Vanderbilt v. Vanderbilt – Oral Argument – April 22, 1957

Media for Vanderbilt v. Vanderbilt

Audio Transcription for Oral Argument – April 23, 1957 in Vanderbilt v. Vanderbilt

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Earl Warren:

Number 302, Cornelius Vanderbilt Jr., Petitioner, versus Patricia W. Vanderbilt and Thomas F. McCoy, Receiver and Sequestrator.

Mr. Rosenblatt.

Sol A. Rosenblatt:

May it please the Court.

When Mr. Justice Douglas wrote the prevailing opinion in the now famous case of Estin against Estin, the last sentence in that prevailing opinion read as follows, “And it will be time enough to consider the effect of any discrimination shown to out of state ex parte divorces when a state makes that its policy.”

I don’t think that even Mr. Justice Douglas had the faintest idea of what was going to happen to the legislative policy of New York after writing that opinion in Estin against Estin.

But shortly thereafter, attempts were made to introduce statutes into the New York legislature.

And finally, one was passed effective April 1953.

The Court has been supplied with the pamphlet of the Law Revision Commission, Legislative Document Number 65 (k), which accompanied the proposed statute, which is now for consideration before this Court in view of the particular circumstances of this case I may say.

And in that pamphlet, I’d like to read just two sentences to call to the direct attention of the Court, the background before I recite the most important facts, which are to be considered by the Court.

At page 5 —

Hugo L. Black:

What’s the page that you’re referring to?

Where is — where is it?

Hugo L. Black:

I haven’t got anything.

Sol A. Rosenblatt:

The — you mean the Law Revision Commission?

William O. Douglas:

We don’t have that counsel in (Inaudible)

Sol A. Rosenblatt:

What’s that?

We forwarded all the copies to the Clerk.

William J. Brennan, Jr.:

I don’t have it.

Sol A. Rosenblatt:

This most important Law Revision Commission, Document Number 65 (k) with the (Inaudible) and forward them to the Clerk of this Court.

Earl Warren:

Go right ahead and (Voice Overlap) —

Sol A. Rosenblatt:

I’ll see that you certainly have them sir, if you haven’t already been given.

At page 5 of this recommendation and the top reads, “Recommendation to the Law Revision Commission to the legislature relating to the jurisdiction to the Supreme Court, that’s of New York, to grant maintenance to a wife not withstanding a judgment of divorce, annulment or nullity of marriage of a court which did not have personal jurisdiction overheard.”

And in the second paragraph, the Commission says, “The Estin case called the attention to the injustice to a New York wife whose husband has obtained the divorce in another state in an ex parte proceeding.”

And thereafter, immediately before the recommendation of the specific statute, which will be found in the petitioner’s brief at page — I think 4 or 5 — page 4.

The Commission says the following, “The Commission believes that legislation is necessary to protect the New York wife who’s right to support from her husband may now be completely cut off by an ex parte foreign divorce decree in the absence of a previous New York separation decree with provision for maintenance.

In order to avoid discrimination against foreign divorces, against which the Estin opinion warned, such legislation should be made applicable whether the husband’s ex parte adjudication of marital status was obtained in a foreign court or a New York Court.

What wonderful language and I’ll proceed to take it apart, because as applied in this case where there was no New York wife and there was no New York husband, my contention is that this statute is unconstitutional.

It violates particularly Article 4 Section 2 of the Constitution and is in complete disagreement with every concept, when I was taught years ago, constituted the elements of due process of law and I think I can make that clear on the statement of facts.

In 1948, a fellow named Vanderbilt had been a resident, a legal resident, a domiciliary of the State of Nevada since 1928.

That’s 20 years previously.

Sol A. Rosenblatt:

During all that period of time, that was his domicile.

That is his home.

And in 1948 of September, the lady who he married in the State of Connecticut was admittedly domiciled herself in the State of California.

So, when this two got married in the State of Connecticut in September of 1948, they continued in their marital relations.

Sooner or later, left the matrimonial domicile of Nevada and became domiciliaries of the State of California where they voted, where they paid taxes, in the State of California.

And in September of 1952, they parted.

They were then both residents of the State of California in September 1952.

But this lady, in an action which is very important for the Court to understand but which is not — this particular action but between these two parties, this lady sat in Los Angeles and verified a complaint in the Supreme Court of New York County where she cause Mr. Vanderbilt to be served.

He hadn’t just gotten off a boat from Europe, and she claimed that she was entitled to a separation, alimony, counsel fees, and she swore from that complaint that she and Mr. Vanderbilt, her husband, were residents of the State of New York, domiciliaries of New York.

Because if she hadn’t said that they were residents of the State of New York, she couldn’t have issued any process to have him served in the State of New York.

You cannot bring a matrimonial action of any kind, nature or description in New York State unless there is a specific allegation in the complaint that the parties are legal residents of the State of New York.

Justice Frankfuter:

Under the statute?

Sol A. Rosenblatt:

Under this or any other statute.

Justice Frankfuter:

I understand it in the others, but this one.

Sol A. Rosenblatt:

You bet, Your Honor, because this one calls for an action in New York for a divorce, separation or nullity and it does not change the legal requirement that in any of this process, for any of these three kinds of relief, you must swear that you are a resident of New York.

Justice Frankfuter:

She swore this —

Sol A. Rosenblatt:

She swore that.

Justice Frankfuter:

— under jurisdictional requirement.

Sol A. Rosenblatt:

Jurisdictional requirement.

Justice Frankfuter:

As —

Sol A. Rosenblatt:

Now, that first case —

Justice Frankfuter:

The case comes — as the case comes here.

Sol A. Rosenblatt:

Sir?

Justice Frankfuter:

As the case comes here, was that satisfaction with the New York procedural or jurisdictional requirement, call it what you will or is that passed on by the New York Courts or assume to be satisfied by the New York Court?

Sol A. Rosenblatt:

In this particular case?

Justice Frankfuter:

Yes.

Sol A. Rosenblatt:

It —

Justice Frankfuter:

Am I anticipating?

Sol A. Rosenblatt:

It was — you’re anticipating a little bit but I’d like to answer your question now so you’ll understand.

It was passed on by the Appellate Division with the presiding justice dissenting.

Justice Frankfuter:

That doesn’t make a difference to me.

Sol A. Rosenblatt:

I know.

Justice Frankfuter:

I — I still think there’s a difference in a court judgment in the dissenting opinion and that old fact.

Sol A. Rosenblatt:

Well, may it please Your Honor, thank God —

Justice Frankfuter:

What difference does it make that it was a dissenting opinion?

Go on.

Sol A. Rosenblatt:

All the difference in the world so far as the question is for review in this Court, because it will take more than a decision of the Court of Appeals with two justices dissenting to convince this Court in my opinion that due process was properly given under this statute.

Justice Frankfuter:

I don’t mean to foreclose that.

Sol A. Rosenblatt:

That’s all right, sir.

Justice Frankfuter:

I just want to know what the New York Courts did — (Voice Overlap) —

Sol A. Rosenblatt:

The New York Courts in this case — the New York Courts in this case passed the question but I’ll tell you why for a very technical reason when I get my recital of facts.

Justice Frankfuter:

But they did — they did find fulfillment of that requirement which you told us about.

Sol A. Rosenblatt:

That’s right.

Justice Frankfuter:

All right.

Sol A. Rosenblatt:

That’s right, but I haven’t explained yet what the full requirement of New York is.

Because the full requirement is, that if you were to found any matrimonial action and if you have not been a resident of New York, either the plaintiff or the defendant, ex parte or with appearances, nevertheless, it has to be a years full residence and domicile before you can start any action.