Simons v. Miami Beach First National Bank

PETITIONER:Simons
RESPONDENT:Miami Beach First National Bank
LOCATION:United States Post Office and Courthouse

DOCKET NO.: 363
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: State appellate court

CITATION: 381 US 81 (1965)
ARGUED: Mar 10, 1965
DECIDED: May 03, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – March 10, 1965 in Simons v. Miami Beach First National Bank

Earl Warren:

Number 363, Lucy C. Simons, Petitioner, versus Miami Beach First National Bank.

Mr. Ward.

Robert C. Ward:

Mr. Chief Justice, may it please the Court.

This is a domestic relations case arising out of the question of whether or not the Florida courts are required to give full faith and credit to a New York separation decree in connection with the establishment of a widow’s right to dower subsequent to the entry of an ex parte divorce decree in the Florida courts.

As this Court is well aware, there’s no tendency for the solution to the problem of the domestic relations problems that arise in the United States.

And I think that each case must be taken and analyzed by reason and logic in order to reach a conclusion that’s fair to all of the parties.

William O. Douglas:

Counsel for that, do you mind if I state to you what my problem with your case is?

Robert C. Ward:

No sir.

William O. Douglas:

When did you present the federal — this federal question, this full faith and credit?

Robert C. Ward:

I think the problem has been presented at all stages of the proceedings, Your Honor.

William O. Douglas:

I wasn’t able to —

Robert C. Ward:

— the District Court of Appeals —

William O. Douglas:

I hope —

Robert C. Ward:

— and by the assignments of error.

William O. Douglas:

And I hope it was presented in the petition for rehearing before the Court of Appeals, but was that the first time?

Robert C. Ward:

No sir, I think it was presented in the original assignments of error.

It was before the lower court when the —

William O. Douglas:

Well, could you help — help me find those and — not this minute I say —

Robert C. Ward:

Yes sir.

William O. Douglas:

— but during the course of your argument.

Robert C. Ward:

Yes sir.

I think that the problem has arisen originally because the courts, not only the trial court, the District Court of Appeals, and the Supreme Court of Florida have failed to recognize the point that we attempt to assert.

They have in each instance decree that we were barred by reason of the fact that this point was not raised at the time the divorce suit was instituted.

The Florida courts have taken the position that is incumbent upon the nonresident wife to come into the State of Florida and to present this defense of res judicata or requiring the Florida Court to give full faith and credit to the New York separation decree at the time that the husband institutes the divorce proceeding.

And that she cannot wait until a subsequent date to make this presentation.

Potter Stewart:

My — my problem is this Mr. Ward, and again, I — I leave it to you that to answer in the course of your argument if you cannot right now but even if the wife had done that, then the Florida Court would have said, “Alright yes, you know you’ve told us about this separate — the separate maintenance decree, and we recognized it and we ordered the husband to keep paying you.”

Well, in fact that’s what did happened.

He did pay all his lifetime until his death.

And so, what — what would have been gained?

What more — what more could have been gained?

Robert C. Ward:

Well, what could have been gained, Your Honor, is the rights that have been established by the New York decree that the wife is — that this woman was to remain the wife of this man and to participate in his estate.

Potter Stewart:

I don’t understand that that was what that decree provided.

It provided separate — a legal separation and separate maintenance alimony.

It didn’t — it didn’t say you have to remain married to each other the rest of your lives.

Robert C. Ward:

No sir.

Potter Stewart:

And in New York, this could — this could have been followed by an absolute divorce, could it not?

Robert C. Ward:

On — by the wife or by the husband on separate grounds, not on the grounds that were adjudicated in this particular course of action.

And that is the point that we — we argue here.

As this Court is well aware, there is advanced distinction between a separate maintenance decree and a divorce decree.

There are rights that remain to the person receiving the benefit of that decree in a separation decree that do not remain after divorce decree.

And the basic and main right is not only the right to support but it’s the right to participate in the husband’s estate and to assert this dower right.

The inchoate right of dower remains when you grant a separation decree to a wife, she, in the eyes of the law remains the wife of that man but entitled to live separate and apart and upon his death has the right to participate in his estate by way of the inchoate right of dower attaching and become choate.

Arthur J. Goldberg:

You’re arguing that Mr. Simons (Inaudible)

Robert C. Ward:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

Robert C. Ward:

Well, Your Honor, from the outset Mr. Justice Goldberg, let me explain this.

We do not take the position and I think we cannot on the state of this record that the Florida Court did not in fact have jurisdiction to enter the divorce decree because that is based upon the disputed issue of fact which was resolved against us.

Our position —

Arthur J. Goldberg:

(Inaudible)

Robert C. Ward:

No sir.

Arthur J. Goldberg:

(Inaudible)

Robert C. Ward:

Yes sir.

Arthur J. Goldberg:

In other words, the lower court includes the (Inaudible) leaving you the rest of the standard here.

Robert C. Ward:

Yes sir.

Arthur J. Goldberg:

Is that true?

Robert C. Ward:

Yes sir.

Arthur J. Goldberg:

Court of Appeals never decided that.

Robert C. Ward:

No sir.

Arthur J. Goldberg:

Whether (Inaudible)

Robert C. Ward:

No sir.

Arthur J. Goldberg:

In other words, in order for us to reach (Inaudible) it’s necessary for us to decide the residence question.

Robert C. Ward:

That’s correct, sir.

Arthur J. Goldberg:

(Inaudible) in the court remain disputed.

Robert C. Ward:

That’s right.

We disputed that and lost it.

Arthur J. Goldberg:

Now, the facts have been adjudicated in here.

Robert C. Ward:

That’s correct.

Arthur J. Goldberg:

(Inaudible)

Robert C. Ward:

Yes sir.

Arthur J. Goldberg:

Now, the (Inaudible)

Robert C. Ward:

No sir.

Not insofar as it affects — it affects marital status.

I might point out at this point that the sole basis of the argument of the petitioner here is based upon this Court’s decisions in the Estin versus Estin case and later in this Armstrong case and the Vanderbilt case, the theory of divisible divorce.

We do not contend here that insofar as this man was concerned, Mr. Simon, that Florida did not have a right to affect his marital status insofar as it affected society and affected his rights to — to remarry or to live with another woman or to this — that this decree could in anyway illegitimatize, if there is such a word, his children, if he had remarried.

We don’t have that case here.

He did not remarried but I — we do not attack the — the marital status as established by this Court in distinguishing indivisible divorce, in distinguishing between marital status on one — one side and on the other side the property rights of the wife.

The point we raise is this, is in New York with both people there, these people were married in New York.

They remained residents of New York.

They had a very hotly contested New York litigation which is shown by the decree in the record, wherein the court in New York found that the husband had been guilty of extreme cruelty towards the wife or cruelty and inhuman treatment.

And that therefore, she was entitled to live separate or apart from him.

And that she was entitled to receive support from him.

Now, inherent in that decree is also the proposition that she was entitled insofar as her property rights were concerned to remain his wife so that she would be entitled upon his death to assert a dower claim if he wrote her out of his will.

Now with —

William J. Brennan, Jr.:

It’s not the same.

The jurisdiction of the Florida Court entered the divorce proceeding, terminating the marriage.

Robert C. Ward:

Yes sir.

William J. Brennan, Jr.:

That nevertheless, he was sufficiently obliged, so that is — that she would assert a dower.

Robert C. Ward:

Yes sir, she was of that same sufficiently his wife to assert the dower claim as this Court has ruled, she had sufficiently his wife to assert an alimony claim subsequent to an ex parte —

Byron R. White:

Are you saying that the Court had jurisdiction to grant — jurisdiction of the case now in Court, and they made a mistake in granting the divorce.

Robert C. Ward:

No sir.

Byron R. White:

Well, I thought you — I thought you said they weren’t entitled to grant the divorce in that jurisdiction but they made a mistake, namely they didn’t — they — they shouldn’t have granted a divorce on the ground they did.

Robert C. Ward:

No, Mr. — I’d say this.

That is —

Byron R. White:

But a while ago, you said a while ago that the Florida Court was not entitled to grant a divorce on the ground that it used because that ground was precluded by the — by the New York —

Robert C. Ward:

That is correct, insofar as it affected her marital rights.

That’s correct.

Insofar as it affected her —

Hugo L. Black:

But you did it insofar that it affected her property rights.

Robert C. Ward:

Property rights, yes sir.

Hugo L. Black:

You’re claiming that they have a right to sever the relationship of husband and wife per se.

Robert C. Ward:

Yes sir.

Hugo L. Black:

But the other statement is to give full faith and credit to any property judgment.

Robert C. Ward:

That’s correct.

Hugo L. Black:

Whether they — whether they would have to give it to the separation or not.

Robert C. Ward:

I’m saying this, Your Honor, that insofar as Florida is concerned and we’re not here concerned with whether New York would have to give full faith and credit to the Florida decree at all, that was not involved.

What I’m saying is this, is that New York has decreed on a — or these two people had their day in court in New York and — and the — the decree was rendered against the husband.

It was found that he was at fault and therefore the wife had the right to live separate and apart from him.

Now, if he subsequently goes to Florida, and under this Court’s theory on the Estin cases and in those other cases.

He can go down there and you have said that Florida has the right because he’s a domicile.

They have the right to — to change his marital status, so that in the betterment of society and in the betterment of family relations that his children would be legitimate if he remarried, and that sort of thing, that Florida has the right to do that.

But that that would not affect the wife’s or the former wife’s rights who lives in another state insofar as alimony or her property rights.

William J. Brennan, Jr.:

But now what — I just want to make sure I understand you correctly.

The — after that far a divorce could be, the husband is free to remarry without being — being bigamous under United States court.

Robert C. Ward:

I would assume so, yes sir.

William J. Brennan, Jr.:

What you — what you’re saying is that he — his first wife was still sufficiently his wife that that continued her right to assert dower on his death.

Robert C. Ward:

That property right, yes, the same that she has the property right to assert — to make him pay alimony.

William J. Brennan, Jr.:

Because he’s not his wife, (Voice Overlap) of — of fining him if remarry, guilty of any crime, but she is his wife sufficiently have retained whatever property rights you say she’s got.

Robert C. Ward:

She has retained her property rights —

Hugo L. Black:

How do you let yourself get into that situation, sufficiently his wife —

Robert C. Ward:

Well, I know —

Hugo L. Black:

Does she had to be sufficiently his wife and does she — might she have the right because of the law whether she’s his wife or not his wife.

Robert C. Ward:

I would agree with you, Justice Black.

I don’t think it’s sufficiently, following Justice Brennan’s remarks, I was just answering him but I — I say this, you got to separate which this Court did by their ruling in Estin v. Estin.

You got to separate it.

William O. Douglas:

Estin was the case where — is that a court decree if taken literally would have wiped out the prior New York alimony decree.

Robert C. Ward:

That’s correct.

William O. Douglas:

And there’s no prior New York decree of any kind that would be affected by here or by anything that Florida did.

Robert C. Ward:

Yes sir.

There is the prior New —

William O. Douglas:

So that Estin was — is merely an illustration of your point but it isn’t quite applicable.

Robert C. Ward:

No sir.

I don’t say that it’s 100% applicable.

You must start from the theory that there is such thing as divisible divorce which this Court has announced.

William J. Brennan, Jr.:

But Mr. — Mr. Ward, certainly, (Inaudible) first year of the lawsuit, that dower is a right that’s attached to surviving widows, isn’t it?

Now, what you’re talking about here is that dower arrangements.

Robert C. Ward:

Yes sir.

William J. Brennan, Jr.:

Alright.

Robert C. Ward:

And what I’m talking about is that —

William J. Brennan, Jr.:

And when they say sufficiently his, wife I don’t think it’s — I don’t think it’s an act of (Voice Overlap).

Robert C. Ward:

What I’m — what I am talking about is that the New York court has decreed in a litigated two-party proceeding where both people who were before the Court, that this woman was entitled to live separate and apart from this man and that he wasn’t entitled to live separate and apart from her or to get a divorce from her.

Now, the question is —

William J. Brennan, Jr.:

But did that touch do — dower interest, that New York decree?

Robert C. Ward:

Inherently, yes sir because inherently it is said that she has the right to live separate and apart from him but — and — and to receive support from him but she has the right to re — if nothing else would have happened, if this divorce hadn’t been entered, she would have obviously had the right to assert a dower claim against his estate.

Potter Stewart:

But there was nothing in that decree that said, “Neither one of you can ever bring suit for divorce?”

Robert C. Ward:

No sir, I don’t think not —

Potter Stewart:

There was nothing in there saying, “You have to stay married to each other until the first one of you dies?”

Robert C. Ward:

No sir.

Potter Stewart:

Well that’s — so since there wasn’t, then that could have been followed as it was followed by a divorce.

Robert C. Ward:

It could have been if it was based upon different grounds.

Byron R. White:

Well, this is what I asked you a while ago.

Byron R. White:

I thought you answered me it didn’t make any difference what the grounds —

Robert C. Ward:

No.

Byron R. White:

— which is by the lower court.

Robert C. Ward:

No, Justice White.

I don’t want to answer that question.

The question is that he tried to and got a divorce in Florida off on grounds that were the same as those that had already been adjudicated in New York and I say he can’t do that.

Byron R. White:

So Florida — the Florida Court should not have granted a divorce on those grounds.

That —

Robert C. Ward:

That’s correct.

Byron R. White:

Well, that’s exactly — that’s absolutely contrary to what you’ve said a while ago to me.

Robert C. Ward:

No sir.

I don’t — I’m talking about —

Byron R. White:

Well, should or should not the Florida Court have granted a divorce from the grounds that it did?

Robert C. Ward:

I think originally if she would have gone in —

Byron R. White:

Well, how about if you answer the question, should it — should it have granted a divorce from the grounds that it did or not.

Robert C. Ward:

No.

Byron R. White:

Those grounds were not available to the New York or Florida Court.

Robert C. Ward:

They had been adjudicated by the New York separation decree.

Byron R. White:

Well then, there was no divorce.

Robert C. Ward:

If you take it that far, yes.

Byron R. White:

This full faith and credit ground is good.

Robert C. Ward:

It was res jud —

Byron R. White:

That there was no divorce.

Robert C. Ward:

It was res judicata on the issues presented to the Florida Court.

Byron R. White:

And the full faith and credit?

Robert C. Ward:

Yes sir.

Byron R. White:

And so there was no divorce?

Robert C. Ward:

That’s correct.

Byron R. White:

Is that your point here?

Robert C. Ward:

Yes sir.

Earl Warren:

Does your case depend on this finding with you on that point?

Robert C. Ward:

Well Your Honor, my case depends upon this Court extending the doctrine of divisible divorce to determine what Florida did was this, they have ruled that this woman cannot later, after this man dies and when this right of dower then becomes choate cannot come in and assert the New York decree.

Earl Warren:

I understand that.

What I was — what I was wondering is, does your case depend on the answer you just gave to Justice White namely that this was — was not a proper divorce?

Robert C. Ward:

It was not a proper divorce insofar as it affected her property rights in her husband’s estate.

Byron R. White:

But he would still be bigamist when he remarry?

Robert C. Ward:

If you recognized the doctrine of divisible divorce, no sir.

Byron R. White:

Well yes, but you’re saying that this ground was not available before the Court to use it as — as a divorce.

That the ground had been adjudicated in New York that he was entitled to use that ground.

Robert C. Ward:

That’s right.

Byron R. White:

And if the Florida Court shouldn’t have entered a decree at all.

Robert C. Ward:

That’s right.

Byron R. White:

Would you tell them they shouldn’t have entered — entered a decree?

Robert C. Ward:

No sir.

Byron R. White:

That if a counsel have — did — did you say to the — the Florida courts that this ground was unavailable on res judicata in full faith and credit ground?

Robert C. Ward:

That was what was asserted in this last suit that’s before the Court now.

And the Florida Court did not rule that it was a res judicata or did not rule on the fact that whether it was or was not.

They said that it wasn’t available.

That this was a defense that this woman had to present at the time the divorce suit was filed, and I say that’s wrong.

Byron R. White:

And so you didn’t — and — and you didn’t commit on that divorce suit at all, did you?

Robert C. Ward:

No sir.

Byron R. White:

And which was your — but you concede there was residence.

Robert C. Ward:

On the disputed issues, I can — I don’t — I cannot dispute it.

No sir on the finding of disputed fact as contained in the record.

Arthur J. Goldberg:

Assuming the court has jurisdiction, it got waiver of full faith and credit ground, could it come to that court and assert your —

Robert C. Ward:

I don’t believe so —

Arthur J. Goldberg:

(Inaudible) with the Court having jurisdiction lost it, and suddenly here you got ruled.

In other words, this Court or Florida Court was acting upon the divorce suit.

Robert C. Ward:

That’s correct.

Arthur J. Goldberg:

You’d have jurisdiction with the man with the residence.

Robert C. Ward:

That’s correct.

Arthur J. Goldberg:

(Inaudible)

Robert C. Ward:

That’s correct.

Arthur J. Goldberg:

(Inaudible)

Robert C. Ward:

The Court had no knowledge of it, that’s correct.

Arthur J. Goldberg:

(Inaudible)

Robert C. Ward:

Right.

Arthur J. Goldberg:

Possibly.

Robert C. Ward:

Right.

Arthur J. Goldberg:

The man of residence.

Robert C. Ward:

Yes sir.

Arthur J. Goldberg:

Your argument in this Court is that the full faith and credit was on the Constitution here, divorce attacked upon their judgment of any kind, you know the court has jurisdiction (Inaudible) in the statute and the facts of it has been (Inaudible)

Robert C. Ward:

Insofar as it asserts a right that was not adjudicated by the Florida Court.

And that is the property right of the wife to claim dower in his estate, the same as it flowed out into the alimony right.

Arthur J. Goldberg:

That’s an assumption.

Many divorce is granted by a court residence jurisdiction and it has certain property principles under Florida law.

Robert C. Ward:

That’s correct.

Arthur J. Goldberg:

Assuming Florida law is that (Inaudible)that if you get a divorce, the property is cut off the way it’s done.

Robert C. Ward:

That’s correct.

Arthur J. Goldberg:

Well, don’t you have any explicit adjudication in Florida?

Robert C. Ward:

No sir.

Not when she didn’t appear anymore than her alimony rights were cut off, her property rights could have been determined by an ex parte proceeding.

Potter Stewart:

Well, Estin against Estin says that, if I understand it, that Florida couldn’t have cut off the separate maintenance payments and that Florida could in fact was silent, the Florida Court didn’t know about that New York.

But in fact those separate maintenance payments were made throughout the life of the husband.

Robert C. Ward:

Yes sir.

Potter Stewart:

So that would satisfy the Estin case in the other two Vanderbilt and the other one.

Isn’t that correct?

Robert C. Ward:

That’s correct.

Yes sir, as far as they could.

Potter Stewart:

And that — and the Florida Court granted a — an absolute divorce, that settled the question of dower because only a will gets dowers, isn’t that correct?

Robert C. Ward:

Well, it didn’t settle anymore than the New York Court settled it because the New York Court had said —

Potter Stewart:

That wasn’t — that question wasn’t before the New York Court.

Robert C. Ward:

Well —

Potter Stewart:

Dower — the question of dower only arises after the husband dies.

The — that he has to be somebody’s husband for — for because it’s only the wife who gets dower, isn’t that right?

Robert C. Ward:

But — but if one court establishes in a — in an adversary proceeding, her right to remain a wife and to assert this right in an adversary proceeding, the question is, can another court based upon the same set of facts on an ex parte proceeding take that right away from her?

Potter Stewart:

I didn’t understand that the — that’s what because of a continuing trouble, if the New York Court had decided that she had a permanent right to remain his wife.

Robert C. Ward:

On the set of fact that was —

Potter Stewart:

That court decided was that she had a right to be separated from him and to get payments from him.

Robert C. Ward:

That’s right.

Potter Stewart:

Not that she had a right to remain his wife.

It might be a different case if he had brought a divorce and she had defended successfully then the Court would have decided the husband has no right to a divorce and as of now, you, as his wife, have a right to be married to him.

But that wasn’t that kind of a decree.

Robert C. Ward:

It was the kind of decree that she sued for separate maintenance.

And he in turn defended it on a set of facts which were ruled against it.

And I’d say that under those circumstances, it’s the same as this.

If Court A with both parties before him rules on a point, it set the facts as presented to point A or to Court A.

And Court A rules on them one way.

The same sets of facts were presented to Court B in an ex parte proceeding.

And the Court rules differently than Court A did.

Now, you have two judgments.

You have a judgment of Court A and a judgment of Court B.

Now, if court — if this is presented — and that’s all that happened here was when this woman and when this woman presented her claim for dower in the Florida courts, the Florida courts was faced with this and this is the simplification of the problem.

They had a judgment in Court A and a judgment in Court B.

Now, which one do they recognize?

Byron R. White:

Yes, but the judgment in Court B — Court B, the court has jurisdiction.

You admit there were (Inaudible)

You had noticed in the proceeding, was not here litigated.

The lower court decided that you may have had the defense if that — in a divorce — in a divorce case.

Isn’t it not (Inaudible)

Robert C. Ward:

That’s right.

Byron R. White:

Once that agreement is being entered in the case, you might — you may be bound by res judicata.

Robert C. Ward:

Well, how can we be bound by res judicata in a —

Earl Warren:

You may answer that after — after recess.

Mr. Ward, you may continue your argument.

Robert C. Ward:

Thank you, Mr. Chief Justice.

I might in the beginning answer, Mr. Justice Douglas’ question as to where this constitutional question is raised in the record on page 10 of the record and then in the complaint, the original complaint, and in the original assignments of error to the District Court of Appeals, Third District of Florida on page 318 of the record, one of the assignments of error is covered by the full faith and credit.

I think, to conclude my opening presentation, the question presented here is when if we assume first that if this New York decree, and I think we must assume that for the purposes of this argument —

Hugo L. Black:

Would you mind — would you mind telling me in very short framing, just precisely what that decree was.

Robert C. Ward:

It was a decree of separate maintenance awarded to the wife decreeing that the husband had been guilty of extreme cruelty, cruel and inhuman punishment or treatment to the wife and that she was entitled to live separate and apart from him and to receive from him, I think it was $400 a month that the appellant court ult — ultimately set as alimony or separate maintenance.

It’s what the decree, the New York decree actually provided.

Hugo L. Black:

Which point of it are you relying?

Robert C. Ward:

I’m relying upon the determination by the New York Court of the issues before it, that is who was guilty of extreme cruelty to whom because the decree in the Florida Court filed by the husband was also based —

Hugo L. Black:

What difference would that make on your point?

Robert C. Ward:

Well, it would make this different that if — if — that if the decree in New York had not been based upon the same ground as the Florida decree then Florida decree would not in — in this instance, the New York decree would not been entitled to full faith and credit under the decisions of this Court and — and most every court.

The only theory upon which we advance this is that the adjudication that this divorce that was granted the husband in Florida was based upon a factual situation that had already been presented to the New York Court and ruled adversely.

Hugo L. Black:

Well, are you attacking a divorce on that, do you?

Robert C. Ward:

I’m attacking the divorce insofar as it’s enforceability against the wife to affect her dower rights.

The question becomes this —

Hugo L. Black:

If — your —

Robert C. Ward:

When —

Hugo L. Black:

— claim is based fully on dower.

Robert C. Ward:

Yes sir, her property right to participate in this man’s estate.

Hugo L. Black:

Was the district glad that you would be entitled to dower rights, the New York judgment?

Robert C. Ward:

No sir, it would — it would flow from it as long as they remain husband and wife.

Hugo L. Black:

What if they remain husband and wife at trial?

Robert C. Ward:

But as long as they are never separated for cause that’s created by the wife and as long as the grounds upon which the — the Florida decree was based, it had already been ruled upon adversely to the husband.

Hugo L. Black:

You’re treating this just exactly as though it was a judgment made the New York Court, the litigation between the husband and wife.

But she claimed that he owed her a certain amount of money as I gather and to get a definite judgment for certain amount of money for certain length of time, is that it?

Robert C. Ward:

No sir, not completely.

Robert C. Ward:

My — my — the whole basis of the suit here is based upon the fact that the New York decree is res judicata as to the issues that were framed in the Florida divorce action.

Hugo L. Black:

Well if that’s true that would bar a divorce somewhere, couldn’t it or would it?

And you’re —

Robert C. Ward:

Yes sir.

It would bar a divorce on those grounds.

Now, the question arises, when must the wife assert this New York decree in order to preserve her rights to participate in the husband’s estate, the dower?

Obviously, in this case, if she’s represented it, we assume that if she’s represented it at the time that the husband filed a suit for divorce in Florida and the Florida courts had — had recognized it and — and said, “Yes, the New York decree is res judicata on the issues of extreme cruelty.”

Then in that instance, the husband’s divorce would have been denied and she would have remained obviously as his wife and been entitled upon his death to participate in his estate as dower.

Now, if the wife does not appear in the Florida proceedings, can she later assert that same decree and is the Florida Court required to give it full faith and credit in relation to asserting her claim to participate in the husband’s estate on the grounds that she — on the dower questions which has never been decreed.

Do you — do you want us to decide this case on the premise that the Florida Court had jurisdiction over the divorce proceeding?

Robert C. Ward:

I cannot take any other position under the state of the record.

The Florida Court has twice ruled it had jurisdiction over Mr. Simon once in the original divorce decree and once initiates on this record on the disputed question of fact.

So I’m — I’m therefore —

Well, the Court of Appeals didn’t go on their premise?

Robert C. Ward:

No sir, the Court of Appeals went on the premise that it was too late for this woman —

The premise that it didn’t make any difference whether the decree with — where — whether Florida Court had jurisdiction or not that it was irrelevant.

Robert C. Ward:

They went on the premise that it was too late for this woman to plead this New York decree to — to — to assert her rights.

That’s what they did.

They said that — that this — that now, that — that her only occasion to protect her rights, her dower rights, her only occasion to assert that right and protect that right was when this husband, after leaving the State of New York and going to the State of Florida, and instituting a divorce suit in Florida by which he searched her constructively that she is required to then sojourn herself to Florida which is a foreign jurisdiction to her completely, never having resided there that she must then go to Florida and defend herself.

And if she doesn’t, she’s forever barred and this New York decree means nothing.

So therefore, the husband, by reason of this sojourning around the United States can obtain an advantage over the wife on a matter that’s already been litigated in New York.

And that’s the question.

Arthur J. Goldberg:

Well, if the husband was domiciliary of Florida, why doesn’t she have to go into the proceeding?

Robert C. Ward:

To protects a right that’s already been decided in her favor in New York, I don’t think that she has to go all over the United States.

It’s for — it would make no difference under the doctrine going back to divisible divorce of his marital status as such insofar as his rights to not be prosecuted for bigamy such as was involved in Williams versus North Carolina in those cases.

And his obligations to society in his — whether or not subsequent children of a marriage of his would be legitimate.

Arthur J. Goldberg:

Mr. Warden let me ask you.

Take this hypothetical.

Suppose that I am sued for a thousand dollars on a loan, I denied that I owed the money.

The Court decided to do it in my favor, the Court in New York, it says in the New York Court.

Arthur J. Goldberg:

New York Court says that I don’t owe the money.

The plaintiff in the case is in Nevada, goes to Nevada.

I happen to be on vacation.

He summons his hand and then he sued me again for the thousand dollars.

Can I tell that to summons’ up?

Robert C. Ward:

No sir.

Arthur J. Goldberg:

Or must I not appear in that action then and plead res judicata?

Robert C. Ward:

No sir because you were personally served in Nevada.

Arthur J. Goldberg:

Yes.

Robert C. Ward:

That’s the distinction in this case.

Arthur J. Goldberg:

Now, that’s the distinction.

But once you concede that the husband acquired a domicile and that the Florida Court has jurisdiction in a divorce action where a party has domicile over the action, if it has jurisdiction over the status of the marriage, then the substitute service is permissible.

Robert C. Ward:

Insofar as it — as it affects marital status.

But this Court has ruled that — that that doesn’t require the wife to appear and assert her alimony rights or right to support, her right to maintenance or property rights under Pennoyer versus Neff.

And that’s — that’s my distinction.

I’m merely asking the Court to follow the same distinction that they followed in these other cases.

That this is a property right and it is a vested property right by the New York decree if the Florida decree is based upon the same facts.

And we must analyze this case from the facts in the record, not as a broad general principle but as the facts are presented here on whether or not this decree is entitled to the full faith and credit.

It forms — it comes down to this.

When must this woman — when is this woman required to assert this New York decree in order to protect her rights to participate in her husband’s estate.

If you say that she must sojourn herself around the United States and follow this husband and that — and in order to protect her rights, then I have no standing.

If you say as you did in the — as I interpret the Estin cases and the Armstrong case, and the Vanderbilt case, if you say no that there is such a thing as divisible divorce, that — that the husband can get a divorce insofar that it affects his social obligations but it does not affect the wife’s property rights, then my client has preserved this right to assert this New York decree insofar as asserting her dower rights.

And that seems logical because dower in of itself is in — inchoate.

She would have no right to sue in any court or sue him in Florida as long as he was alive.

Her rights to dower only arise and become choate and become enforceable if she survives this man.

William J. Brennan, Jr.:

And if remained wife until his death.

Robert C. Ward:

Correct.

William J. Brennan, Jr.:

Now assuming that’s the ruling —

Robert C. Ward:

Well this is —

William J. Brennan, Jr.:

How does the wife (Voice Overlap) —

Robert C. Ward:

She comes in and —

William J. Brennan, Jr.:

— that he does have a standing before his dower under (Voice Overlap)

Robert C. Ward:

No sir.

William J. Brennan, Jr.:

— the law.

Robert C. Ward:

She comes in into the Florida courts and asserts that she is her — his wife.

The — the executors —

William J. Brennan, Jr.:

As I understand it, she’s — he’s as — as on the premise that you —

Robert C. Ward:

She —

William J. Brennan, Jr.:

Now, tell us whether we should decide this case on mainly that Florida had jurisdiction to give the husband a divorce.

She comes in and asserts only that.

He’s entitled to dower although she’s not his wife.

Robert C. Ward:

And they — she comes in and asserts her right to dower.

The executor of the estate comes in and pleads the Florida divorce decree and claims that that is res judicata of the issues that whether or not she’s entitled to dower.

William J. Brennan, Jr.:

On the ground that because of the Florida divorce decree she’s not his wife on his death and therefore not entitled to dower.

Robert C. Ward:

Right.

Then she comes back and pleads the New York separate maintenance decree that says that that’s res judicata on the issues they were presented in the divorce case.

And therefore, she is entitled to dower.

Now, you must assume that the New York decree was res judicata on the issues that were in the subsequent divorce decree.

And that’s what I say is the whole gist of this case.

That she has the right, she can’t be barred by an ex parte proceeding on a husband.

She won once in court does she have to chase this man all over the United States defending this right.

Or can she wait until that arises and assert it?

And can the Florida Court, when she — when the right ones arises, and then it only arises when this husband dies, so long as he continues to pay the support payments, she has no right of action against him.

But when this right arises, that she asserts yes under the fact, I’m this man’s — I have a property right in his estate.

William J. Brennan, Jr.:

It’s one way of saying, I’m this man’s wife.

Now, you see, it’s that missing step where I have trouble calling you.

Robert C. Ward:

Well, you must — you must take the position that her — her rights to participate in the husband’s estate have never been adjudicated in the — in the ex parte divorce proceeding anymore than her rights to support from the husband.

And that’s why I say to the Court that that issue that we are entitled to plead that New York decree in order to establish that right.

Marion E. Sibley:

Mr. Chief Justice —

Earl Warren:

Mr. Sibley.

Marion E. Sibley:

Justices of the Supreme Court of the United States, I have with me, my partner, Mr. Irwin Levenson of the Florida Bar.

This case is one that has puzzled me, since he has — since the certiorari was granted by the Supreme Court of the United States.

I have had difficulty in understanding what the problem was and how to face it.

It has now been conceded as it must be that if the State of Florida had jurisdiction of a divorce proceeding because the plaintiff in that case was domiciled in Florida and Florida had jurisdiction of the status of marriage in that proceeding.

It has been admitted that the petitioner here received procedural due process.

She received the summons in New York or the notice in New York.

She received the complaint in the courts of New York as provided strictly by the statutes for substituted service in Florida.

She took those to her attorney in New York, in fact there were two attorneys, and was advised not to contest the divorce proceedings because New York did not recognize.

Byron R. White:

What kind of service, would you mind repeating?

Marion E. Sibley:

Substituted service, bad publication but the complaint was forwarded to those required by our statute.

And a notice to appear was forwarded which she admits she received and which she took her attorney in New York who advised her not to appear in the Florida proceedings.

Arthur J. Goldberg:

She also did advise not hear what he said and she admit that the husband have to ignore her and he told her it was appearing.

Marion E. Sibley:

That is true.

But it must be recognized that on the evidence and the overpowering evidence, the lower court decided that was untrue.

Arthur J. Goldberg:

He didn’t believe it?

Marion E. Sibley:

He didn’t believe and I think he would justify it in so doing and that I believe is a fact that he must assume exist in this case.

Now, that was not unusual advice for the New York attorney to give, I don’t think because I have given the same advice to my clients.

If I had a fairly good — an award of alimony in the separate maintenance proceeding, and the husband takes himself to Nevada as has — it happened in my practice.

I have often advised under the Estin case or under the Armstrong case, and under the Vanderbilt case not to appear in the Nevada proceedings in order that the wife might continue in Florida to receive the benefit of the decree she has there obtained for money.

I have never been so bold as to suggest that the divorce in Nevada was not good or she would have some residual rights to dower notwithstanding in fact that the divorce was good and she was not the widow of the man upon his death.

Having conceded the authority and power and the jurisdictional power where the Florida Court over the status of the parties, the divorce in Florida of course is binding upon the parties insofar as the dissolution of the status is concerned.

Now, we must concede that prior to the filing of the divorce in Florida, the lady had filed a suit for separate maintenance in New York and had been successful in procuring an award of $440 a month and I think that was a final award made.

It must be conceded that that judgment was honored throughout the life of the dissident.

So full faith and credit was extended to that judgment in that every quarter was paid under and it’s conceded by counsel and that is true.

Arthur J. Goldberg:

You did not however — full faith and credit was not given to (Inaudible) indication of the New York Court and out of that, the wife has justified living separate and apart from each other because the (Inaudible) which is the same type of conduct in which the New York Court held that the wife is (Inaudible)

Marion E. Sibley:

In all candor, Mr. Justice Goldberg, I would have to concede on that very parts — small segment of the record in New York that that grounds were closely alive.

It is impossible for me to say and I think it’s impossible for the Supreme Court of the United — of the United States to say that it was res judicata because we do not have the pleadings nor the issues, nor the testimony, we have only a segment of a judge’s order and then we cannot tell whether that actually follows the pleadings and what the actual issue was.

But I would say from what that judge said in that very small segment of the record, there’s an indication with the grounds were closely alike if not the same.

Byron R. White:

And if they were used, that doesn’t affect your case.

Marion E. Sibley:

Not in the slightest, Your Honor pleases, not in the slightest.

Marion E. Sibley:

When the Florida Court had jurisdiction of the cause and gave her notice, procedural due process and she determined, as I have pointed out before, that in order to save her judgment in New York, she would not go to Florida and present her defenses if she had any including the defense of res judicata.

While then, she waved her right 10 years later after her husband was dead to come back into Florida and say, “Oh, I had a defense to that lawsuit but I have followed the counsel’s advice at that time and didn’t make my defense.

Pardon me, let him make it now.”

Byron R. White:

It’d different if — if at this point she did question the residence of the husband in Florida and the jurisdiction of work.

Marion E. Sibley:

Well, in the Williams case, if Your Honor pleases, the right —

Byron R. White:

I think that they mean —

Marion E. Sibley:

The right to reexamine the question of residence was preserved to another court.

That of course was preserved to the Florida Court as well and a reexamination of that issue was made in this case and overwhelmingly established by the record that he was a resident at the time that he filed this divorce proceeding and remained a resident for nine-and-a-half years later and died a resident of Florida.

So it might make a difference, it might not make a difference.

William J. Brennan, Jr.:

But on the ground on which the divorce was obtained, this is independent of the question of the power of the court to grant a divorce.

If she had come in to the divorce proceeding, it’s conceivable she might have defeated it on res judicata.

Marion E. Sibley:

It is conceivable that she might.

It is conceivable that she might not.

William J. Brennan, Jr.:

No —

Marion E. Sibley:

I don’t —

William J. Brennan, Jr.:

— but that if she had, then I take that she’d remained his wife.

Marion E. Sibley:

If she had unsatisfied, she’d remained his wife and he would —

William J. Brennan, Jr.:

And then she would have a dower point.

Marion E. Sibley:

And we wouldn’t have been here today.

I’m quite satisfied about that.

Now, having conceded jurisdiction of the Court in the first instance, having conceded the divorce to be good, and having conceded the status to have been affectionately dissolved by the decree in Florida, what now do we have left?

We have the simple question.

Does the Supreme Court of the United States find a federal question in the courts of Florida, sustaining the divorce decree which it has jurisdiction to do and holding in Florida that that decree eliminates dower in Florida, not in New York?

May I ask you a question?

Marion E. Sibley:

Yes sir.

What does the appellate court do when they find in the trial court (Inaudible)

Marion E. Sibley:

What did the appellate court do with it?

Well all I could say is they affirmed it in toto.

They affirmed it in the lower court’s judgment in toto and it was amply supported by the evidence of the case.

And that’s all I could say about it that they affirmed it.

Arthur J. Goldberg:

They did not (Inaudible) affirm it on the ground that (Inaudible) record.

By choosing not to appear in the Florida divorce suit, the nonresident wife was precluded of filing suit years later set aside the decree for matters which could have been litigated by her in the defense of the lawsuit.

Marion E. Sibley:

Well —

Arthur J. Goldberg:

That — that was the basis, wasn’t it?

Marion E. Sibley:

Well, that was — that was part of the basis I think but I think that basis is perfectly sound.

I think having afforded her a right to contest jurisdiction.

Now, this is not — this is not a question of — of a lack of jurisdiction of the subject matter because the Circuit Court of Dade County has planted a jurisdictional divorce actions.

And that was the subject matter to suit.

But she had a right to come in and say at this moment, “You have not qualified for divorce,” and urge that ground that it would have been dismissed if he was found that he had not added — he’s not added his residence and he might have recommit it after he had — had procured his mandate, they bona fide residence.

But that is not — that is — that does not go to a subject matter of the case because the Court had jurisdiction of the divorce proceeding.

That goes to the defense that she may have urged which she elected not to urge and if she had urge it, she would lost it as clearly demonstrated by this record.

William J. Brennan, Jr.:

She would have lost that one, but could not have lost the one that she had asserted, that on the grounds of which divorce was sought, the New York treated this —

Marion E. Sibley:

Well, yes —

William J. Brennan, Jr.:

It might have happened as you said earlier.

Marion E. Sibley:

It could have happened, of course, it didn’t happen.

And the defense wasn’t raised and if the — or fine cattle or fish, to let a lady refuse to come in and defend the divorce proceeding and where her husband died 40 years later and said, “Well, I had a good defense at the time so give me dower, give me dower.”

Well that’s about where we are at in this case.

But coming back, we have a divorce decree of Florida conceded by counsel and necessarily so to be a good divorce decree.

Earl Warren:

Did the divorce court in these circumstances have the power to make the decree concerning the property of the parties?

Marion E. Sibley:

Did the Florida Court?

Earl Warren:

Yes.

Marion E. Sibley:

On substituted of the lady in the —

Earl Warren:

Yes, on the facts of this case.

Marion E. Sibley:

It did not so.

Earl Warren:

It did not.

Marion E. Sibley:

It did not.

Potter Stewart:

They could have — they could have in the decree of taking the property of the husband who was before this plaintiff.

Could —

Marion E. Sibley:

Well —

Potter Stewart:

— could it not, as a matter of power?

Marion E. Sibley:

Well, as a matter of power, Your Honor said in Armstrong versus Armstrong at least there was a shop division on which you said but in Armstrong versus Armstrong as I read it, Your Honors said that when Florida decided Mr. Armstrong, didn’t owe his wife an alimony and she had no property rights in his property.

Now, when Mrs. Armstrong caught Mr. Armstrong in Ohio, Your Honors said that that decree could not be enforceable as far as property rights were concerned in Ohio under the Vanderbilt case and under the Estin case.

Hugo L. Black:

Under Vanderbilt case, you said that it took the action it did based on their opinion in which you are referring now in Armstrong, didn’t you?

Marion E. Sibley:

Yes.

I believe the first one was Estin versus Estin, the second Armstrong, the third was Vanderbilt.

Hugo L. Black:

And Vanderbilt said the reasons given in the concurring opinion in Vanderbilt where you hold it, I mean in Armstrong.

Marion E. Sibley:

In which — in which it was said that property rights on substituted service could not be affected by a divorce proceeding by the husband.

You’re referring primarily — when I say property rights, you’re referring primarily to the right to alimony.

And you refer to this as an intangible right.

Earl Warren:

Wouldn’t the Court — the divorce court find that there were no property rights to be determined?

Marion E. Sibley:

I believe it did, Your Honor, I have taken into preempt.

My recollection is that it did.

Earl Warren:

Well was that — would that in anyway affect the situation?

Marion E. Sibley:

None, whatever, if you concede the basic fact as has been conceded here that the divorce dissolves the status that goes dower, (Voice Overlap) dower in Florida only news to the widow.

And bear in mind, Mr. Chief Justice, this is not an application in New York for dower.

Earl Warren:

Yes.

Marion E. Sibley:

This is an application in Florida for dower, for Florida property on a Florida divorce and at Florida law, and where does that federal question become involve in that.

Florida says this — that dissolves the status, United States Supreme Court says, this dissolves the status with jurisdiction.

And Florida says you can’t get dower unless you’re a widow.

And you’re not a widow if you’re not married at the time of your husband’s death.

Hugo L. Black:

Where did he live — when did the two live when they — the decree was rendered in New York?

Marion E. Sibley:

They both lived in New York.

Hugo L. Black:

They have been both present.

Marion E. Sibley:

They’re both present and it was contested in New York.

Hugo L. Black:

And the wife was adjudicated there and she remained living there.

Marion E. Sibley:

She remained in New York.

Hugo L. Black:

And you say that despite that fact and despite the fact that they had given her an interest, he had to pay it so much in property in recognizing that Florida dower laws would govern rather than New York dower.

Marion E. Sibley:

Well, I am — well, our answer of course is yes.

Yes, I think Florida property is governed by Florida law and the properties in Florida.

And I don’t think New York law can govern Florida’s property.

Marion E. Sibley:

That’s my judgment and that’s —

Hugo L. Black:

Suppose New York had — I’m asking you this state because it’s the most interesting question.

Suppose New York had a law the time that they both lived there and saying that people who lived here would be governed by the State’s law on dower and everything else as far as they adjudicate it and the judgments were entered.

We will hold to every wife here is entitled to dower, what we call a dower when a husband is dead, wherever he lived, would that been an invalid law?

Marion E. Sibley:

Well of course, it would be an invalid law ex — I don’t think that you’ll determine what the dower laws and rights are in Florida.

As a matter of fact, many states don’t have any dower rights.

That’s statutory.

Hugo L. Black:

Of course, they hadn’t named that dower but said that — that if this state’s interest in the marriage life, people and their status husband and wife, the — the right to see that the wife is taken care, whatever her husband does and wherever he goes, the law of this state is that she can continue to draw from him — make him pay her money after he leaves the state to support her, it was wrong.

Would that be a bad law?

Marion E. Sibley:

I didn’t quite understand.

I’m sorry.

You mean the decree for alimony?

Hugo L. Black:

Well we say first, no decree.

It just said it in the statute.

It said that in the state the state has an interest in the marriage of people.

It has an interest that seeing that the wife has not left him pecunious on the public and our law therefore recognizes that she’s entitled to have her husband support her whether he lives here or lives somewhere else.

Would you say that was invalid?

Marion E. Sibley:

I would say it might be valid New York but certainly it wouldn’t be valid in Florida.

Especially —

Hugo L. Black:

If it was valid in New York, it could be valid in Florida, wouldn’t it?

Marion E. Sibley:

Not if her husband is a domicile of Florida.

I don’t know how New York in the next statute says maybe they can and — and if Your Honor they can, they can, that makes sense.

Hugo L. Black:

But we did say that Florida could extend this law beyond the boundaries of Florida, people who is domiciliary in a case some years ago.

Marion E. Sibley:

Well of course, Your Honor, Florida’s —

Hugo L. Black:

(Inaudible) versus Florida.

Marion E. Sibley:

That maybe in reference to service, I’m not sure about that.

Hugo L. Black:

Would based on the fact that they live in Florida, domicile was there.

Marion E. Sibley:

Not having the facts of the case, I’m unable to — you know, I’m not familiar with the case.

But all I can say is that if New York can pass a statute which binds its people to the domicile in its state today.

And when they move to Florida as many of them do, they are still bound by New York statute.

Marion E. Sibley:

That’s a strange doctrine to my ears but it may be the law.

Hugo L. Black:

Suppose — suppose there was — they are here, this was — how much was he to pay her per month?

Marion E. Sibley:

$440, I believe Your Honor.

Hugo L. Black:

He couldn’t escape that, could he, by going to Florida to live?

Marion E. Sibley:

Indeed not, not under the Estin case?

Hugo L. Black:

What’s that?

Marion E. Sibley:

Not under the Estin case, he couldn’t.

Hugo L. Black:

Why was that?

Marion E. Sibley:

Because the Court said that the — that the decree was procured on substituted service and though capable and efficient to dissolve the status, it could not affect her intangible right to alimony or support.

Hugo L. Black:

Now, suppose this decree was offensive.

I’m not saying it is.

Suppose this decree we have it now that to be enforced after the time of his death, as I understand it, even though he went to Florida and New York set a decree.

Suppose by far that was State of New York, the decree could be read as say, she has an interest in the property which will continue so long as she lives in New York and needs the support, would that be invalid?

Marion E. Sibley:

Suppose the decree said that?

Hugo L. Black:

Yes, suppose the decree said that.

Marion E. Sibley:

Well, I don’t know what the law of New York is.

Your Honors, ask the Supreme Court of Florida the orders case, if in Florida the Florida courts could require a husband to pay after he died and the Florida courts answered no.

Now, I know what they could do in New York and I can’t answer that question.

All I know is that whatever they do in New York, they only do in New York for New York property.

Hugo L. Black:

But if that’s a valid decree?

I’m not saying it is.

If it said that, why wouldn’t it be governed by the principles of the Estin case?

And why wouldn’t New York will inquire to be compelled to give it full faith and credit?

Marion E. Sibley:

The Estin case actually, although it started off on the theory that they were given full faith and credit to a New York separate maintenance provision.

Estin case actually as finally modified by the Armstrong case and the Vanderbilt case said that it was not under the full faith and credit to us at all.

It was because they could not put out intangible personal rights by substituted service in the state where the divorce was granted, as I understand it.

Hugo L. Black:

They had to be valid rights though under the state whether the decree was rendered.

Marion E. Sibley:

Well, there was no decree — there was no decree in the Vanderbilt case and no decree in the Armstrong case at the time the divorce was granted.

Hugo L. Black:

But in one there was no decree and one there was.

Marion E. Sibley:

Well, in the Estin case, I think there was a decree.

Marion E. Sibley:

But I was under the impression that in the Armstrong case and in the Vanderbilt case, there was no decree.

And the Court —

Hugo L. Black:

I think it’s just the outset, they didn’t make a —

Marion E. Sibley:

I’m sorry, I could be wrong.

I could be wrong.

William J. Brennan, Jr.:

Tell me when these parties lived in New York.

I don’t know whether the fact is enough but assume that the husband had owned real estate in Florida while they were still domiciliaries in New York before the separate maintenance fact.And they’ve never had to parting of ways.

Under Florida law, would the wife have had a dower interest in the Florida estate even though —

Marion E. Sibley:

Versus in New York (Voice Overlap) oh, indeed yes sir.

Oh yes.

William J. Brennan, Jr.:

Now, if he had own a real estate at that time and we come to the separate maintenance.

Marion E. Sibley:

Wouldn’t the company —

William J. Brennan, Jr.:

Now, we come to the separate maintenance decree.

If they’ve never been divorced notwithstanding the separate maintenance decree which her dower right in Florida real estate could have been recognized?

Marion E. Sibley:

Indeed yes.

William J. Brennan, Jr.:

So what you have to defend upon is that actually the relationship of husband and wife was terminated by the Florida divorce decree.

Marion E. Sibley:

Well, if Your Honor pleases, I don’t have to rely upon it because it’s been conceded.

William J. Brennan, Jr.:

Well, I know.

What I’m trying to get at is —

Marion E. Sibley:

Well, of course that’s — of course that’s the answer that the dower depends upon the continuation of the status.

William J. Brennan, Jr.:

And this Florida — and this New York decree — this New York order did not in turn save to the wife any dower interest in Florida decree.

Marion E. Sibley:

None — none or whatever didn’t have anything to do with it, if Your Honor please.

Nothing to do with it.

Earl Warren:

Mr. Sibley —

Marion E. Sibley:

Yes sir.

Earl Warren:

If dower rights are property rights, would the fact that the decree in divorce case said that there are no property rights to be determined in this case and none were determined have any significance at all in the case?

Marion E. Sibley:

And none or whatever because a dower is an unusual and inchoate property right that has no vested, actually no vested right in the wife, only a provision that it becomes effective in the event she survives her husband.

There’s no such thing as dower while the husband lives.

And there’s no way dower can arise until the husband dies still married to the woman that claims dower.

Do I make myself clear?

Earl Warren:

Yes, I — I understand that but also I suppose in — or I’ll ask you the question I don’t know.

Suppose the New York Court after this divorce had increased — attempted to increase the separate maintenance against the husband, could they have done it so lately?

Marion E. Sibley:

Well of course, yes sir, and under the Estin case and under the Armstrong case, on the very cases of course.

Earl Warren:

Isn’t that something of an inchoate right too?

Marion E. Sibley:

No sir that is an existing right but that depended upon some future event or surviving some future event.

That right persists with and after the divorce.

That is the — that is the common law right of the wife to be supported by her husband.

That’s an existing right though you referred to as an intangible right, it is a right that presently exists.

I’ll come back to the problem that they suggested.

The question is, far having granted a good divorce, one that’s recognized as valid, that having dissolved the status is there a federal question involved if the former wife comes to Florida and seeks in a Florida Court dower in Florida property.

I see nothing that has anything to do with the federal law there.

That seems to be a question for Florida’s jurisdiction.

They have a right to decide what effect of their divorce decree was on dower as allowed by statute in Florida.

And that’s the whole question involved here.

And as I started out with, Your Honor, I started out with — with the complexity as to why this case is here.

I still have it complex here.

I must say that I came here quite and full with argument and to make one of those real — I think telling speeches and the Court so well understood the problem that I had very little to say as if I answered the questions.

Thank you very much.

Earl Warren:

Mr. Ward.

Robert C. Ward:

Mr. Chief Justice, I only have one or two remarks to make in rebuttal.

I would like to recall and point out to the Court that the history of the divorce cases that have appeared in this Court and the theory that has evolved into what I now have referred to as divisible divorce.

Hugo L. Black:

I may think — I may say to you that I think it’s a wholly improper designation to put on it by people who didn’t like it.

Robert C. Ward:

Well, I would say that —

Hugo L. Black:

That this confuses me for it to be used.

Robert C. Ward:

Alright, I will eliminate it from you, sir, any further.

But this Court has said many times in all kinds of cases and particularly in these — this type of case that everybody is entitled to their day in Court.

And that the basic philosophy of this whole thing of the wife’s rights not being wiped out by ex parte proceedings was solely that she wouldn’t become a public charge.

Now, what I’m saying here and what I am asking this Court to do is not to allow a — somebody come in 10 years later and present a defense, they may have had in litigation.

I don’t think that the Court would have the right to do that, any court would.I think that basic premise has been established.

What I’d say is that when the parties have had their day in Court and they have fully litigated an issue that one of the parties should not be entitled to run to another jurisdiction and in an ex parte proceeding which is another effect of fraud upon the Florida Court in this case wipe out this woman’s rights.

Earl Warren:

We’re talking on the New York case.

Robert C. Ward:

On the New York case.

And wiped out this woman’s rights and then say when she comes in to assert her rights, under this decree that she got when both she and her husband had their day in Court, they say on a procedural technicality, well it’s too late to present that now.

You should have presented it years ago.

I’d say that’s not only not granting full faith and credit to the New York decree, that’s depriving this woman of her equal protection under the law and due process.

They litigated this matter.

They litigated it together.

They had the day in Court and for him to go off now in another jurisdiction on an ex parte proceedings and wiped out her rights, I say cannot be done under the federal constitution.

And that’s why I say that this New York decree should be granted full faith and credit.

The Florida Court should be required to say, “Yes, that issue was litigated, did New York decree is res judicata and she is entitled to enforce this property right because marital status has nothing to do with it now because the man is dead.

She’s enforcing this property right in his estate.

And I believe that it should be enforced else she’s been deprived of her constitutional rights.