Armstrong v. Armstrong

PETITIONER:Armstrong
RESPONDENT:Armstrong
LOCATION:

DOCKET NO.: 38
DECIDED BY: Warren Court (1955-1956)
LOWER COURT:

ARGUED: Nov 15, 1955
DECIDED: Apr 09, 1956

Facts of the case

Question

  • Oral Argument – November 15, 1955 (Part 2)
  • Audio Transcription for Oral Argument – November 15, 1955 (Part 2) in Armstrong v. Armstrong

    Audio Transcription for Oral Argument – November 15, 1955 (Part 1) in Armstrong v. Armstrong

    Earl Warren:

    Number 38, Raymond C. Armstrong versus Mary R. Armstrong.

    Mr. Gorman.

    Robert N. Gorman:

    This matter is before the Court on certiorari — certiorari from the Supreme Court of Ohio.

    It involves questions of full faith and credit and due process of law in reference to a divorce actions in both Florida and Ohio.

    Briefly, the question is this.

    Armstrong, the petitioner was granted a divorce in Florida where both he and his wife had lived for 22 years, where they had a matrimonial domicile.

    She had fled to Ohio.

    The Florida Court denied her alimony.

    Subsequently, after this decree was entered, she filed a suit in Ohio for divorce and alimony.

    The Ohio court gave full faith and credit to the divorce, but awarded her alimony of 1250 shares of General Motors Stock approximately worth, today, $170,000.

    Now, it is our contention, in this case, that where the matrimonial domicile, and the doctrine has not been entirely abandoned, even though it has been whittled away and where she was served under a statute in Florida, reasonably calculated to give her notice.

    And that she actually did receive notice, and deliberately refused to appear in Florida.

    We say that the Ohio court should have given entire full faith and credit to the entire decree, and not applied the doctrine of divisible divorce.

    These facts supported and anything we had in (Inaudible) or in other case, because in those cases and all, the husband would go to another State and there obtained a divorce.

    Then the wife would either — they held the support order which survived or she’d come back later.

    These facts are different.

    Here, the husband remains in the matrimonial domicile and the wife flees to another State.

    If such a doctrine is to be upheld, then it seems to me that forum-shopping is a premium.

    That the husband could go.

    Take for example here and we had an actual case on this (Inaudible)

    He goes to Ohio and takes all his securities with him.

    The wife cannot get any alimony because she can’t get personal service.

    We maintain that if that’s the matrimonial domicile, the wife ought to their sufficient dominant interest in the matrimonial domicile and when where service is given that that ought to be recognized.

    Now, this matter’s never been before the Court.

    You can go back to way 226 United States, in the Thompson case, and Justice Pitney in that case, which has never been overruled.

    As a matter of fact, it was distinguished in the Estin case and if I would assume it’s still the law, that it’s going to be distinguished.

    But we’re not like right — relying alone on the Thompson case.

    There may be some modification in that rule.

    Now, I think briefly with that, as to the question, I should give you the facts.

    Armstrong, the petitioner and his wife were married in Cincinnati Ohio on June 18th, 1917.

    Robert N. Gorman:

    Shortly after that, they went to Florida and except for a short period of time spent in the Isle of Pines, they lived in Miami, Florida.

    There’s no question about that.

    You can read both her testimony on page 62, and his testimony on page 119.

    They quoted there, they owned their home there, they paid their taxes there and they claimed there exemptions.

    Now, they had some squabbles in the latter part of 1940’s.

    And they were adjusted.

    They owned real estate there and the principal stock although, there was others which Armstrong had at that time 2250 shares of General Motors Stock in his own name, on which he paid taxes in Florida.

    In October of 1950, Mrs. Armstrong purloined those unendorsed certificates and went to Ohio with him.

    The record shows that she did not immediately intend to make that her domicile.

    Felix Frankfurter:

    May I interrupt you?

    Robert N. Gorman:

    Certainly.

    Felix Frankfurter:

    When you said purloined is that fact that we must take for granted?

    Robert N. Gorman:

    Well, she took them with him.

    They were unendorsed.

    Felix Frankfurter:

    In case they turned on that.

    Robert N. Gorman:

    Well, as a matter fact, the Florida Court held they would go on.

    Felix Frankfurter:

    Did they?

    Robert N. Gorman:

    Oh yes, in the record.

    Felix Frankfurter:

    While the Court held that for Ohio to determine.

    Robert N. Gorman:

    Sir?

    Felix Frankfurter:

    The Florida court, as I read it if we held that for Florida — for Ohio to determine.

    Robert N. Gorman:

    They held that — yes, in one respect.

    But they made also the statement in the record as I have it here, page 248.

    In Florida, a wife may be guilty of conversion or even embezzlement of her husband’s property.

    That’s held by the Supreme Court of Florida.

    That’s the only State in Nation that quotes that.

    That’s at 248.

    The Court, therefore, finds that the stock certificates, bonds registry in the name of the plaintiff, the possession of which had been taken by the defendant against the consent of the plaintiff are the property of the plaintiff.

    Felix Frankfurter:

    But that’s on the one side, the determination and the next paragraph says, but the determination, the ultimate determination is for Ohio.

    Robert N. Gorman:

    They did say that.

    Robert N. Gorman:

    It was the ultimate determination.

    But they were also speaking the ultimate determination was real estate up there which is presenting partitions.

    Felix Frankfurter:

    That’s a different story.

    The ultimate real estate is located in Florida.

    Robert N. Gorman:

    No.

    There’s some real estate located in Ohio, which is the subject —

    Felix Frankfurter:

    They have down there?

    Robert N. Gorman:

    What is that?

    Which is a subject of a partition suit and was assumed.

    Felix Frankfurter:

    That in fact that the Florida court decree anything except for the reference of property the citing of which was in Florida.

    Robert N. Gorman:

    That is correct.

    Now, where we cite these are certificates is my point.

    Felix Frankfurter:

    That plainly enough decided the certificates are within Ohio because Ohio, as part of the brief, still recognized it.

    Robert N. Gorman:

    Well, I don’t think it makes it part of —

    Felix Frankfurter:

    That’s what you say?

    Well, it doesn’t make a — it remains unrealistic (Voice Overlap) —

    Robert N. Gorman:

    Yes, I understand that.

    I don’t think in our contention it makes any difference where they were.

    Felix Frankfurter:

    That’s — that’s a different story.

    It may well not be (Voice Overlap) —

    Robert N. Gorman:

    That’s correct.

    Well —

    Robert N. Gorman:

    Yes.

    — it may make a difference in interpreting the scope of this decree.

    Isn’t it possible to read the part of decree as not adjudicating the general right to alimony but only the right to alimony insofar as it related to property that had they had to decide this in Florida.

    That would be a matter of interpreting the decree.

    Robert N. Gorman:

    I don’t think so, because we’d — we’d come up to the Ohio court, in the proposition, the action that she filed is to set aside before the divorce decree in its entirely.

    Felix Frankfurter:

    But she lost that.

    She lost —

    Robert N. Gorman:

    She lost that part.

    Felix Frankfurter:

    And that the Ohio Court respects it.

    The decree —

    Robert N. Gorman:

    They respected that in apparent —

    Felix Frankfurter:

    — respected the decree insofar as the Florida Court exercised —

    Robert N. Gorman:

    Yes.

    Felix Frankfurter:

    — jurisdiction.

    Robert N. Gorman:

    There is no question about that and everyone seems to feel that way except Mr. Sibbald, the counsel for the respondent.

    He seems to feel there’s some question open on that.

    But no one else does insofar as the —

    Felix Frankfurter:

    But what —

    Robert N. Gorman:

    — divorce decree.

    Felix Frankfurter:

    They have it before us.

    In the first place, Ohio didn’t set aside the decree of divorce.

    Robert N. Gorman:

    No, sir.

    Felix Frankfurter:

    What we have before us is the refusal to do so, haven’t we?

    Robert N. Gorman:

    They did not set it aside.

    All they did, they did not recognize that portion of the decree which denied alimony.

    That’s all Ohio did.

    They recognized the divorce.

    And, of course they should after all.

    If there was ever a domicile of course in Florida.

    Felix Frankfurter:

    But anyhow, we’re — we’re not confronted with that problem because there was no appeal here, or cross-appeal on — on certiorari, objection to the refusal without further to affirmative.

    The Ohio court recognized the decree of divorce.

    And we’re not confronted with the rightness or wrongness of that disposition in Ohio but must be respected.

    Is that right?

    Robert N. Gorman:

    That’s my opinion.

    Felix Frankfurter:

    All right.

    Robert N. Gorman:

    That’s my opinion.

    Felix Frankfurter:

    And so we go on merely to the question of Justice Harlan has initiated.

    Robert N. Gorman:

    Yes.

    Felix Frankfurter:

    Exactly, what it is that the Florida court decreed to which Ohio if it has jurisdiction, which Ohio must make obedient?

    Robert N. Gorman:

    Well, of course, I think the statement is there.

    It is here on page 249.

    It said, “The Court therefore finds that the defendant is not coming to this Court with faith or made any claims to that of conscience to the Court.

    And has made no showing of any need on her part for alimony.

    It is, therefore, specifically decreed, that no award of alimony be made to the defendant.”

    And then they go on and say, “And that the legal and equitable title to the real estate above described, was vested in the plaintiff and so forth.”

    Now, I don’t read that brief simply to mention to say, “We’re not allowing any alimony out of the real estate” because there’s that word in there, “And they say, that no award of alimony has been made to it.”

    Well, if you read that in relation to the preceding paragraph, where the Court distinguishes between the real property that does have its status in Florida and the other property —

    Robert N. Gorman:

    Yes.

    — not described but it says, “Is subject to determination in Ohio.”

    Robert N. Gorman:

    Yes.

    Doesn’t that lend some support, to reading this decree as being limited simply to her right to alimony on the real property?

    Robert N. Gorman:

    No.

    I do no think so.

    Because what the Court did there was pending there, a partition suit at that time which involved property.

    And the Florida court recognized that.

    And I think it was in reference to that that they were saying that Ohio would have the right to determine it, not on the question of alimony.

    In other words, there would be two points.

    They both own real estate, real estate jointly in Ohio and Indiana.

    Now, certainly, that would be subject to partition in Indiana.

    But in addition to that, Mrs. Armstrong was not only claiming as alimony, but she was claiming in some way that she was a joint owner of that property in Ohio.

    That having been purchased with her funds, that part of it was hers.

    And that’s the reason why that part of the decree is in there.

    That wouldn’t have anything to do with the alimony action at all, or divorce action.

    It might have something to do with the separate action where she was making a claim that it was her property, which is pending in the other suit.

    Is the bill of complaint in the divorce, Florida divorce action in the record?

    Robert N. Gorman:

    Oh, yes.

    Yes.

    Where — where is that Mr. Gorman?

    Robert N. Gorman:

    The — you will notice the entire part of the record is here.

    And the decree is there on page 249.

    The decree I’ve got was the complaint of and —

    Robert N. Gorman:

    What did you say?

    199 is the bill of the complaint, which you will see.

    The bill of complaint to divorce is Exhibit 3.

    It follows the entire proceedings, of course, from 199 is a Florida proceeding.

    So, we have both the proceedings in Ohio court and Florida court before us.

    And in there, the prayer — then there’s an amendment on 213, as you’ll notice.

    That’s in reference to a redress, but it’s a rather long complaint if you’ll notice, on page 199.

    That is my opinion.

    And I think if you consult the record that that question of the parting of Florida decree, was in reference to the independent action that was then pending at the time the decree was put on.

    There was an action pending as is shown by the record.

    For example, I think the most significant point in the whole case, insofar as we’re concerned, are the two letters on Exhibit 2, Exhibit (i) and (j) on page 302 and 303.

    You will notice in page 303 that after service, Mr. Sibbald wrote to the attorney for Armstrong, “Some days ago, I filed in the Court of Common Pleas an action to partition the Ohio real estate in the cause to summon to the issue which has been returned not found.”

    Then he says, in the next paragraph and this is the most significant thing.”

    I do not intend to enter Mrs. Armstrong’s appearance in a complaint for divorce.

    I presume that complaint will result in a decree and that you will prosecute that matter to an early conclusion.

    That being so, that allegations of the complaint are such that I shall be compelled in proceedings to be filed here, to claim the decree was procured upon false allegations.”

    So, I mean it shows in the record definitely, not only that there was actual or notice by publication what she received, actual notice.

    And she deliberately refused to return to Florida.

    Felix Frankfurter:

    But — but that wouldn’t make any difference as to the finding, equality of Florida on property not situate in Florida.

    He made them — this is — this is merely ex parte determination, meaning those who have noticed.

    Robert N. Gorman:

    That is —

    Felix Frankfurter:

    It — it empowers Florida to dispose of the reason in Florida.

    It doesn’t empower Florida to determine rights and the reason in Ohio.

    Robert N. Gorman:

    Well, that is the question.

    Let us say, that certainly if you had divorce, let us say in Ohio.

    And the real estate is located in New York or the property in New York.

    Ohio could wind up the entire property sale.

    Robert N. Gorman:

    Make it right there in the divorce decree.

    There’s no question about that.

    Felix Frankfurter:

    The property in Ohio?

    Robert N. Gorman:

    Yet, no property all over it.

    Felix Frankfurter:

    Oh, no.

    Robert N. Gorman:

    But there wouldn’t — wouldn’t be any question, for instance, that if there would be an action between my wife and self — myself, which, of course, there never would be.

    But if there would be such an action in Ohio and I own property in California, the Ohio court would determine in the divorce decree, whose property that was in California, because it’d jurisdiction over both of us.

    The personal —

    Felix Frankfurter:

    But there’s no personal —

    Robert N. Gorman:

    Yes.

    Felix Frankfurter:

    — and in — and in remedy created by the property situate outside (Voice Overlap) —

    Robert N. Gorman:

    Oh, now you’re talking about the in rem.

    I’m talking about an in personam decree.

    Felix Frankfurter:

    Well, did — did he personally appear?

    Robert N. Gorman:

    Well now, this — that comes to the real question in the case.

    Felix Frankfurter:

    Did he personally appear?

    Robert N. Gorman:

    Well —

    Felix Frankfurter:

    That the power of a decision as granted before does not include, in the absence of personal appearance, does not include the power to dispose of property outside of the boundary of the State.

    Robert N. Gorman:

    Now, of course, then you’ll come down to the whole question that’s in here.

    I will concede this.

    If you make the strict — strict application of Pennoyer versus Neff, then the Ohio Supreme Court was right.

    If you take the actions to one — if you’re going to hold to the actions that are in personam and those who that are in rem, then we’re out.

    That I concede.

    There’s no question about that.

    If you’re going to take it strictly.

    But if you can take to this action that we have that are equivalent to the cases, first of all, you have before in a statute on constructive service, which unfortunately is not in our brief but I can give you the Section, 4813.

    It is a statute that provides that the notice must be mailed to the defendant.

    We say it is reasonably calculated to give notice.

    Felix Frankfurter:

    Does that cut in to Pennoyer and Neff, that statute?

    Robert N. Gorman:

    I think so.

    Robert N. Gorman:

    Because if we come —

    Felix Frankfurter:

    Because of Pennoyer and Neff?

    Robert N. Gorman:

    — if we come to the matter of Milliken and Meyer, then we’d get to this theory of the matter.

    Were the interest of Florida, where there domicile was for 22 years, were they sufficiently dominant, that they could settle all the marital relations between ship or relations between the parties?

    That’s the whole matter.

    Are they sufficiently dominant?

    We say they are.

    We say they lived there for 22 years.

    We take for example Hess v. Pawloski.

    Certainly, if by running an automobile over a highway of a State, you can get personal judgment against the person.

    It seems to us, that the interest of a State where they lived for 22 years are sufficiently dominant, to be able to settle all there affairs.

    That is our position in the matter.

    And, if you have further the proposition, which is, that if there is a statute that is reasonably calculated to give such notice and there is actual notice, then we say due process is complied.

    Now, if due process is complied with, then you have to give full faith and credit to the Florida decree.

    Felix Frankfurter:

    So what was the — the problem of the considerations that you have granted?

    Robert N. Gorman:

    Yes.

    Felix Frankfurter:

    That the disposition of the property within the State lies within the power of the State, whether you have personal service or not or whether you have actual notice or not.

    As long as you don’t come in and contest it.

    They’re talking about something else, namely, the reach of that power of the State there’s property outside that’s before them.

    Robert N. Gorman:

    Oh, that’s the question of whether we had a quasi in rem jurisdiction.

    I quite agree.

    But if it’s founded not only on quasi in rem, then only the property that’s in Florida can be subject, then outlawed, you might say by —

    Felix Frankfurter:

    But the thought we had when we reversed had it (Inaudible)

    Robert N. Gorman:

    Yes.

    Felix Frankfurter:

    — it was written.

    Robert N. Gorman:

    I know the —

    Felix Frankfurter:

    That was the thought we had (Inaudible) you define correctly, quasi in rem.

    Robert N. Gorman:

    Yes.

    Felix Frankfurter:

    And that’s why you can break within — you can break it summarily.

    Robert N. Gorman:

    And.

    Felix Frankfurter:

    We’re concerned here with the authority of Ohio of a property within its domain.

    Robert N. Gorman:

    But — but you were doing when you come to, not only the question of property in Ohio over its domain, you have to consider the first point.

    Florida has rendered the decree.

    In the Florida decree, there are two matters.

    One, a divorce is granted.

    Two, alimony is denied.

    Now, I say I read that decree that it’s denied completely, alimony.

    Can Ohio, can there be a collateral attack, made upon that Florida decree or do they have to go full faith and credit to the Florida’s brief?

    Now, the second matter comes in, which I never thought which as strong as to have question of property in Florida giving them jurisdiction.

    That never has appealed to me as much as the fact, that I think Florida had such — they certainly had minimal contacts and it certainly complies with out notions, the traditional notions of fair play.

    Felix Frankfurter:

    But you — you would at least, for me evidence in the case.

    I’m not saying I’ve reached your, at least, the problem of your case.

    But you would have a different case if the decree of Ohio and Florida was simply, we’ve considered the situation of the party as we have circuit judges concluded that this defendant would have alimony, period.

    Simply to judge that.

    Robert N. Gorman:

    I think that’s what it says.

    Felix Frankfurter:

    (Voice Overlap) as I read the decree.

    Robert N. Gorman:

    Well, that’s what I think it says.

    Felix Frankfurter:

    Pardon me?

    Robert N. Gorman:

    That’s what I think it says.

    I think the rest of it because here’s the question.

    After all, when a wife gets alimony, she hasn’t getting an interest in the writs.

    What she is getting are rights of support.

    It’s not in specific property at all.

    It’s whether or not you’re going to — to enter right.

    Now, I say the great difficulty of the matter.

    That when you — I have no complaint with Estin.

    I said that before, I have no complaint with applying the doctrine of divisible divorce to a case of Estin, where say, the husband goes out to Nevada.

    And there’s no personal service.

    I think that her right to alimony should survive in such States where they permit it to survive.

    There are some States like Vermont where they don’t.

    Robert N. Gorman:

    And they say a wife is only a person who can get alimony matter.

    But I don’t — I’m going to be frank in saying Ohio is not one of those States.

    I think Florida was.

    I don’t know where Florida is now, since the Pawley case is a Cuban case.

    But they were originally under the (Inaudible) case they were just exactly like Vermont.

    That once there was a divorce, they couldn’t — no matter where it was, you couldn’t have alimony.

    Now, my point is this.

    That if we uphold the Ohio decree what we do is to have nothing but a chaotic situation.

    There is no form in the world then, where a husband and wife can have their marital difficulties settled, because the fleeing spouse can say, “I don’t like Florida.

    I think I can get better the alimony of Indiana and go up there.”

    Unless she can get personal service on her husband, she’ll never get any alimony.

    And the husband, if he stays in the domicile and the wife goes some place, he can’t get his marital difficulties settled.

    There’s no form in the world.

    And what it does, as a matter of public policy, it puts a premium on — on forum-shopping, in a stay of migratory divorce.

    Felix Frankfurter:

    But that didn’t conceive here, Mr. Gorman.

    Robert N. Gorman:

    Sir?

    Felix Frankfurter:

    That I couldn’t — it did not conceive forum-shopping.

    The husband got a divorce and Ohio properly respected it.

    Robert N. Gorman:

    Yes.

    Felix Frankfurter:

    And Ohio might well have said, it didn’t say it in those words, but for all practical purposes, it says, as I read, as we read the decree of Judge Morris in Florida.

    He didn’t give this woman a divorce because he said she does have property here in Florida and they went to squabble up their legal controversy up in Ohio about property.

    And we’re going to leave you, whatever property has this woman has, the determination of the Ohio court.

    Robert N. Gorman:

    Well now —

    Felix Frankfurter:

    That’s what in effect Judge Morris’s decree, indicates to me.

    Robert N. Gorman:

    Well, let’s see if it does, sir.

    Let us turn to the very first petition.

    The petition in this —

    Felix Frankfurter:

    Now, don’t go to the petition.

    Go to the decree.

    Robert N. Gorman:

    No.

    Robert N. Gorman:

    I want to go to the petition in Ohio.

    They didn’t ask for that.

    Just take it that they asked in the petition in Ohio, that the Florida decree be set aside on the ground of fraud and you’ll fight the prayer.

    They’re not asking for any division of property.

    Wherefore plaintiff prays that she be divorced from the defendant at the top of page 6.

    That she be awarded alimony temporary and permanent and their expenses.

    That the defendant corporations be required to cancel and reissue the certificates of stock.

    Felix Frankfurter:

    What would it be — what was that date of this petition?

    Robert N. Gorman:

    That petition was filed on December the 19th, 1952.

    Felix Frankfurter:

    Well, now look.

    In Judge Morris’s decree it takes note of the fact that there’s litigation pending in Ohio about property, there’s three innocent people.

    Robert N. Gorman:

    Partition action, yes.

    Felix Frankfurter:

    Well, there’s also the stocks and the bonds.

    This Court takes recognition of the fact that litigation is now pending in the State of Ohio relative toi determine the stocks and bonds as well as settlement for the matter.

    Robert N. Gorman:

    But that —

    Felix Frankfurter:

    Judge Morris had put it to you, I put it to you.

    Judge Morris may have said, indeed I think he did say in effect through the decree, this woman now, I — I — she’s been uncomfortable I think in good faith but whatever property she’d be sure to have is for Ohio to determine.

    Robert N. Gorman:

    But that —

    Felix Frankfurter:

    Now, that’s where she is and that’s why he is to make the personal appearance and that’s where the property is.

    Robert N. Gorman:

    But that petition that he refers to was not before the Court.

    Felix Frankfurter:

    What?

    Robert N. Gorman:

    That’s not before this Court.

    But this time, the action partition.

    As a matter of fact this —

    Felix Frankfurter:

    I’m not talking about the partition.

    I’m talking about this ground charge of the stock.

    Robert N. Gorman:

    There’s certainly nothing in there.

    Felix Frankfurter:

    That the Ohio court restricted itself in the disposition of that property.

    Robert N. Gorman:

    Well, that’s where we — you and I part company.

    I don’t read the decree there.

    Robert N. Gorman:

    I read the decree as if they denied her alimony, not on a question of property at all.

    And once it’s denied, the question is whether it’s res judicata and you go full faith and credit to it or can she file an action in Ohio and practically appeal it in a separate State?

    That’s what it amounts to.

    Now, that’s the question that I see here.

    Stanley Reed:

    Where — where was the site of his stocks, you find that the entry of the Florida decree.

    Robert N. Gorman:

    I think the site was — was in Florida.

    That’s my own opinion.

    He owned it.

    That’s where he paid taxes.

    Felix Frankfurter:

    (Inaudible)

    Robert N. Gorman:

    What is that?

    Felix Frankfurter:

    Physical — the physical site is to where?

    Robert N. Gorman:

    The physical site as was with her with unendorsed certificates.

    Felix Frankfurter:

    Where?

    Robert N. Gorman:

    In Ohio.

    The physical site as to the certificates was in Ohio.

    Stanley Reed:

    Well, the physical site is entitled, you think, was in Florida?

    The Florida title was no question.

    He had to pay taxes on it.

    They were unendorsed.

    They were in his name.

    I don’t think the fact that she takes the certificates and takes him to Ohio, gave the Ohio court jurisdiction because you immediately get to the proposition, well let’s take it away.

    And I don’t think it gives it by wrongful conversion.

    And that’s what the Florida court holds.

    I don’t think it gives Ohio court jurisdiction because, as I say, she purloins the certificate.

    Felix Frankfurter:

    Only if it had been endorsed by the Ohio —

    Stanley Reed:

    If they have been endorsed, that would be a different question.

    They were unendorsed entirely and he paid the taxes there.

    But what I say then again, if you can’t settle in any jurisdiction, then you have another problem.

    Let us take this thing.

    Stanley Reed:

    Supposed we’ve never get beyond, I suppose, beyond (Inaudible) which was filed many years later, after the original decree was granted.

    Suppose Mrs. Armstrong had not filed this suit four months afterwards.

    And you must remember the time that this decree was entered.

    She have not lived in Ohio a sufficient length of time to obtain a divorce.

    She did not have the residence requirements at the time this decree was granted.

    She could then wait 20 years.

    He might be remarried again.

    And she can still bring action because you would say, well there was no in personam jurisdiction in Florida.

    You’d never haved any stability.

    Your matters of migratory divorce come worse and worse.

    And it is — this is what I call is a step beyond Estin.

    And I don’t think, under those circumstances the doctrine of divisible divorce should apply.

    Now, we say that very frankly, because we believe that Florida had the dominant interest.

    They were married for 22 years.

    We say in addition to that, that she was served by publication in accordance with the Florida statutes, which were reasonably calculated to give her notice.

    That she actually did have notice.

    And she deliberately refuse to appear.

    Now, that is shown I mean by that exhibit as I said, on page 303, where she deliberately refused to appear.

    Now, what happens in raising this question?

    They raised the question by attempting to set aside both the Florida and the divorce decree (Inaudible) and the burden was on them.

    Now, I am going to be very frank.

    That this case entirely depends upon the question on whether or not there was due process.

    If there wasn’t due process, if there was not due process, say in Florida, then Ohio court ought to be affirmed.

    But if there was due process, if it satisfied the minimal demands, where the interest of Florida was dominant, it seems to me that there’s no question that Ohio owes the duty to give full faith and credit to the entire decree, and not just part of it.

    And we submit, Your Honors, on that matter, that this case should be reversed.

    We have brought up cases like May versus Anderson, which can readily be distinguished, because a decree for custody, is one that is purely ambulatory.

    There’s no finality to it.

    It could really be attacked in any jurisdiction.

    What — what about the finality of this decree of divorce and decree of no alimony?Assuming that was the decree in Florida, how final was that?

    Robert N. Gorman:

    You could only attack it if later there were changed circumstances.

    Robert N. Gorman:

    You could attack it then.

    She could go down in Florida and attack it and that’s, we claim where she should have.

    Stanley Reed:

    But she can attack it only under changed circumstances?

    Robert N. Gorman:

    Only under changed circumstances that, I know, to understand it all.

    If there were changed circumstances here, then an alimony decree might become ambulatory, unless it’s made it subject to agreement.

    Stanley Reed:

    Suppose she had that the Florida decree did not carry a decree of alimony and —

    Robert N. Gorman:

    Carried none at all?

    Stanley Reed:

    — carried none at all.

    Robert N. Gorman:

    Oh, I don’t it could — in that circumstances that the Court never pass on it.

    Question was sort to support rights which she’ll be open.

    Stanley Reed:

    Still be open.

    Robert N. Gorman:

    Why, I think there’s no question about the fact.

    As I say where Mr. Justice Frankfurter and I disagree is on the interpretation of that decree.

    Felix Frankfurter:

    Really was a conversation of the decree.

    Robert N. Gorman:

    Sir?

    Felix Frankfurter:

    There’s no one who will do or not.

    Robert N. Gorman:

    Well, I say it, it denies alimony.

    And I say that denial of alimony is not a question of whether there’s an interest in property or not.

    Now, that’s cutting off her rights.

    On other hand, where you have community property estates they have an interest in property.

    We have neither of those in Florida or in Ohio.

    We’re not concerned with that.

    Felix Frankfurter:

    Mr. Gorman.

    Robert N. Gorman:

    Yes.

    Felix Frankfurter:

    May I ask you this question?

    Robert N. Gorman:

    Sir.

    Felix Frankfurter:

    Would you think — do you think that your case this — these facts —

    Robert N. Gorman:

    Yes.

    Felix Frankfurter:

    — are any different or there’s no different legal questions come into play and would be the case if this decree, just as you have maybe when Mrs. Armstrong —

    Robert N. Gorman:

    Yes.

    Felix Frankfurter:

    — then goes into an Ohio court and asks for alimony.

    There’s no property, no physical property.

    The divorce says in Ohio but as for a decree of alimony, it didn’t say had on whatever findings that had to be found.

    Would you think if you try to mix, the two casea are the same?

    Robert N. Gorman:

    Identical.

    No question about it because as a matter of fact, let’s go off the record, if we can.

    In this particular decree I came in as of late.

    I came in at the time when the motion couldn’t try and when we argued Thompson case at great length, which I haven’t touched upon yet.

    Originally, Judge Bell wanted to award $75,000 in cash.

    That was his judgment.

    And they changed it to stock.

    So, it’s the same as if it was a money judgment.

    Felix Frankfurter:

    Not — not any kind of stock —

    Robert N. Gorman:

    Not any kind of stock just money.

    Felix Frankfurter:

    Yes.

    What I mean then but you say, they changed it to stock —

    Robert N. Gorman:

    Instead of money.

    Felix Frankfurter:

    — that they changed to this particular stock —

    Robert N. Gorman:

    They did.

    Felix Frankfurter:

    (Inaudible)

    Robert N. Gorman:

    That’s — that’s right.

    They changed it to a particular stock.

    But originally, he decreed and you will notice in Judge Bell’s —

    Felix Frankfurter:

    Now, we haven’t got that case before us.

    Robert N. Gorman:

    What is that?

    Felix Frankfurter:

    We have not that mere cash case before us.

    Robert N. Gorman:

    I think it’s a same.

    Felix Frankfurter:

    Well, that’s what I want to ask you.

    Robert N. Gorman:

    It’s identical.

    Because if we —

    Felix Frankfurter:

    If you say (Voice Overlap) —

    Robert N. Gorman:

    — voted Judge Bell’s decree, we will find in that decree, what he says in there, he calls it alimony.

    It’s not anything as division of property.

    So, the facts are identical.

    As your case is if it makes no difference.

    I don’t think Mr. Sibbald will argue that if whether he give it in cash or whether he give it in stock.

    We have the same facts, same identities.

    Felix Frankfurter:

    Both the decree is if he can give this woman X dollars each month?

    Robert N. Gorman:

    Would have the same thing.

    Felix Frankfurter:

    (Voice Overlap) — you think?

    Robert N. Gorman:

    Absolutely, no question about it.

    A question, I don’t think of the stock, the decree being in shares of stock has the slightest thing to do with it.

    Certainly not, I don’t think under the Ohio law, as you had the option to give it in cash or an option to give it in stock.

    As a matter of fact, the parties agreed on the stock.

    That’s the way it was given.

    Felix Frankfurter:

    Are there in cases in Ohio, situations like this in which the decree in a physical state, the denial of divorce or refusal to give divorce in the decree in — in the outside State and then a proceeding by an Ohio wife against a husband for alimony.

    Robert N. Gorman:

    Oh, I think they have.

    I don’t think there’s any question about that.

    There had been —

    Felix Frankfurter:

    There had been.

    Robert N. Gorman:

    Now, I think there probably have been.

    I couldn’t cite them off hand.

    The Slapp case in Ohio, 142 Ohio State is identical with Estin.

    The husband goes out to Nevada, that kind of a case.

    There’s an older case, the Cox case where they migrate between Indiana and Ohio.

    I don’t know of any particular where the husband was denied the divorce in a foreign jurisdiction and it came back.

    I think usually the case is where the husband is given a divorce and then they come back.

    But there again you’re going into the question of migration of leaving the matrimonial domicile.

    Now, I’m willing to concede one other point.

    In Thompson versus Thompson, there you have the case where alimony was denied in Virginia and the wife then went into — that’s 226 United States.

    Robert N. Gorman:

    The wife then went into District of Columbia.

    The District Court awarded her alimony.

    This Court said no.

    I suppose they could have put the decision on the District of Columbia’s ruling at that time.

    That alimony did not survive a divorce, just like in cases in Vermont, and recently being (Inaudible)

    But Justice Pitney did not do it on that ground.

    He did it on the basis of full faith and credit.

    Of course, if that was as still — still the law, this case would have to be reversed.

    Now, I’m willing to concede that since we have Estin versus Estin, that Thompson versus Thompson there might be some modification.

    But I take it will present a chaotic situation, if you’d overrule Thompson versus Thompson entirely.

    And that’s what you’d have to do here in order to maintain this decree.

    Now, as late as the Estin case you distinguished Thompson versus Thompson.

    But I think on there on the grounds of fault.

    And I see no reason to come on fault.

    My thing is this, that if being the matrimonial domicile, that Florida had the dominant interest, that she was given reasonable notice, she had actual notice and that satisfied the requirements of due process.

    And once it satisfied the requirements of due process, then full faith and credit have to be given to it.

    And I think we’ve come down to the final question, is whether were going to extend Milliken and Meyer and head first, will pull us, where a man just drives over the highway.

    If that gives a right for personal judgment, it certainly seems to me that the fact that people lived there for 22 years, that that State ought to have as much right as a State where the automobile is driven.

    Earl Warren:

    Mr. Sibbald.

    Walter K. Sibbald:

    May it please the Court.

    I have been in this litigation much longer than Judge Gorman.

    And perhaps, in some of the earlier stages of it I am more familiar than him.

    And because of that familiarity, I think it’s only fair to say that this litigation whether it be and means two divorce actions are in the two actions that were brought in Ohio to recover securities and other property or, if you please, in the partition action that all of this litigation has been for it has been had for the principal purpose of a trial to the right of property.

    These divorce sections are more or less are side issues.

    I ask the Court to remember that Mr. Armstrong is man who is now about 70 years of age.

    Mrs. Armstrong is about 63 years of age.

    The record bears me out that neither of them were particularly interested in divorce.

    Of course, neither of them have remarried.

    But they had gone through life accumulating a substantial estate.

    And as to the part of that estate, transfers had been made so that the properties were held jointly.

    Walter K. Sibbald:

    As to the stocks which the parties had accumulated, no such transfer had been made.

    Go back as early as 1941, it had been contemplated.

    And there had been some correspondence with General Motors principal officers about the transfer of General Motors stock to the joint names.

    That did not result in such a transfer because of the fact of these parties who, the record show, are inclined to be miserly both of them because of the expense involved.

    You know that cost them $35 or $40 for transfer stamps in these to have transferred this General Motors stock to them.

    So, they came down to about the year 1945, where they had gotten along fairly well together and had accumulated an estate that — back in those days may have amounted to as much as all $200,000 or $250,000.

    Then marital troubles came along, and I became for the first time, acquainted with this litigation.

    In the summer of 1948, the two of them, Mr. and Mrs. Armstrong, were living on their farm in Clermont County Ohio.

    And I may — If I may, to digress there for a moment and say, that all that Judge Gorman had said to you about matrimonial domicile is just his — his opinion as to where matrimonial domicile was.

    These parties had from many years, certainly since they returned from some fruit-growing project that they had jointly engaged in on the Isle of Pines, had lived during the winter months in a residence they had in Florida.

    And during the summer months in Ohio, had lived either in Hamilton County Ohio or in Clermont County Ohio where they maintained residences in Ohio.

    And that had gone on for years.

    I’ll come later to that question of matrimonial domicile but I want to interject that thought.

    Now, that in 1948, they were living in Hamilton County Ohio, residing there as they had for many years.

    Trouble arose between them and Armstrong hit his wife in the face with a butt-end of a revolver and broke out some of her teeth.

    And she left, and decided that she would not continue to live with him in Ohio or elsewhere.

    Now, I was consulted.

    And very shortly after that, Mrs. Armstrong took into her possession from safety deposit boxes in joint names and from bank accounts in joint names, substantial amounts of cash and the securities that subsequently became the subject of this litigation, together with some jewelry and some case that was in those boxes.

    Armstrong was notified at once, that she had taken that property into her possession for safekeeping until there could be an agreement between the two of them for a division of their holdings.

    And the record shows that he talked to me and was — he was advised to get himself a good lawyer and so that I’m with his wife and make that property settlement.

    An attempt was made in employing counsel, not the gentlemen who are here or who appear on these briefs but other counsel in Cincinnati at that time and an effort was made to bring about a property settlement.

    And they were very close to a settlement, satisfactory to both when they decided to go back together again and try it some more.

    And the lawyers were instructed to stop the litigations and that a reconciliation had been brought about.

    The record shows that Mrs. Armstrong at that time returned to their joint holdings, a very large part of the case that she had taken out of the boxes.

    She paid the attorneys fees on out of the funds that she had taken from these accounts, paid the attorneys fees on both sides.

    And they went back to living together, in a winter time in Florida, in the hot months in Florida in the North — in their properties in the North where they maintained this Northern residence.

    And time went on and it was again in a fall of 1950 that further difficulty came up between them.

    Armstrong in the meantime, the record shows, and as a part of his — his part of that reconciliation, had given to Mrs. Armstrong a written letter or a memorandum in which he acknowledged to her that his behavior in the past have not been what it should have been and in which he promised that he would not again misbehave.

    And in which he gave to Mrs. Armstrong the right to retain in her possession these securities and the bonds of the parties, the jewelry that was in controversy until such time as she saw fit to return it to the possession in which it was held on July 1st, 1948.

    Well, it — it was in October of 1950, that Armstrong again gave his wife a beating.

    Walter K. Sibbald:

    This time in Florida.

    Gave her such a beating, that she again determined that she could not and would not continue to live with him.

    And she left this Florida residence and returned, if we want to call it that, to Ohio.

    In any event, she came to Ohio.

    Now, the securities that are here in controversy and the other property, during that interval of time the record shows remained in Ohio, in her possession.

    Hugo L. Black:

    What’s the value?

    Walter K. Sibbald:

    I beg your pardon?

    Hugo L. Black:

    What is their value?

    Walter K. Sibbald:

    The jewelry is worth some both $6000 — $6000 or $7000 perhaps in jewelry.

    There was some — something perhaps in the neighborhood of $10,000 in cash and some e-bonds.

    Hugo L. Black:

    What’s that?

    What is the total value?

    Walter K. Sibbald:

    If I remember rightly, they were of $3500 face value.

    Hugo L. Black:

    Now, what’s the total value of all these property that you have in Ohio that is involved?

    That she had there would you say was — what was the —

    Walter K. Sibbald:

    I would say it was less than $20,000 outside the securities.

    Hugo L. Black:

    What’s the securities?

    What were they worth?

    Walter K. Sibbald:

    Well, they were more than General Motors Stocks and I — it’d be a little bit difficult for me —

    Hugo L. Black:

    But I just want get a (Voice Overlap) —

    Walter K. Sibbald:

    — to give you that answer because there were numerous other small holdings in stocks, that were not of large value.

    Hugo L. Black:

    Well, if you don’t know (Voice Overlap) —

    Walter K. Sibbald:

    I — I’m sorry.

    I do not have those figures.

    Hugo L. Black:

    The aggregate value of all these (Voice Overlap) —

    Walter K. Sibbald:

    Well, I — I would say as an — an aggregate figure that I would not very wrong if I said that the Florida, that the property that was in Florida was worth about $20,000.

    And everything that was in Ohio, back in 1950, would be worth let us say $180,000.

    It’s — the value as — as of those days.

    Hugo L. Black:

    If this — if this case was settled, what is the division?

    Walter K. Sibbald:

    Approximately, half and half.

    Walter K. Sibbald:

    Now, as I say Mrs. Armstrong returned to Ohio or came to Ohio in October of 19 — or November of 1950.

    Notice was given to General Motors Corporation that she held these certificates in her possession and claimed that an interest in them.

    General Motors Corporation, thereupon, notified Mr. Armstrong that such a claim had been made and told him that dividends would be withheld until that interest was determined.

    Then I got into correspondence with Mr. William Ward, Mr. Armstrong’s attorney (Inaudible)

    And the record shows we carried on the correspondence over a period of some weeks.

    Again attempting to make a settlement of the property rights of the parties that could not be agreed upon at that time and Mr. Ward notified me that his intention to bring on behalf of Mr. Armstrong an action for divorce in Florida.

    And I notified Mr. Ward on behalf of Mrs. Armstrong that she had determined, that she would not live further with her husband, that because of his ill treatment, she had determined to make her domicile separate from his.

    And that she would continue in the future to reside in Cincinnati where she had established her residence.

    Mr. Ward raised the question as to her right to do that.

    And I pointed out to him what I think was and thought then was the law and think today is the law, whether you consider from the standpoint of Ohio Law or Florida Law.

    Now, that a wife who has been guilty or has been — has suffered the ill treatment that Mrs. Armstrong suffered at the hands of her husband, had a right to leave him and establish a domicile of her own.

    Then Mr. Ward brought this action for a divorce in Florida.

    Mrs. Armstrong in order to bring an action for divorce in Ohio was required under Ohio statutes to live in Ohio for a period of one year before bringing her action.

    And as a result, the action in Florida for a divorce was filed, was pending, and the decree was granted before the expiration of the year, in which Mrs. Armstrong could sue for a divorce in Ohio.

    But in the mean time —

    Harold Burton:

    That is because she was then domicile at Florida before she went to Ohio’s Court.

    Walter K. Sibbald:

    Domicile in Ohio and in Florida because the two them had divided their time between —

    Harold Burton:

    (Inaudible)

    Walter K. Sibbald:

    I beg your pardon?

    Harold Burton:

    You said some time ago that you would rather take up the question of domicile.You think that makes any difference over the other?

    Walter K. Sibbald:

    I don’t think it makes any difference but I want it covered because that’s their argument, a matrimonial domicile.

    Harold Burton:

    But you — you just said, she has to wait for a year before she can bring a suit in Ohio.

    Walter K. Sibbald:

    She — that was a residence requirement.

    She had to be a resident of Ohio for a year before she could bring an action for a divorce.

    Harold Burton:

    You think it’s a distinction between the matrimonial domicile and the residence.

    Walter K. Sibbald:

    I make a distinction between domicile and residence.

    In other words, she could become a domicile —

    Harold Burton:

    Why did she have to wait for a year in Ohio — that she would — for matrimonial domicile within Ohio.

    Walter K. Sibbald:

    Because she had to be a resident of Ohio, had to actually live there.

    Harold Burton:

    Is there a difference between matrimonial domicile and residence?

    Walter K. Sibbald:

    Yes.

    I think there is.

    Harold Burton:

    And do you take the position that she was, that the matrimonial domicile was in Ohio?

    Walter K. Sibbald:

    I don’t know where it was, Your Honor.

    I don’t know and I don’t know today how you would determine where the matrimonial domicile of these parties was.

    I do know contrary to what Judge Gorman said a little bit ago, when he said that that argument, that matter was argued up fully on the motion for a new trial in this case that — and if it was I was asleep when it was argued because I never heard it argued.

    I do know that some question was at the very end of this litigation on the trial court, some references made to Thompson versus Thompson.

    And I remember Judge Bell who would finish hearing an argument but for a motion for a new trial, got up off the bench, started towards the room and tuned back and said to these gentlemen who were arguing the motion.

    Now, Judge Gorman, he wasn’t arguing — “What do you mean matrimonial domicile?

    These people were married in Cincinnati, they were natives here.

    They continued to live here, part of the year.

    What’s matrimonial domicile got to do with it now?”

    Now, that was the — that was all the argument I heard about matrimonial domicile.

    But getting back to the — to the matter of —

    But Mr. Sibbald —

    Walter K. Sibbald:

    — litigation that you inquire.

    — you don’t question the right of the husband to bring this divorce up in Florida, do you?

    There’s no (Voice Overlap) —

    Walter K. Sibbald:

    Under the Florida statute, all he had to show was he’d actually resided there and lived there for a period of 90-days.

    It showed that.

    He had actually been living and sleeping there in Florida for 90 days before he brought this action so there couldn’t be any question about that.

    And now getting to this other litigation.

    While this action for divorce was pending in Florida and before there was any decree in Florida, Mr. Armstrong brought another action in Ohio in which he sought to recover from Mrs. Armstrong the securities that are here in controversy, and the jewelry, and the cash.

    That action was pending.

    Judge Gorman said the only other litigation was a partition action.

    He is not correct in that.

    This — this action was pending throughout the divorce pendency in Florida, in which Mr. Armstrong was seeking to recover these securities from Mrs. Armstrong.

    And if Your Honors will look at page 22 of the record, you will find that when the court upon opening the clerk that morning said, “I see there are two cases here gentleman.

    Are they to be tried together?”

    And then the parties stipulated that they might be tried together and that the judgment in — would determine both cases.

    Walter K. Sibbald:

    Now, the two cases that he was talking about was this action of Mrs. Armstrong for a divorce and for a division of property, and the action which Mr. Armstrong had brought, seeking to recover from Mrs. Armstrong the property which she held in her possession.

    And the Court tried both of those cases upon the testimony in this record and under a stipulation that the order which she made would practically determine both cases.

    So, I am back to my original suggestion to Your Honors that this litigation throughout the time it has run, has been one that he has been largely a trial to the right of property with divorce action somewhat incidental.

    And that brings us to the points that I am making here, answering the gentleman on the other side in their claims.

    Is there such a case in Florida (Inaudible)

    Walter K. Sibbald:

    There was no second case in Florida, Your Honor.

    It was a second case in Ohio, a civil action in Ohio tried in addition to the divorce action in Ohio.

    There was only one case in Florida.

    Now, Mr. Armstrong got his decree in Florida.

    Mrs. Armstrong brought her action in Ohio and named the General Motors Corporation and the other companies whose stocks were in her possession, all of them as parties defendant.

    They’re not all brought on to the record here because the Court’s final order related only to General Motor stock and we have not carried up the names of those other issuers or other corporations who were made parties to her action.

    Now, under what theory did she join General Motors?

    Walter K. Sibbald:

    Under a state statue in Ohio.

    That in a divorce action, any party claiming any interest or having any interest in the property may be made a party defendant.

    I have copied that statute on page 3 of my brief, “A person or corporation having possession of, control of, or claiming any interest in property real or personal, out of which another seeks alimony may be made a party defendant.”

    I presume that is — that is so because it is a part of the general settlement of matrimonial difficulties that the divorce action is determined, the ownership of the property of the husband and wife.

    Walter K. Sibbald:

    That it may be.

    I — I would put a little bit — differing construction.

    (Inaudible)

    Walter K. Sibbald:

    Yes.

    I think that that statute, is what is used there largely in divorce matters to preclude the transfer of property until such time as the court’s made —

    But that it’s all within the —

    Walter K. Sibbald:

    Yes.

    — the one —

    Walter K. Sibbald:

    Yes.

    — one hour of determination.

    Walter K. Sibbald:

    Yes.

    But on the other hand, the statute is broad enough that it brings the corporation within the jurisdiction of the Court and makes that corporation responsible to obey any in order that the Court may make.

    So, Mrs. Armstrong when she joined —

    But she — she’s lost her divorce actually in Ohio.

    Walter K. Sibbald:

    Oh, yes — yes.

    When —

    What effect did that have, on the power to dispose the stock —

    Walter K. Sibbald:

    Then what if — then what if because under our law Slapp versus Slapp is the last word on that wherein the Court for any reason could not grant her a divorce and may otherwise make an order for alimony that the Court may, as a part of that alimony order make a division of property.

    That — that is the law of Ohio as I understand it.

    Even if no divorce is granted?

    Walter K. Sibbald:

    Even if no divorce is granted.

    The difference between support and maintenance?

    Walter K. Sibbald:

    I think that they would have a right to make a maintenance order.

    Perhaps so, but you — you say, they have a right to make an alimony (Voice Overlap) —

    Walter K. Sibbald:

    They have a right to make an alimony of it.

    — make a divorce?

    Walter K. Sibbald:

    Yes.

    Now, I pointed out in my brief and I don’t want to forget it in the time that I have left.

    That in Ohio, alimony it doesn’t promote the thing that we — ordinarily talk about a separate maintenance order and like that.

    Alimony in Ohio includes a division of property.

    In fact, our Court said that the right of the Court to make a division of property while it’s called alimony actually, is not alimony.

    That it is an exercise of the equitable jurisdiction of the Court and that alimony technically starts only where the Court makes some order on the husband to pay alimony out of his property.

    Not the part that’s jointly held but out of his share of the property.

    So, when Mrs. Armstrong’s petition was filed in Ohio, it was one in which we set up her equitable claim to a division of this property and sought an order against the corporations, requiring them to reissue that stock in such division as the Court equitably found the ownership to be.

    And that out of Mr. Armstrong’s share, after making that equitable division, that Mrs. Armstrong be allowed alimony.

    That was the — that was our petition and our amended petition and contrary to what Judge Gorman said, that I’m sure he had said it unintentional.

    Our petition was not one to set aside this Florida decree.

    There is nothing, no prayer that that decree be set aside.

    When I drew that original petition and the amended petition, I had in mind the possibility that this decree of divorce was not entitled to pay any credit because it had been obtained on false and fraudulent testimony.

    And for a time in this case, I presume that thought was subsequently amended because while I –I’m not so sure that — that we haven’t the right to pursue that question, I know that his Honor — Judge — Justice Frankfurter has referred to it at time or two in some of the opinions he’s written.

    The question may be somewhat an open one in this Court whether a decree or a judgment obtained upon fraudulent and false testimony going to the merits rather than to jurisdiction may — may not be entitled to full faith and credit.

    But I — I didn’t pursue that question beyond the — the trial question.

    Perhaps, beyond the Court of Appeals, I should say.

    But I did in that petition make one further claim, that I have made in each of the courts below and that I’m making here.

    Walter K. Sibbald:

    And I — and I think it’s one that presents a question that should excite this Court to consideration of it because it — it is of such importance that I had felt that at no time should I abandon it.

    And that is, that this decree was not entitled to pay some credit, any part of it because of the manner in which it was heard in Florida before a master commissioner who apparently was in the pay of the attorney for the Florida plaintiff.

    I want to come to that a little bit later.

    The case was entered.

    After a time, Mr. Armstrong entered his appearance and filed his answer.

    And in that answer, he pleaded that Florida divorce decree as res judicata of the right of the Ohio court to grant a divorce.

    And then, in his answer set up the facts on which he claimed that the Ohio court should not grant alimony to Mrs. Armstrong and should not make any division of property.

    At no place in that answer did he claim that this Florida decree had denied her alimony or that it was res judicata of her right to alimony and through out the trial of this case and until after judgment was entered in this case in the trial court, not one word was said, anywhere, by anybody, that this Florida decree was res judicata as to the right of Mrs. Armstrong to alimony.

    After the Court had heard the testimony, after he’d entered his decree, then a motion for a new trial was filed.

    And then for the first time, Judge Gorman came into the matter and we heard that Thompson versus Thompson raised upon the suggestion made to the Court that Judge Gorman had been — had been employed to take an appeal of the matter and would depend upon matrimonial domicile that the plaintiff’s, that the husband’s residence in Florida was the matrimonial domicile and that under Thompson versus Thompson the Court in Ohio could not grant her alimony.

    Now, there was no amendment of the pleading and no plea of res judicata, tendered it that time on and anytime prior to the actual appeal.

    But the matter went into the Court of Appeals or intermediate appellate court upon the theory that full faith and credit was a rule of law that precluded the Ohio court from granting alimony.

    Well, as — as I understand it, the Full Faith and Credit Clause presents a rule of evidence.

    Res judicata is a defense, may be injected in the case of law and equity.

    But the proof of that defense of res judicata may be made by the production of a record which if in good form, rendered by a court that had jurisdiction, must be given conclusive effect as proof of the defense of res judicata.

    That wasn’t done in this case.

    And since it wasn’t done in this case and has never been done in this case, I — I am suggesting in my brief, that there is no question here of full faith and credit preserved in the court below or in the courts below that give to this Court jurisdiction of a properly presented federal question.

    Stanley Reed:

    What — what kind of a decree did you get in Ohio?

    Did you get a division of property and then as against his property, a decree for alimony?

    Walter K. Sibbald:

    The Court made it all in one order, Your Honor.

    Allowed her to retain all of the cash that she still possessed that it originally been taken from the boxes in 48, the jewelry that was in her possession, the bonds that where in her possession, the bonds and 1250 shares of the $5 par value General Motors stock.

    Felix Frankfurter:

    Mr. Sibbald, may I ask you this question?

    I suppose it allowed the State, the issue was an issue of full faith and credit was intended, that’s the point?

    Walter K. Sibbald:

    That’s the point.

    It was intended.

    Felix Frankfurter:

    Well, now, you even have reconciled that provision with the stocks of your Ohio — the Ohio decree which you here supporting on page 17 of the record recognized the Florida decree because the Court was under compulsion is completely credible.

    Walter K. Sibbald:

    Oh, it was —

    Felix Frankfurter:

    And — and now (Voice Overlap) —

    Walter K. Sibbald:

    — the decree was tendered —

    Felix Frankfurter:

    — evidently — evidently, the — the compulsion — the compulsion, the amenability the duty of obedience of Ohio to hold the Florida decree was considered in respect to in part by the Ohio court.

    Walter K. Sibbald:

    I — I’m sorry.

    I haven’t made myself clear to Your Honor.

    Res judicata as to the diverse plea as to the granting of a divorce was pleaded.

    Felix Frankfurter:

    Well, what they declare as the decree is the pre-hearing, invoke, respect for the divorce or to the decree?

    Walter K. Sibbald:

    Or the divorce — or the divorce which —

    Felix Frankfurter:

    And that was simply, but you were no concerned with that (Inaudible)

    But that would answer the reference in the record support namely, that they merely said —

    Walter K. Sibbald:

    At the middle paragraph on page 8.

    Felix Frankfurter:

    — to take the support.

    Walter K. Sibbald:

    — of the record, transfer to the record.

    Said court granted an absolute divorce to this defendant from the plaintiff for which no appeal was taken.

    The same has become final and absolute and that by reason there plaintiff cannot maintain this action against said defendant for a divorce.

    And — and then in drawing the answer, counsel proceeds to make allegations of fact on which he says that the Court should not grant her alimony.

    But he had no place in his answer that says that that divorce decree denied her alimony or that it was res judicata against the claim which he was making in her amended petition.

    Stanley Reed:

    On the page 17 of the record, there’s that little paragraph, the Court denies divorce to your desire that on the ground that there had been a divorce in Florida, as I understand.

    Walter K. Sibbald:

    Yes, sir.

    That the plea of res judicata arising out of the Florida decree was well taken and that our clients, my client, go on to make testimony before the Court, was entitled to a divorce, could not have it because of the previous decree in Florida.

    Stanley Reed:

    And on the next page, after having declared that the Florida decree was valid in the 6th paragraph, they held that Mary R.Armstrong is entitled to alimony.

    Walter K. Sibbald:

    That’s right.

    Stanley Reed:

    Now, if — if the Florida decree is construed to determine the question of alimony then that this alimony would necessarily follow would it not?

    Walter K. Sibbald:

    If the Florida decree were to — to be determined as having — a –a court having had jurisdiction to pass upon that question and having actually passed on —

    Stanley Reed:

    The jurisdiction to pass on the divorce then.

    Walter K. Sibbald:

    Yes.

    Stanley Reed:

    That in your — and your higher courts said it there?

    Walter K. Sibbald:

    Yes.

    Stanley Reed:

    Now then, if it had jurisdiction to pass on the divorce then it had jurisdiction to pass on the right for alimony?

    Walter K. Sibbald:

    As we see it.

    No, Your Honor.

    Pardon for several —

    Stanley Reed:

    I’m not talking — I’m not talking about the ownership of property.

    Stanley Reed:

    I’m talking about the alimony that husband owes to the wife.

    Walter K. Sibbald:

    If we apply both Florida and Ohio law, my answer to that would be no because that was a personal right of hers.

    Stanley Reed:

    Well — well then, she’d lose that in the Florida divorce?

    Walter K. Sibbald:

    Not unless this Court should —

    Stanley Reed:

    Did she have a right to the General Motor stock.

    That — that’s what’s involved.

    Walter K. Sibbald:

    Not — not —

    Stanley Reed:

    What you called a few moments ago alimony?

    Walter K. Sibbald:

    If I may answer Your Honor’s question in this way.

    The Florida decree does not deprive her of a right to separate maintenance.

    Let’s call it that instead of alimony.

    Unless this Court should now or subsequently come to say, that a decree for divorce in an ex parte proceeding may terminate that personal right of a life to support which he subsequently attempts to invoke in a court — in another jurisdiction or in the same jurisdiction.

    Now, under Ohio law and under Florida law it does not terminate that personal right that she has.

    And that — well, there — there has been some cases as Judge Gorman said where some courts have held that that personal right has terminated.

    You had it before you in the Estin in one case.

    Pennsylvania offers, that the right to support is merely an incident of the marriage relation and is terminated by the granting of a decree.

    And you, at least, inferentially, and that he has said that the granting of a decree by a State having the domicile of the party seeking a divorce would under the Florida — under the Pennsylvania court, under the Pennsylvania law, since it did not survive against the right to support, did not survive that a full faith and credit would preclude the wife and subsequently seeking separate maintenance.

    Now, other courts have held differently.

    The most recent one and the most — well, presently, widely quoted one is the Hopson case in the Circuit Court of Appeals, District of Columbia that was decided in January of 1955.

    Now, where that courts sitting en banc, six of the eight judges concurring said that in applying Estin versus Estin to two cases that they have pending in that Court where wives are seeking to have — does have separate maintenance after the granting of decrees and other jurisdictions.

    They said that they make no distinction between a decree granted or a judgment for a separate maintenance granted before the decree in the foreign state and an action brought to secure a separate maintenance brought after the decree in the foreign state.

    But in Ohio —

    Stanley Reed:

    (Inaudible) that taken to this case to Florida after the decree has been entered in the case heard was free from further support and for the decision of this property of — makes you deal in Ohio.

    What would be the Florida law with that?

    Walter K. Sibbald:

    I think she would have a right to maintain her action.

    Stanley Reed:

    Well that’s — that’s the view of Pawley case?

    Walter K. Sibbald:

    In view of the Pawley case.

    Yes, sir.

    And as that Pawley case is directly down the line on it.

    And it is in accordance with other cases in Florida.

    Walter K. Sibbald:

    Because, say what you may about this decree whether it does or it does not grant or deny alimony.

    The law in Florida is and has been for all times, so far as I know, that a Florida court may not on constructive service grant alimony.

    That case that arose a number of years ago on another Ohio, an old doctor who lived in Ohio and got a divorce in Ohio.

    His wife lived down in Florida and got a divorce in Florida.

    And she sought subsequent to the granting of the or she sought in her action for a divorce to have the Court award her alimony upon constructive service.

    And the court, the lower courts granted that prayer for alimony.

    But the Florida Supreme Court had set to decide.

    That’s the case of Lucian versus Southern Ohio Savings Bank & Trust Company which is quoted in, I think, both briefs.

    But the —

    Stanley Reed:

    Are you familiar with Peacock case in Florida?

    Walter K. Sibbald:

    Yes, Your Honor.

    That’s one in which the Court said that it couldn’t — that — that Florida could not grant alimony on constructive search.

    But now, there’s another question that’s involved, in that.

    That I set out in my brief and then I think is equally, if not of greater importance.

    And that is, I know of no authority in Florida law or a court in Florida on the petition of a husband to deny the wife alimony in any case, except if possible that he is where the granting of a decree in and of itself, destroying as it does the marital ties would destroy an incident a marriage to wit, separate maintenance rights.

    But except as those rights are founded only in the right of support, I know of no case in Florida or anywhere else for that matter that authorizes any court upon the petition of a husband to enter a declaratory judgment, that his wife who hasn’t appeared and who hasn’t made any claim, is not entitled to alimony.

    I know Judge Gorman will say, “Oh, that’s what the Court said, decided in Thompson versus Thompson.”

    Well, it isn’t there.

    That was not decided in Thompson versus Thompson.

    Thomson versus Thompson was not actually a divorce case as we know divorces today.

    It was an action for a divorce, (Inaudible)

    It didn’t dissolve the marriage ties.

    Mrs. Thompson who was living over in the District of Columbia and Mr. Thompson who was living in Virginia both before and after that decree remained husband and wife.

    But under the law of Virginia as at existed at that time Mr. Thompson could go in and seek an order of a court which in effect would deny his right — his wife the right to sleep in his bed or to eat at his table.

    And that’s all he did.

    He got such an order from the court in Virginia.

    His wife subsequently, obtained the service of process on, even the District of Columbia and an action which she was a attempting to maintain for separate maintenance.

    And the ultimate decision in that case was that she could not maintain that action for a separate maintenance because under the law of Virginia, not what the Court said in that divorce decree but under the law of Virginia, a wife who was at fault could not have alimony.

    And I think that Mr. Justice Frankfurter in the Griffin case, that — that he reached the proper view of that case when he made reference to it and said that that case actually was decided, not upon a full faith and credit question involving a judgment but it was rather upon a conflict of law.

    The law of Virginia was, that she could not have support if she had left her husband.

    Walter K. Sibbald:

    Whereas, the law in the District of Columbia might well have been that she could have them.

    Now, when we started through the lower Appeals Courts, Judge Gorman depended entirely upon Thompson versus Thompson as his authority.

    When he said this is a matrimonial domicile and matrimonial domicile was in Florida and Ohio had no right to enter a judgment in favor of Mrs. Armstrong.

    And he maintained that position until, I think, he filed his reply brief in this Court.

    And then for the first time, he — he seems to stray away from that thought and to say that he places his dependance here, upon his claim that the proceedings in Florida gave to Mrs. Armstrong, due process of law.

    And therefore, they should be sustained.

    Well, now, while we’re on the subject of that due process as of law.

    There — there’s nothing on the record to show that you depended on any change of circumstances or anything that will justify a Florida court change in the (Inaudible)

    Walter K. Sibbald:

    Oh, no.

    We — we did not seek to attack the decree in this instance.

    I know, I — I understand that part.

    Nor to modify the alimony has failed in granting —

    Walter K. Sibbald:

    No.

    — it’s use there —

    Walter K. Sibbald:

    No.

    — because of the change of circumstances.

    Walter K. Sibbald:

    No.

    We depended upon Pawley versus Pawley as to the law of Florida, Slapp versus Slapp as to the law of Ohio for our claim that the Florida Court, if it had a right to grant her a divorce, could divorce — a right to grant him a divorce could divorce her.

    But it couldn’t deny her alimony because she was not within the jurisdiction of the Court, so far as her personal rights were concerned or her property rights.

    And in that connection, may I suggest one of the — Your Honors, asked Judge Gorman the question about the law of Ohio.

    When this Court decided the first Williams case, holding that it would recognize, and the Full Faith and Credit Clause the right of any court having jurisdiction of one of the parties who was properly domiciled, and granted divorce, that all other States should recognize but indicating that such could not apply to property rights.

    This court was not saying something it was new to what has long been the law of Ohio.

    Because in 1869, the Supreme Court of Ohio decided the very question, that has since, the decisions of this Court, referring to divisible divorce should come in to national prominence decided exactly as this Court has decided on that subject of divisible divorce.

    That Ohio would recognize the right of any other State having one of the parties domiciled in its boundaries to grant a divorce but would deny to that other State the right to have it’s jurisdiction extend beyond it’s boarders and affect property rights in Ohio.

    And through out the years, almost 80 years since that first case of Cox versus Cox in the 19th Ohio State was decided it has been the unbroken law of Ohio, that Ohio applies what has come to be called the rule of divisible divorce.

    That a divorce maybe granted to protect offspring or subsequent wives or innocent parties but it cannot be, it cannot have the effect of destroying property or personal rights.

    Now, one word if I may, in answer to the some of the things that was said by Judge Gorman and in answer to some of the questions of the Court about, what this Florida decree actually does.

    As I see it, it didn’t decide anything.

    And in that connection it should be read together with the master’s report.

    If Your Honors will look at page 243.

    Walter K. Sibbald:

    No, 244, at the middle paragraph.

    Now, this is the master’s report the question of the wife’s alimony, if any, cannot be determined that this stage of the proceeding.

    And then goes on to say, that she has in her possession these bonds and stocks, and money.

    In addition thereto, she has half interest in properties in the State of Ohio.

    So, the statements of Judge Gorman made that the reference in the Ohio — Florida courts was only to the partition action is not correct.

    I assume that this will be the subject matter of litigation in Ohio and that the properties position will be made by the courts of that State.

    And then, the final decree of the Court, which was entered the next day after that master’s report, was filed does not in anyway change that.

    It merely recognized as has been pointed out that this litigation was pending in Ohio and that the Ohio courts would have the right to make settlement of the property rights of the parties in Ohio.

    (Inaudible)

    Walter K. Sibbald:

    I — I take it that Your Honors, that it was made — it was put in there largely as a — a recognition that the Court couldn’t make any.

    I don’t see any other place that it would have in the case unless, it was put there purposely.

    As I have said in another branch in my brief, to create questions that would subsequently arise in Ohio.

    Because I think that both the master commission and Mr. William Ward who appeared as the attorney for the plaintiff in this case were fully cognizant for a fact.

    Now, that Florida courts had no jurisdiction to defy this property.

    Mrs. Armstrong was not before the Court, general Motors Corporation was not before the Court and the security themselves were not in Florida.

    Mr. Ward is a very — very good lawyer.

    And he’s a good strategist.

    And he knows this subject.

    He was counsel for Mrs. Pawley in the Pawley case.

    So, he was not unfamiliar with what he was doing.

    He was skirting all the way around this question in — in this proceeding — the — to —

    Earl Warren:

    We’ll — we’ll recess now, Mr. Sibbald.