenged precedents of this Court, such a decision can only rest upon the proposition that Wisconsin's courts had no jurisdiction to make such a decree binding upon appellant. Baker v. Baker, Eccles & Co., 242 U.S. 394, 401, 37 S.Ct. 152, 154, 61 L.Ed. 386; Esenwein v. Commonwealth of Pennsylvania ex rel. Esenwein, 325 U.S. 279, 281, 65 S.Ct. 1118, 1119, 89 L.Ed. 1608.
A conclusion that a state must not recognize a judgment of a sister commonwealth involves very different considerations than a conclusion that it must do so. If Wisconsin has rendered a valid judgment, the Constitution not only requires every state to give it full faith and credit, but 28 U.S.C. § 1738, 28 U.S.C.A. § 1738, referring to such judicial proceedings, commands that they 'shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.' The only escape from obedience lies in a holding that the judgment rendered in Wisconsin, at least as to custody, is void and entitled to no standing even in Wisconsin. It is void only if it denies due process of law.
The Ohio courts reasoned that although personal jurisdiction over the wife was lacking, domicile of the children in Wisconsin was a sufficient jurisdictional basis to enable Wisconsin to bind all parties interested in their custody. This determination that the children were domiciled in Wisconsin has not been contested either at our bar or below. Therefore, under our precedents, it is conclusive. Williams v. State of North Carolina, 317 U.S. 287, 302, 63 S.Ct. 207, 215, 87 L.Ed. 279. The husband, plaintiff in the case, was at all times domiciled in Wisconsin; the defendant-wife was a Wisconsin native, was married there and both were domiciled in that State until her move in December 1946, when the parties stipulate that she acquired an Ohio domicile. The children were born in Wisconsin, were always domiciled there, and were physically resident in Wisconsin at all times until December 1946, when their mother took them to Ohio with her. But the Ohio court specifically found that she brought the children to Ohio with the understanding that if she decided not to go back to Wisconsin the children were to be returned to that State. In spite of the fact that she did decide not to return, she kept the children in Ohio. It was under these circumstances that the Wisconsin decree was rendered in February 1947, less than two months after the wife had given up her physical residence in Wisconsin and held the children out of the State in breach of her agreement.
The husband subsequently went to Ohio, retrieved the children and took them back to Wisconsin, where they remained with him for four years. Then he voluntarily brought them to Ohio for a visit with their mother, whereupon she refused to surrender them, and he sought habeas corpus in the Ohio courts. In this situation Wisconsin was no meddler reaching out to draw to its courts controversies that arose in and concerned other legal communities. If ever domicile of the children plus that of one spouse is sufficient to support a custody decree binding all interested parties, it should be in this case. Cf. Yarborough v. Yarborough, 290 U.S. 202, 210, 54 S.Ct. 181, 184, 78 L.Ed. 269.
I am quite aware that in recent times this Court has been chipping away at the concept of domicile as a connecting factor between the state and the individual to determine rights and obligations. We are a mobile people, historically on the move, and perhaps the rigid concept of domicile derived by common law from feudal attachment to the land is too rigid for a society so restless as ours. But if our federal system is to maintain separate legal communities, as the Full Faith and Credit Clause evidently contemplates, there must be some test for determining to which of these a person belongs. If, for this purpose, there is a better concept than domicile, we have not yet hit upon it. Abandonment of this ancient doctrine would leave partial vacuums in many branches of the law. It seems to be abandoned here.
The Court's decision holds that the state in which a child and one parent are domiciled and which is primarily concerned about his welfare cannot constitutionally adjudicate controversies as to his guardianship. The state's power here is defeated by the absence of the other parent for a period of two months. The convenience of a leave-taking parent is placed above the welfare of the child, but neither party is greatly aided in obtaining a decision. The Wisconsin courts cannot bind the mother, and the Ohio courts cannot bind the father. A state of the law such as this, where possession apparently is not merely nine points of the law but all of them and self-help the ultimate authority, has little to commend it in legal logic or as a principle of order in a federal system.
Nor can I agree on principle with the Court's treatment of the question of personal jurisdiction of the wife. I agree with its conclusion and that of the Ohio courts that Wisconsin never obtained jurisdiction of the person of the appellant in this action and therefore the jurisdiction must be rested on domicile of the husband and children. Cf. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278. And I have heretofore expressed the view that such personal jurisdiction is necessary in cases where the domicile is obviously a contrived one or the claim of it a sham. Williams v. State of North Carolina, supra, 317 U.S. at page 311, 63 S.Ct. at page 219; Rice v. Rice, 336 U.S. 674, 676, 69 S.Ct. 751, 752, 93 L.Ed. 957. But here the Court requires personal service upon a spouse who decamps before the State of good-faith domicile can make provision for custody and support of the children still legally domiciled within it. Wisconsin had a far more real concern with the transactions actions here litigated than have many of the divorce-mill forums whose judgments we have commanded their sister states to recognize.
In spite of the fact that judges and law writers long have recognized the similarity between the jurisdictional requirements for divorce and for custody, this decision appears to equate the jurisdictional requirements for a custody decree to those for an in personam money judgment. One reads the opinion in vain to discover reasons for this choice, unless it is found in the remark that for the wife 'rights far more precious than property will be cut off' in the custody proceeding. The force of this cardiac consideration is self-evident, but it seems to me to reflect a misapprehension as to the nature of a custody proceeding or a revision of the views that have heretofore prevailed. When courts deal with inanimate property by the conventional in rem proceeding, their principal concern is the distribution of rights in that property, rather than with the welfare of the property apart from its ownership claims. But even where dealing solely with property rights, where concern with the 'res' is minimal and concern with the claimants is paramount, courts may exercise jurisdiction in rem over the property without having personal jurisdiction over all of the claimants. Only when they seek to render a party liable to some personal performance must they acquire personal jurisdiction.
The difference between a proceeding involving the status, custody and support of children and one involving adjudication of property rights is too apparent to require elaboration. In the former, courts are no longer concerned primarily with the proprietary claims of the contestants for the 'res' before the court, but with the welfare of the 'res' itself. Custody is viewed not with the idea of adjudicating rights in the children, as if they were chattels, but rather with the idea of making the best disposition possible for the welfare of the children. To speak of a court's 'cutting off' a mother's right to custody of her children, as if it raised problems similar to those involved in 'cutting off' her rights in a plot of ground, is to obliterate these obvious distinctions. Personal jurisdiction of all parties to be affected by a proceeding is highly desirable, to make certain that they have had valid notice and opportunity to be heard. But the assumption that it overrides all other considerations and in its absence a state is constitutionally impotent to resolve questions of custody flies in the face of our own cases. The wife's marital ties may be dissolved without personal jurisdiction over her by a state where the husband has a genuine domicile because the concern of that state with the welfare and marital status of its domiciliary is felt to be sufficiently urgent. Certainly the claim of the domiciled parent to relief for himself from the leave-taking parent does not exhaust the power of the state. The claim of children as well as the home-keeping parent to have their status determined with reasonable certainty, and to be free from an incessant tug of war between squabbling parents, is equally urgent.
The mother in this case would in all probability not be permanently precluded from attempting to redetermine the custody of the children. If the Wisconsin courts would allow modification of the decree upon a showing of changed circumstances, such modification could be accomplished by another state which acquired jurisdiction over the parties. People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133; cf. Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810. And, of course, no judgment settling custody rights as between the parents would itself prevent any state which may find itself responsible for the welfare of the children from taking action adverse to either parent. No such case is before us.
I fear this decision will author new confusions. The interpretative concurrence, if it be a true interpretation, seems to reduce the law of custody to a rule of seize-and-run. I would affirm the decision of the Ohio courts that they should respect the judgment of the Wisconsin court, until it or some other court with equal or better claims to jurisdiction shall modify it.
Mr. Justice MINTON, dissenting.

## Notes

* ↑ None of the cases involving exceptions to this rule are in point here. See, e.g., Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65.
* ↑ American Law Institute, Restatement, Conflict of Laws, 1934, §§ 117, 144-147.
* ↑ Cf. Curry v. McCanless, 307 U.S. 357, 59 S.Ct. 900, 83 L.Ed. 1339; State Tax Commission of Utah v. Aldrich, 316 U.S. 174, 62 S.Ct. 1008, 86 L.Ed. 1358; the Dorrance litigation, Dorrance v. Martin, 28 U.S. 678, 56 S.Ct. 949, 80 L.Ed. 1399; In re Dorrance's Estate, 115 N.J.Eq. 268, 170 A. 601; Id., 309 Pa. 151, 163 A. 303.
* ↑ See Goodrich, 'Custody of Children,' 7 Corn.L.Q. 1.
* ↑ Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023; Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897.
* ↑ Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.
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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