Vanderbilt v. Vanderbilt

PETITIONER:Vanderbilt
RESPONDENT:Vanderbilt
LOCATION:Congress

DOCKET NO.: 302
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 354 US 416 (1957)
ARGUED: Apr 22, 1957 / Apr 23, 1957
DECIDED: Jun 24, 1957

Facts of the case

Question

  • Oral Argument – April 22, 1957
  • Audio Transcription for Oral Argument – April 22, 1957 in Vanderbilt v. Vanderbilt

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

    Earl Warren:

    — Cornelius Vanderbilt, Jr., Petitioner versus Patricia W. Vanderbilt and Thomas F. McCoy.

    Mr. Rosenblatt.

    Sol A. Rosenblatt:

    May it please the Court.

    I noted yesterday that the report of the Law Revision Commission which had not then been — been supplied to Your Honors was to be forthcoming thereafter, I believe it is.

    And I want to call to your attention the fact that in this report of the Law Revision Commission recommending the legislation which I say is unconstitutionally applied against my client in the facts of this case, you won’t find one word as to the effect of a New York ex parte decree being affected by this proposed legislation.

    The Court of Appeals held for what?

    Sol A. Rosenblatt:

    The Court of Appeals, sir, if I may interrupt my recital of facts but Your Honor was entitled to the answer at page 547 of this record said as follows, “We can go further however and declare that even if Section 1170-b was unavailable as against the New York divorce, that circumstance would not mean that the New York judgment was getting more than the Nevada judgment less faith and credit in New York.”

    And I would rest my entire case on full faith and credit, sir, in this Court on the following statement of the New York Court of Appeals which is inaptly — and inaptly applied here, says the Court, “Nevada’s judgments put in evidence in New York are entitled to the same effect as they are given in Nevada.”

    And to avoid unconstitutional discrimination, United States Constitution Article IV Section 2, the same effect New York’s own similar judgments are given in New York.

    The Court then goes on and says, “But under the divisible divorce doctrine, defendants Nevada divorce had no effect anymore than it said anything in terms as the plaintiff’s property rights.

    Its sole effect was to end the marriage and it is been given that effect in New York.”

    May it please this Court, that is not so.

    A Nevada decree ex parte entered in Nevada forecloses a further duty of support to the wife guilty of misconduct under the laws of Nevada and in New York, may it please the Court, the same law and the same rule applies as it does also in the State of California which was the law of the matrimonial domicile of these parties at the time of their separation.

    What the New York court has done is to give partial effect to the Nevada decree as applied in New York as against its own decree.

    Now, if I may interject because I want to pursue this a little later if I may with Your Honors permission, I would like to give you the facts of this case so that you may judge for yourselves whether or not in spite of the New York Court of Appeals’ determination as under its own state law whether or not full faith and credit and the privileges and immunity of this man, who happen to have been a 20-year permanent domiciliary of the State of Nevada, were impinged by the action of the New York court.

    You see, may it please the Court, at the very outset a New York judgment, once it’s rendered is conclusive until it’s set aside.

    It may not then be modified thereafter for some future equity apparently arising.

    That’s the Herpe case in 225 New York.

    A New York judgment ex parte or with appearances cuts off and forecloses all rights to a wife guilty of misconduct under the law of New York.

    And there isn’t a New York lawyer, including myself, who would dare after an ex parte decree had been rendered against the woman in New York, who would dare I say to file in a New York Supreme Court an action for separation, divorce, or annulment with that ex parte decree outstanding.

    Because first of all, the woman would be guilty of perjury when she swore that she was married and she has to swear that when she bring such an action.

    And second, the statutory provisions requiring that that judgment is conclusive as to everything which it determines until it sets aside would prevent the filing of that kind of an action under 1170-b.

    You just couldn’t file this kind of a case if New York had made an ex parte decree theretofore.

    It’s impossible.

    And a lawyer practicing before the Bar in New York would have to advice his client that the first thing to do is to go in and set aside that decree if it’s possible to set it aside.

    That couldn’t be done if it was already been outstanding for two years on any ground.

    Now, what happened here?

    And in a sense, this is an ex parte action, too, in New York.

    This very case which you’re called upon to determine because after the first case was instituted by Mrs. Vanderbilt, and nobody yet has ever discovered the reason why with a matrimonial domicile in California, with assets and property in California, why she tried to commence an action in New York and falsely swear that both of them were residents, nobody yet has been able to discover that.

    She had plenty of recourse right in the State of California where she was located, but she started an action in New York and it took us months and hundreds of pages of testimony and hundreds of exhibits to get that action dismissed on the ground that neither of these parties had ever been a resident of the State of New York.

    Sol A. Rosenblatt:

    Now, that was done in February of 1953.

    But her appeal was pending until February of 1954.

    She says that in February of 1953, she came from California to New York and that she then took domicile.

    I don’t know.

    However, let’s take her statement that she took domicile on February 1953.

    She had no right when she came to New York.

    She had not been a resident as required by the New York statute and she could have no rights as a wife until one year of matrimonial residence had ended.

    That’s the law.

    I didn’t make it.

    But no woman can sue in a matrimonial action in New York unless she’s had one year of residence which is interpreted to mean domicile.

    So in February of 1953 —

    Felix Frankfurter:

    Is there a — is there a Court of Appeals decision that residents means domicile?

    Sol A. Rosenblatt:

    Yes, sir.

    I didn’t cite them here but so well-known we’ll be glad to furnish the authorities if you like.

    Felix Frankfurter:

    A lot of things that are well-known that I don’t know.

    Sol A. Rosenblatt:

    Would you like the authorities, sir?

    Felix Frankfurter:

    Yes, I would.

    Sol A. Rosenblatt:

    We’ll be delighted to send them.

    What happened was that in April of 1953 — now, her case for separation had been dismissed in February 1953 and she taken an appeal.

    In April 1953, this statute became law, this 1170-b, April 1953.

    In the mean time, Mr. Vanderbilt in March had gone back to his old domicile of Nevada.

    And by the way, all the courts have found that his domicile there was legitimate, had been consistently maintain and that when he returned, it was proper return to his former domicile and he still domiciled there and all the courts have so held in their determinations.

    Nothing happened until a suit was commenced for divorce by Mr. Vanderbilt in Nevada, in June, and he served the papers on Mrs. Vanderbilt in New York City.

    And she promptly went into that other action which was pending and she made a motion to stop this divorce.

    That motion was denied by the Supreme Court of New York County and Mr. Vanderbilt received the divorce June 30, 1953.

    Now, nothing happened thereafter until April of 1954 and that’s the inception of this case.

    In April of 1954, Mrs. Vanderbilt in New York brings a simple action for separation.

    It says on the summons which is required to be stated in the New York practice, action for separation.

    It doesn’t say action for maintenance in case the separation is denied, it says action for separation.

    And in her complaint she swears that she’s married and that this man is guilty of all sorts of things and that she ask for support under the Separation Law of New York.

    Sol A. Rosenblatt:

    And at the same time, she sequestrates the property which Mr. Vanderbilt had then come in due — due to the death of his mother which were trusts, inalienable trust long established in New York.

    He’d never brought them there, they just existed in New York and she seized and attached all those trust and their — and the property, that’s why you have a sequestrator in here because he’s still in this case.

    She couldn’t have sequestered a New York citizen’s property.

    She wouldn’t have been entitled to the writ because New York resident would have been amenable to any jurisdiction of the New York court by service even outside in the State of New York just as a California citizen is amenable to California process by being served outside the State of California.

    And she couldn’t have commenced this action under 1170-b against her New York husband without saying that she’d been divorced by a decree of New York.

    So she couldn’t have sequestrated under any circumstances and actually if her papers had told the truth on the sequestration, if she’d said that she’d been divorced but the divorce was no good, she couldn’t sequestrate.

    If she said that she was seeking relief under 1170-b, she still couldn’t sequestrate until the Court might decide in her favor.

    But she got a sequestration tied up everything at this man and has lived very well ever since including lawyers and bills and charges and everything else out of his sequestrated funds which maybe is the right thing.

    I don’t know.

    That’s possible but I don’t think it’s the right thing when it’s founded upon a process rounded in iniquity, rounded in perjury.

    She has to swear falsely to bring this suit and she has to swear falsely to get the sequestration.

    And then she has to swear falsely when she says that she’s suing for separation or she’s not suing for anything of the kind.

    She’s suing for what we call maintenance.

    William J. Brennan, Jr.:

    Well, I — you —

    Sol A. Rosenblatt:

    And New York doesn’t have —

    William J. Brennan, Jr.:

    You’re suggesting —

    Sol A. Rosenblatt:

    — a maintenance statute.

    William J. Brennan, Jr.:

    You’re suggesting that she swore falsely, has that been the determination of any of the New York courts?

    Sol A. Rosenblatt:

    No, sir.

    It’s not the determination of any of the prevailing opinions.

    I’m making the statement because as you remember I said yesterday that I want you to hear the facts, and the fact is that when she swore that she was married, she wasn’t married and the fact is that when she swore she wanted a separation, she couldn’t get one.

    William J. Brennan, Jr.:

    Well, were any of those issues before the New York courts?

    Sol A. Rosenblatt:

    Certainly, sir.

    William J. Brennan, Jr.:

    And they were all decided adversely to your position?

    Sol A. Rosenblatt:

    By the majorities of the courts, yes, but thank God for this Court because the fact that New York decides anything, it doesn’t mean that it’s constitutionally correct, New York has decided plenty of cases reversed by this course — this Court, thank the Lord.

    And if some New Jersey man, for example, who in a New Jersey case was successful in thwarting New York jurisdiction when New York wanted to take jurisdiction over a New Jersey matter in a matrimonial case when the New York court said in Pollock against Pollock, we won’t make this a mecca for foreign divorces.

    And in the case of the Floyd against Floyd in 95 New Jersey equity, your own State, sir, said, “But to entertain a suit of the character is here where non-residence were involved, that one claim to have become a resident after an ex parte decree but to entertain a suit of the character is here would have a pernicious tendency to convert this State into a mecca for disgruntled divorces and just threw the case out.”

    You see in New Jersey after the Estin case in 1950, they passed a special statute for maintenance.

    That’s what they did.

    New York has been dishonest.

    Sol A. Rosenblatt:

    New York hasn’t passed a statute for maintenance.

    New York says, “Come hither, stay here a year, sue for a divorce or a separation which you can’t get, then we’ll give you maintenance.”

    And the man will stay subject to those orders for the rest of his life because this same Section says that the Court by order at anytime thereafter upon the application of either party to be given in such manner as the Court shall direct may annul, vary or modify the judgment.

    Now, after this suit was commenced —

    Felix Frankfurter:

    I don’t quite — I don’t quite follow you, Mr. Rosenblatt.

    Sol A. Rosenblatt:

    Yes, sir.

    Felix Frankfurter:

    Do I understand from — in view of your last remark about New York not being honest, as you put it, that if New York had — had been dishonest as you want them to be and just said that a woman in this situation could get maintenance, would that have been all right, that statute?

    Sol A. Rosenblatt:

    That — this statute, never.

    Felix Frankfurter:

    No, I’m —

    Sol A. Rosenblatt:

    That statute providing from maintenance?

    Certainly.

    Felix Frankfurter:

    Although, she — although, there’d been a divorce between her and her husband in a sister State to which respect would have to be accorded by New York?

    Sol A. Rosenblatt:

    That’s right.

    Felix Frankfurter:

    So that your trouble is that — or your — your attack on this statute is that although if this same obligation could have been imposed, would have been — might have been imposed by a statute which simply and candidly says, “Mr. Vanderbilt must maintain this lady who once was his wife and had been dully divorced, but nevertheless because she was once his wife, New York State has a constitutional interest that may impose a maintenance liability on the husband, that would have been all right.”

    Sol A. Rosenblatt:

    Provided — it would have been all right provided that New York had had some interest in this marriage.

    Felix Frankfurter:

    Well, I’m —

    Sol A. Rosenblatt:

    Provided that at some time the matrimonial domicile of either one of these two parties had been there at the time that the divorce was rendered.

    Yes, sir.

    Felix Frankfurter:

    That it wouldn’t have been all right —

    Sol A. Rosenblatt:

    It wouldn’t have been all right to two strangers?

    No, sir.

    Felix Frankfurter:

    Well, so that the question comes — to the question and seems from your point of view, they are different — they had a very different — different exception in this case.

    From your point of view, you’re asking us to pursuit Justice Brennan’s question to say that — that those conditions which in your — from your point of view would make this a valid statute, namely, that there was some type, some domiciliary type between this woman in New York, that was the precondition of the obligation and you say the New York Court of Appeals didn’t — was not warranted in the facts to make such a finding, it did make such a finding and we must overrule that finding as a matter of constitutional law, is that it?

    Sol A. Rosenblatt:

    That’s it.

    Well now, may I pursue that a second with you, sir?

    Felix Frankfurter:

    You can pursue it provided it’s relevant or you can pursue it anyhow.

    That’s — that’s your hour.

    Sol A. Rosenblatt:

    I think —

    Felix Frankfurter:

    What I want to know is how of this Court is in a position to go behind determination of whether a woman lived in New York for a year and how she lived there whether permanently or anything else.

    All those questions of constitutionality rather than determinations of fact on which, usually, the majority of a court is a court’s decision.

    Felix Frankfurter:

    How can I tell whether who is right or who is wrong?

    Would we take testimony?

    Sol A. Rosenblatt:

    No, just use common sense, sir —

    Felix Frankfurter:

    Well, that’s (Voice Overlap) —

    Sol A. Rosenblatt:

    — that sometimes —

    Felix Frankfurter:

    — the Court has applied.

    Sol A. Rosenblatt:

    That sometimes a good substitute for what might be proper law —

    Felix Frankfurter:

    Is it common —

    Sol A. Rosenblatt:

    — and I will put it to you as follows.

    Felix Frankfurter:

    Is it common sense the — the equivalent or can that dispense for the determination of a whole judicial system to with New York that certain facts were facts?

    Sol A. Rosenblatt:

    Not any more than the whole system of saying that a man has had a fair trial in any one of the 48 States is still reviewable in this Court.

    Felix Frankfurter:

    That’s in the record on the basis of which I draw independent conclusion to the extent that there’s no basis for the determination of the state court, is that this kind of a situation?

    Sol A. Rosenblatt:

    I think so.

    Felix Frankfurter:

    Very well.

    Sol A. Rosenblatt:

    And I base it on the following fact, that at the time that the divorce was rendered, this woman had no matrimonial domicile in New York at all.

    She had no rights under any New York statute whatsoever.

    Felix Frankfurter:

    Now, is that (Voice Overlap) —

    Sol A. Rosenblatt:

    And that after she was divorced — sir?

    Felix Frankfurter:

    Is that conceded by the New York court?

    Sol A. Rosenblatt:

    Certainly it is.

    Felix Frankfurter:

    What about a person has matrimonial domicile and I think in the question of law, the question of the existence of the certain facts from which a conclusion is drawn.

    And what you are saying now is that this record is absolutely so barren of any support for those underlying facts on which the Court of Appeals to — based its decision that no court in reason could have reached that conclusion.

    Sol A. Rosenblatt:

    That’s exactly what I’m saying.

    Felix Frankfurter:

    Well, then that’s the proposition you have to maintain.

    Sol A. Rosenblatt:

    That’s exactly what I’m saying, and I’m also saying that this — what you said, Your Honor, in your dissent in the Estin case.

    Felix Frankfurter:

    Dissent seemed to be popular with people who have use for them but they are not decisions of courts.

    Sol A. Rosenblatt:

    And it has also been the fact, may it please the Court, that I was taught at my law school that many of the dissents of this Court have later become the majority opinion.

    Now, you said in the Estin case, sir, “I cannot agree that New York’s interest in its residents would justify New York in giving less effect to an enforceable Nevada divorce granted to one domiciled in Nevada against a spouse not personally served, that it would give to a valid New York divorce similarly obtained.”

    Felix Frankfurter:

    That’s a legal proposition.

    Sol A. Rosenblatt:

    And I’m standing on that in this Court.

    Felix Frankfurter:

    Well, that isn’t if you’re standing on as I follow you argument —

    Sol A. Rosenblatt:

    Thank you, sir.

    Felix Frankfurter:

    — or I can’t follow it.

    That’s a legal proposition, namely, I — I adhere to that for myself that you can’t — New York can’t differentiate and treat disadvantageous a divorce rendered outside the State for one rendered inside the State.

    I understand that.

    Sol A. Rosenblatt:

    Thank you, sir.

    Felix Frankfurter:

    That’s a legal proposition.

    That is what you’re tendering.

    Sol A. Rosenblatt:

    I’m saying that New York has treated this one differently.

    Felix Frankfurter:

    Because you don’t —

    Sol A. Rosenblatt:

    And I’m basing it — I’m basing it —

    Felix Frankfurter:

    Because you don’t expect the — because you don’t accept the facts found by the New York Court of Appeals.

    Sol A. Rosenblatt:

    No, I don’t have to even consider the facts found by the New York Court of Appeals.

    I say that when a person brings an action under the New York law and labels that action for a separation and it isn’t an action for a separation, I say that I’m entitled under Coe against Armour, determined by this Court, that my non-resident client who has never appeared in this case, whose special appearance is still preserved to it including this Court, that he can’t be held for something which isn’t a separation.

    I say that due process requires that when you serve a paper on a non-resident, assuming everything that the New York court held, I say that when you serve the paper, the man has got a right to know what to meet and expect.

    Felix Frankfurter:

    Well, are you —

    Sol A. Rosenblatt:

    And he had a right to expect the separation case.

    Felix Frankfurter:

    Are you then resting on Pennoyer and Neff that this is a judgment of a personal character and that your client wasn’t properly served?

    Sol A. Rosenblatt:

    Among other things — among other things, yes, sir, among other things.

    I’m resting on all of the things that I’ve brought to this Court’s attention in seeking this writ and which this Court granted.

    Felix Frankfurter:

    If you will establish only one of those proposition on which you’re resting, so far as I am concerned, that’s enough.

    Sol A. Rosenblatt:

    I’m trying to, sir.

    Felix Frankfurter:

    Just one of them.

    If it’s Pennoyer and Neff, that ought to be established.

    If it’s discrimination to which you referred and what I had said in Estin, I understand that.

    But I can’t understand asking me to say that the underlying alleged facts found against you by the Court of Appeals are reviewable here except on the theory of — one of due process because there’s no foundation whatever as disclosed by this record.

    Sol A. Rosenblatt:

    Well now, may it please the Court.

    Let me take a look further into the record in reciting the facts.

    Having put into special appearance and entering into the trial of the case, the motion was made for a separate trial as to the validity of this Nevada decree in New York.

    The Court, however, said it wouldn’t take up the question of the validity of the Nevada decree which had never been mentioned in the plaintiff’s complaint, but it said and I’m reading at page 39 of the record.

    Sol A. Rosenblatt:

    And I said, rather, “What Your Honor is doing then is at the same time that you’re going to take testimony on whether or not the decree is valid.

    You are going also to take testimony on the very issue that was decided by that decree so that if the decree is valid, all this testimony has to be stricken out.”

    The Court,” I will do that.

    We can do that.”

    “Mr. Rosenblatt, don’t you think that’s a little prejudicial to this defendant, Your Honor?”

    The Court, “What prejudice can he suffer?

    If he is successful, he has suffered nothing.

    If he’s not successful, we have tried the entire case.”

    Now, this case of the plaintiffs was put in and after motions to dismiss they asked them for the right to be heard on the question of the Nevada decree, there was no evidence other than that characterized by the Appellate Division as meager against this Nevada decree.

    And so the Court made its decision and it said at page 344 or rather I — I want to revert just before the decision of the Court to what happened because all these courts have taken the position, the Supreme Court, Appellate Division, and the Court of Appeals have all taken the position that there’s nothing against the statements of this plaintiff on the question of any misconduct.

    The Court said at page 342, “In the event that I do not rule in favor of the defendant on the question of the validity of the Nevada decree and on the question of the domicile of the defendant in Nevada at that time, then of course if you have any evidence to offer in connection with your defense to the action of separation based on cruel and inhuman treatment and nonsupport, at that time you may be free to offer whatever evidence you may want to in connection with that particular phase of the case.”

    So then the motion was determined and the Court holds at page 348 and as recited right in the judgment which is appealed from — rather page 344, bottom paragraph.

    The first affirmative defense of the defendant therefore is a bar to the plaintiff’s action for a separation.

    And being sustained, the complaint bearing on this issue must be dismissed upon the merits.

    Now then, we have a dismissal on the merits.

    The Court then proceeds to take evidence in spite of the dismissal on the merits, the separation case is over.

    So the — the judge then does not hear any new testimony except on the income and the desire — income of the defendant and the desires of the plaintiff.

    We say that that has been a deprival of due process to us.

    We were called in to meet a separation case.

    We succeeded in having it dismissed on the merits.

    A dismissal on the merits means that we don’t have to go on but then the Court went ahead, listened to what the plaintiff said that she needed $3500 a month or something and awards her $250 a week et cetera, et cetera since the commencement of the action.

    That couldn’t happen to a New York man either because if you take a separation case in New York and you win the separation case against the woman, she’s entitled to nothing.

    But if you plead 1770-b and win your case, she’s entitled to maintenance, very interesting.

    It couldn’t happen to a New York citizen under any circumstances.

    I would like to withhold the balance of my time until the rebuttal with the Court’s permission.

    Monroe J. Winsten:

    May it please the Court.

    Mr. Rosenblatt has made many strong assertions which I do not believe can be legally sustained.

    On page 5 and 6 of my brief, I have attempted to set out in chronological order the operative facts of this case.

    Your Honors should bear in mind that this trial, although vigorously defendant was not attended by the defendant.

    He chose to remain absent from this trial for many significant reasons and the facts in this case are either established by uncontradicted evidence or by the defendant’s admissions.

    Monroe J. Winsten:

    However, in many instances, certain of those defendant’s admissions were inconsistent and contradictory.

    That is the only contradiction on the facts in this case.

    The contradictions made by the defendant himself in sworn or written admissions.

    Now, in 1945, we have an affidavit sworn to by the defendant that he was domicile in California since 1945.

    He made this affidavit in 1953 — or 1952.

    So that’s starting with 1945, the defendant is a California domiciliary.

    The marriage took place in 1948 in Connecticut.

    Mr. Rosenblatt’s claim that the defendant was a Nevada resident stands from this fact only that in his marriage certificate, he stated his residence as Nevada in 1952.

    As against that we have his contradictory statement in a sworn affidavit to the New York court in 1952.

    I should say that that statement was made in his marriage certificate in 1948.

    This sworn affidavit in 1952 says, however, “I have been a domiciliary of California since 1945.”

    Perhaps he might have been a resident of Nevada prior thereto but it’s not an operative significant fact of this case.

    Felix Frankfurter:

    Would it make a difference or what —

    Monroe J. Winsten:

    It would not, Your Honor.

    It doesn’t make a difference at all.

    Now, after this marriage the parties traveled extensively throughout the United States and throughout Europe and came to reside periodically in the defendant’s mother’s mansion on 5th Avenue.

    There was an apartment set aside for their residence when they came to New York.

    There was a nexus between these parties in New York.

    New York was not a stranger to these parties nor were they — that — were they strangers to New York.

    During their married life these parties never set foot together in the State of Nevada and I want to get that clear on the record.

    Felix Frankfurter:

    Does that make a difference?

    Monroe J. Winsten:

    It does not make a difference.

    Felix Frankfurter:

    (Voice Overlap) —

    Monroe J. Winsten:

    Although, Mr. Rosenblatt seems —

    Felix Frankfurter:

    How much of the —

    Monroe J. Winsten:

    — to think it does.

    Felix Frankfurter:

    — argument will be a matter that makes no difference.

    Monroe J. Winsten:

    All right, sir.

    The parties continued their residence and became domicile in California at the time the separation and the abandonment took place.

    After the abandonment took place, Mrs. Vanderbilt came to New York.

    Monroe J. Winsten:

    Now, there have been certain statements made by counsel which do not make a difference and I want to point them out, if Your Honors please.

    Hugo L. Black:

    Would you mind stating first what you understand the issue legally should be.

    Monroe J. Winsten:

    Yes, Your Honor.

    The legal issue as raised by the petitioner here —

    Hugo L. Black:

    Well, is that the — what you understand that these are legal issues?

    Monroe J. Winsten:

    That’s right, sir.

    Although, I do not think there is a legal issue or a substantial federal question involved in this case.

    But I can — I’ll state to Your Honor what I understand to be the legal issue claimed by the petitioner.

    Felix Frankfurter:

    You mean that the legal issue — there was no federal question raised below, is that what you mean?

    Monroe J. Winsten:

    I believe that they have raised frivolous by the federal questions and not substantial ones.

    His chief contention seems to be, Your Honor, that New York has failed to accord full faith and credit to this ex parte Nevada divorce decree based on constructive service in which the wife failed to appear, answer or defend and although whom the Nevada Court failed to acquire any personal jurisdiction.

    Hugo L. Black:

    What’s your answer to that?

    Monroe J. Winsten:

    My answer to that is this.

    There is no full faith and credit question involved in this case for two separate and distinct reasons.

    All of — both of these reasons have been covered by the three opinions of this Court in the case of Armstrong against Armstrong.

    The first reason and then the principal reason rest upon Pennoyer against Neff and Estin against Estin, based upon the jurisdictional basis for the Nevada court’s rendition of that ex parte divorce decree.

    Nevada did not have any in personam jurisdiction over the defendant wife when it rendered this divorce decree against her.

    Consequently, when New York accorded recognition to the Nevada decree, insofar as it dissolved the marital status, it has accorded the fullest faith and credit which the Nevada decree was entitled under the Federal Constitution.

    Hugo L. Black:

    Is there any other issue here but the —

    Monroe J. Winsten:

    I don’t believe there is, Your Honor.

    However, counsel has raised questions of discrimination.

    He has raised an issue.

    I believe it’s a framed issue and not a true issue, Your Honor.

    Hugo L. Black:

    What is the other issues that you understand, this legal issue?

    Monroe J. Winsten:

    Yes, Your Honor.

    Hugo L. Black:

    Besides the fact that the difference between you.

    He says you have not — the New York did not give full faith and credit to this divorce decree.

    You say they did because they recognize it as dissolution of the marriage.

    Monroe J. Winsten:

    Yes, Your Honor.

    Hugo L. Black:

    Now, what is the other ground which you understand?

    Monroe J. Winsten:

    My other ground is this, that Nevada in rendering this decree, I do not believe, considered or decided the issue of maintenance in alimony here.

    Hugo L. Black:

    Suppose they had, what would you say?

    Monroe J. Winsten:

    If they had, then I might fall back to Pennoyer against Neff and Estin against Estin because they had no jurisdiction to decide it.

    That’s why at the outset of my — of this point I said for two separate and distinct reasons, they have not failed to accord full faith and credit.

    Hugo L. Black:

    One of them is, you say they did not purport to do it.

    In the other deals as you say if they did purport to do it, they didn’t have a constitutional right to do so.

    Monroe J. Winsten:

    Your — that’s correct, Your Honor.

    Both of these arguments raised — rest on separate and distinct grounds.

    Now, in support of my last statement that they did not purport to decide the issue of maintenance, defendant’s Exhibit A is the complete record of the Nevada proceeding.

    The — the complaint makes no reference to alimony.

    The testimony contains no reference to alimony.

    The findings contains — contained no reference to alimony and the judgment is merely couched in general terms that the marriage is dissolved and the parties are relieved from further obligations with respect to the marriage.

    Under Nevada law, doesn’t that mean that Nevada determined that she was not entitled in — in alimony?

    Monroe J. Winsten:

    Well, if Your Honor pleases.

    I have appended to my — as an appendix to my brief on page 38, the section of the Nevada law referring to alimony.

    How about the Sweeney case in — was that the name of it in Nevada?

    Monroe J. Winsten:

    Yes, the Sweeney case, Your Honor, is a Nevada case.

    (Voice Overlap) in New York as holding according to the New York’s interpretation of the Nevada law that the decree does have the effect that your opponent claims under Nevada law, irrespective of whether constitutionally it could have that effect.

    Monroe J. Winsten:

    Yes.

    Well, as against the Sweeney case, Your Honor, this is my analysis and of my — and my interpretation of the decree in the record in this Nevada case, we are faced with the statute in Nevada which permits the grant of maintenance notwithstanding marital fault.

    In other words, Nevada under that statute may grant maintenance to a wife even though the Court should hold that she was a guilty and not an innocent party.

    And that statute contemplates an inquiry by the Court into the financial means of both parties, their resources, in order to determine whether even a guilty wife may be awarded maintenance.

    Now, with that background, with that statutory background, also with the background of the Estin case and Pennoyer against Neff, and in the absence of any inquiry by the Nevada court into the financial circumstances and bearing in mind that the Nevada court could have granted alimony to a guilty wife, I believe that the record justifies a presumption that the — that the Nevada court did not purport to disregard the decisions of this Court in Estin against Estin with respect to its jurisdictional power to determine personal rights of an absentee non-resident spouse.

    That is the basis upon which I make that second assertion, if Your Honor pleases, with the background of that Nevada statute.

    Now, I would like to refer for a moment to this first separation action, which counsel has mentioned, merely for the purpose of indicating that it does not belong in this case.

    This first action was based upon — it was an action for separation and was dismissed upon the finding that the plaintiff had not satisfied the residential requirements for the maintenance of an action in New York, therefore dismissed for lack of jurisdiction.

    Well, after that action had been dismissed and while an abortive appeal was pending at that time, the defendant went to Nevada and commenced this divorce action, ex parte by publication.

    When plaintiff was served with these papers in New York, her counsel at that time made a motion in that action which had been dismissed to enjoin the prosecution of a Nevada action.

    That motion was determined on July 3rd, which was three days after the defendant obtained his ex parte divorce decree in Nevada.

    The motion was therefore denied on a two-fold ground.

    Monroe J. Winsten:

    First, that a motion for an injunction could not be granted in an action which had already been dismissed for lack of jurisdiction.

    That was the chief problem.

    However, the secondary ground was that the Nevada action having already proceeded the judgment, an action to enjoin the prosecution of that action was moot and academic.

    Therefore, there is absolutely no basis for that case have — even being mentioned in this case.

    It has absolutely no bearing and that’s the point I wanted to make with respect to that.

    Now —

    Could I put a question to you?

    Monroe J. Winsten:

    Yes, Your Honor.

    Assuming that one would conclude that Nevada undertook to adjudicate alimony and assuming that the further conclusion that constitutionally, it had the power to do so, what’s left of your case?

    Monroe J. Winsten:

    If this Court were to hold that the Nevada court in an ex parte proceeding had the right to divest an absentee non-resident defendant of personal rights, then this Court would have had to hold that the Nevada court had rendered an in personam judgment against this wife, divesting her of her personal rights, that such a holding would be directly antithetical to the holding of this Court in the Estin case.

    Felix Frankfurter:

    But the Estin case did not hold that.

    The Estin case is a totally different proposition.

    The Estin case holds that a later divorce in Nevada cannot supplant an earlier imposition of obligation in New York and that’s all Estin holds.

    The question there was whether the later divorce could displace an obligation which New York had the right at the time that imposed it to impose.

    Monroe J. Winsten:

    By a judgment, Your Honor?

    Felix Frankfurter:

    By a judgment in the maintenance —

    Monroe J. Winsten:

    Well —

    Felix Frankfurter:

    — and support case in Estin (Voice Overlap) —

    Monroe J. Winsten:

    Well, is Your Honor limiting — would Your Honor limit the holding in the Estin case to a case where only a judgment was rendered?

    Felix Frankfurter:

    I’m limiting the Estin case to what the Estin case was based on.

    I’m not saying that’s the last word in a different situation.

    Monroe J. Winsten:

    Well, as I read the Estin —

    Felix Frankfurter:

    But I’d like to hold decisions to what they decide —

    Monroe J. Winsten:

    Yes.

    Felix Frankfurter:

    — and not something else.

    Monroe J. Winsten:

    However, the rationale of the Estin case was not limited to —

    Felix Frankfurter:

    I don’t know what that means.

    Monroe J. Winsten:

    — the fact that there was a judgment there.

    Felix Frankfurter:

    I don’t know what that means, it wasn’t limited.

    It dealt with the situation of whether a later divorce render — can render null and void and displace, as I said earlier, a prior valid judgment by a New York court.

    Monroe J. Winsten:

    Well, the difference between the Estin case and the case we have here is that the right of being supported by the husband has not been reduced to judgment, wherein the Estin case it has been.

    Felix Frankfurter:

    Well, as I understand the case here is the divorce in Nevada prior thereto no obligation defined or exercised power to impose an obligation exercised by New York.

    But after divorce, New York says, “This ex-wife is entitled to maintenance.”

    Isn’t that this case?

    Monroe J. Winsten:

    Yes, I agree with Your Honor.

    However, I disagree with Your Honor when Your Honor says no obligation —

    Felix Frankfurter:

    Well, I (Voice Overlap) —

    Monroe J. Winsten:

    — defined, yes.

    Not defined, yes.

    But not — I would not say that there was no obligation because we must bear this in mind, Your Honor, this woman was a domiciliary of New York when the defendant went to Nevada and when the defendant acquired his so-called ex parte divorce decree, she was subject to the laws, entitled to the benefits and protection of the laws of New York as a domiciliary of New York.

    Felix Frankfurter:

    That’s an appropriate argument for you to urge that this Court should in this case hold that that furnishes constitutional power for New York to impose an obligation.

    I’m trying to hold you to what Estin decided, and Estin decided whether or not Nevada because she later divorced the person who then had a right under the New York — a declared right, not an argumentative right out of which you get a right but an existing declared obligation whether that was determining, whether that was held because lately there was a divorce.

    That — this case is the opposite of that, namely, Nevada comes first, take action and the question is and that you can argue, the way you can argue as I understand that.

    Monroe J. Winsten:

    Yes.

    Felix Frankfurter:

    But that is in Estin.

    Monroe J. Winsten:

    Naturally, the distinction between the Estin case, as Mr. Justice Black pointed out in the Armstrong opinion, was that in the Estin case she was fortunate enough to have acquired a judgment before, whereas in this case, the defendant won his race for judgment by departing for — for Nevada with a six-week residential requirement where she was domicile in New York with a one year residential requirement.

    Felix Frankfurter:

    That’s a perfectly good argument for you to make but it’s an argument and not what Estin decided, not what Armstrong decided.

    Monroe J. Winsten:

    Well, the Estin case, as I interpret the Estin case, was decided upon a much broader base, a much broader rationale than the narrow fact that she had a judgment.

    Felix Frankfurter:

    A little thing like that, whether or not Nevada could — has the power to undue a valid exercise of power by New York trial thereto.

    A little difference like that.

    Very often in light that makes a difference who comes first.

    Monroe J. Winsten:

    Well, I don’t think it made a difference here, Your Honor.

    Felix Frankfurter:

    Well, I can understand your argument there but don’t say we decided that.

    Monroe J. Winsten:

    I — my impression of —

    Hugo L. Black:

    (Voice Overlap) —

    Monroe J. Winsten:

    — Mr. Justice Douglas’ —

    Hugo L. Black:

    You have the liberty of course to argue that we decided and rather trying to believe with you.

    Monroe J. Winsten:

    And I believe —

    Hugo L. Black:

    And you would argue with the words.

    Monroe J. Winsten:

    — that that was the — the rationale behind the case because otherwise, we wouldn’t be using Pennoyer against Neff in the Estin case’s authority on the question of the power, the jurisdictional power.

    William O. Douglas:

    There were some dissents in Estin, weren’t there?

    Monroe J. Winsten:

    There was a dissent by Mr. Justice Frankfurter, Your Honor, and by Mr. — by Mr. Justice Jackson.

    Felix Frankfurter:

    And because there were dissents, the case stands for more than it stood, is that it?

    Monroe J. Winsten:

    No, Your Honor’s dissent was based upon your inability to discern whether the New York Court of Appeals discriminated against foreign judgments.

    That was Your Honor’s dissent in that case.

    However, I do not believe Your Honor’s dissent extended it — extended beyond that.

    Felix Frankfurter:

    You pay no attention to my dissent.

    Concentrate on what the Court decides.

    Monroe J. Winsten:

    Very well, sir.

    Now, I believe I am justified in contending that in the prevailing opinion in the Estin case that the Court — that this Court was of the opinion that it was not deciding the Estin case upon a narrow fact of the — that she had obtained a judgment.

    It was deciding the case on a broader basis and there was a question of —

    Felix Frankfurter:

    Where do you — will you — may I ask you how you get what a court decide other than — otherwise than to the — through the Court statement of what the issue is which it is about to decide.

    Let me read you.

    The case here and this case here on certiorari present an important question under the Full Faith and Credit Clause.

    It is — it is, that’s the question, it is whether a New York decree awarding the respondent $180 per month for maintenance and support in a separation proceeding survived a Nevada divorce decree which he separate — subsequently was granted.

    What you’re arguing is that those words, whether it survived a Nevada decree subsequently granted were supplant which is immaterial, redundant, have no meaning.

    Monroe J. Winsten:

    Of course not.

    I do not make that contention, Your Honor.

    But I believe —

    Felix Frankfurter:

    Well, I suppose when this Court states what the issue is that’s the issue, not something else.

    Monroe J. Winsten:

    Nevertheless.

    Hugo L. Black:

    You can argue what you think about the rest of the opinion too if you decide of course.

    Monroe J. Winsten:

    Now, the balance —

    Felix Frankfurter:

    You cannot do anything.

    Monroe J. Winsten:

    Yes.

    Felix Frankfurter:

    You can get any use of your time that you please.

    Monroe J. Winsten:

    Yes, Your Honor.

    Felix Frankfurter:

    I’m merely directing counsel —

    Hugo L. Black:

    And I will extend your time if you lose too much of it.

    Felix Frankfurter:

    And I’m directing counsel’s attention to the fact that opinions has to be read in the light of what they decide —

    Monroe J. Winsten:

    Yes.

    Felix Frankfurter:

    — and not what is hoped will be subsequent, derivations from it.

    Monroe J. Winsten:

    If Your Honor —

    Felix Frankfurter:

    You could do anything you please with your time.

    And the mere fact that questions are asked do not usually extend counsel’s time.

    Monroe J. Winsten:

    If Your Honor pleases —

    Hugo L. Black:

    Well, in this case if you — if you don’t have enough time, I will extend your time.

    Monroe J. Winsten:

    Thank you, Your Honor.

    The way I have read the balance of the opinion of the Estin case indicates to me as my belief that this Court did not intend to interpret the situation upon the narrow base of a prior judgment and that belief is strengthened by Mr. Justice’s — Justice Black’s concurring opinion in the Armstrong case where he said just that.

    Mr. Justice Black in his opinion in the Armstrong case said this that Mrs. Estin’s right reduced to judgment was no greater a right than Mrs. Armstrong’s right unreduced to judgment, and they were both entitled to the protection of the Due Process Clause of the Federal Constitution, that no state could divest those rights, personal rights.

    One reduced to judgment, the other unreduced to judgment without due process of law.

    And due process of law implies jurisdiction to render a judgment against the person and having that person before that court and under its jurisdiction.

    For those reasons I have interpreted, the Estin case to me what I said I did.

    Now, going to the next question of discrimination, that question is brought — has been brought into this case and I believe that it doesn’t belong here.

    We are not required to grope for the legislative intent in this case.

    The legislative intent in this case is furnished by the report of the Law Revision Commission and when the Law Revision Commission proposed this legislation with respect to discrimination it said, “In order to avoid discrimination,” I quote that on page 25 of my brief, “Against foreign divorces,” against which the Estin opinion won.

    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.”

    Now, I don’t know how and won’t clearly nondiscrimination could have been expressed on that.

    And looking at the statute itself which is in the petitioner’s brief on page 4, the statute does not delimit the ex parte judgment to those rendered in foreign jurisdictions.

    It talks about ex parte judgments rendered in all jurisdictions including New York.

    And the New York Court of Appeals in this case, when the question of discrimination was raised below, reaffirmed the interpretation and the intent of the Law Revision Commission by saying that it did not interpret this statute as having no effect on New York judgments, that it did interpret the statute as having equal effect on New York judgments.

    And Mr. Rosenblatt, when he — in response to Mr. Justice Harlan’s question on that point, started to read at a point subsequent to the — this declaration of the New York Court of Appeals in this case and this is what the New York Court of Appeals said, he didn’t begin on page 546, he began on page 547.

    And on — in 546 of the record the Court of Appeals said, “As to defendant’s first assumption there is nothing in our statute to support the conclusion that it is inapplicable where the prior judgment was obtained in New York.”

    Well, the Law Revision Commission report a recommendation certainly makes no such distinction but instead recommends applicability whether the husband’s ex parte adjudication of marital status was obtained in a foreign court or a New York court, page 468.

    Actually, the basis for this assumption by defendant is an idea which pervades defendant’s whole argument and that is whether this fundamental and unchangeable law, New York law, that an already divorced wife may never be awarded maintenance by a New York court and that an action for separation or divorce in New York presupposes an existing valid marriage.

    Assuming — assuming your client had gone into Florida which she had no connection whatever, do you think the case would be any different from your standpoint than it is now?

    Monroe J. Winsten:

    If my client became a domiciliary of Florida as —

    She had gone into Florida with which she had no connection prior to the Nevada decree and had then gone in, in Florida and had a statute of this kind which she had sought to avail herself of the Florida statute, would your case be any different in your view?

    Monroe J. Winsten:

    It would not, sir, for this reason.

    The question of whether a State may — will or will not entertain an action is a matter purely of state power it’s — within the — the State’s share of interest to determine whether it should entertain such an action.

    Well, that isn’t quite my point.

    As I take it in your answer to me you indicate that whether she was domiciled in New York or not, it is a matter of irrelevancy so far as your position is concerned.

    Monroe J. Winsten:

    Oh, no, sir.

    She must be domiciled in New York in order to be — to avail herself of the benefits of New York legislation.

    A State doesn’t have any legitimate interest in a person or litigant who was not domiciled within the State.

    I didn’t intend to preclude the question of domicile.

    Domicile is a very important thing and she became domiciled when she came here.

    Her domiciling within the State arouses a — an interest of a State in its domiciliaries and entitles the State to protect those domiciliaries and domicile is an important thing.

    Now, if this woman had gone to Florida and she became domiciled in Florida that was what I was understood your question to mean.

    Supposing Florida had had a statute like New York and said anybody after 20 days of residence in the State can maintain this kind of an action.

    Would your case be any different from your view?

    Monroe J. Winsten:

    Not if this Court —

    What we have here now.

    Monroe J. Winsten:

    Not if this Court continues in its refusal to examine into the State’s power with respect to those matrimonial actions.

    For example, here we have New York with a none — one year residence, we have Nevada with a six — with a six-week residence, we have Florida with a three-month residence.

    This Court has never interfered with those requirements imposed as conditions precedent by the several states for the maintenance of actions.

    Now, when Your Honor reduces it to 20 days, it’s a question of degree.

    Would this Court be motivated into interfering with such a state statute because of the ridiculous — ridiculously short conditions preceding which the State proscribes.

    That would be the limitation of my answer to that question.

    However, if this Court felt that it could not jurisdictionally inquire into the problems of the State to reduce to a ridiculous situation, the domiciliary requirements, then I would say my answer would be the same if it was five days, if Your Honor pleases.

    Charles E. Whittaker:

    Now, in New York it’s one year?

    Monroe J. Winsten:

    It is, Your Honor.

    Charles E. Whittaker:

    Is this specific finding here that Mrs. Vanderbilt was a domiciliary of New York for the one year period preceding the execution of this action.

    Monroe J. Winsten:

    There is, sir —

    Charles E. Whittaker:

    Specific —

    Monroe J. Winsten:

    — absolutely an specific finding in everyone of the courts, the trial court, the Appellate Division and the Court of Appeals.

    Each of these courts had so found.

    What I’m trying to get at is this, is it your view that this Nevada decree was not entitled to a full faith and credit so far as alimony is concerned in any State, no matter what the defendant’s — what your client’s connection with that State was?

    If I already chose to take jurisdiction ten years from now to entertain your client’s action, ten years after the divorce in Nevada, could it be your position that Florida then could say notwithstanding the — the Nevada decree will take jurisdiction and adjudicate alimony?

    Monroe J. Winsten:

    Well, your question, Your Honor, implies a state of facts which are not in this case.

    Monroe J. Winsten:

    However, if — if Your Honor —

    (Voice Overlap) —

    Monroe J. Winsten:

    — Your Honor is going beyond that —

    –your position rests on this (Voice Overlap) —

    Monroe J. Winsten:

    Now, the point is this.

    You see in my case here, we have this wife, a resident of New York at the time this divorce was rendered and in fact before this defendant went to Nevada to establish his domicile, you are now giving me a different question.

    You’re asking me whether what my answer would be, where a divorce has been rendered and she was a resident of say New Mexico and then —

    Charles E. Whittaker:

    Is there is a specific finding on that question to — in the record here that Mr. Vanderbilt was a domiciliary of New York before the institution of the divorce doctrine in Nevada?

    Monroe J. Winsten:

    Yes, Your Honor, there is a specific finding to that effect too in all of the courts, in all of the opinions here.

    Now, I wouldn’t be prepared to go out on a limb and answer Your Honor’s question where we — I must assume that she was domicile in a State other than Florida when her — when the Nevada case was decided for this reason.

    One of the corollaries of the Estin case is this that the question of enforcement, a post-divorce maintenance is a question of state policy entirely.

    Now, it may be in response to your — as a necessary element in answer to your — Your Honor’s question that she may have been domicile in a State which didn’t recognize post-divorce maintenance.

    Let’s say she was in New Mexico and New Mexico did not have the public policy that New York has.

    New Mexico said that if a wife is divorced that’s all there is to it, there is no survival.

    We will not enforce any post-marital — post-divorce, rather, maintenance.

    Under those circumstances my answer to Your Honor’s question would have to be no that she couldn’t go to — possibly couldn’t go to Florida having been a domiciliary of a State which did not recognize post-divorce maintenance when the divorce was — was obtained.

    But you see that question does not present itself here because she was a resident of a State — of the State of New York which had declared its public policy to be that we will recognize post-divorce maintenance where the maintenance — where the divorce was rendered in a constructive service action.

    William J. Brennan, Jr.:

    Well, does that mean for example that New York domiciliary wives who — as to whom they were ex parte divorce is just as this and who lived in the State of New York before New York recognized post-divorce maintenance would not be able to avail themselves of this statute in New York today?

    Monroe J. Winsten:

    I do not mean that, sir, because the —

    William J. Brennan, Jr.:

    As I understand it here, Mrs. Vanderbilt acquired a New York domicile when this statute was on the books?

    Monroe J. Winsten:

    No, prior to the enactment of this —

    William J. Brennan, Jr.:

    Prior to the enactment?

    Monroe J. Winsten:

    Yes, Your Honor.

    She acquired her New York domicile in February of 1953.

    William J. Brennan, Jr.:

    And when was this statute?

    Monroe J. Winsten:

    This statute was enacted on April 13th, 1953.

    He acquired his residence in between in Nevada in March of 1953.

    He went to Nevada in March.

    The statute was enacted in April.

    He started his Nevada divorce action in June and obtained the ex parte divorce in June.

    William J. Brennan, Jr.:

    And if the —

    Monroe J. Winsten:

    That was the sequence of events there.

    William J. Brennan, Jr.:

    Suppose he’d moved out to Nevada a month earlier and had obtained his divorce a week or two before this New York statute became effective?

    Monroe J. Winsten:

    Well, then we would have a question of conflict of laws as to whether or not the applicable law in existence at the time the divorce decree is rendered would fix the wife’s rights at that particular time.

    However, there was a conflict in the forces here because on the one hand we’re dealing with jurisdictional power, the jurisdictional power of the Nevada court to extend its judgment beyond its borders against non-residents and adjudicate upon that personal right.

    William J. Brennan, Jr.:

    Well, that’s why I don’t quite understand why you answered Justice Harlan that it might depend in the New Mexico case that should been a domiciliary of New Mexico on New Mexico’s law at the time of the divorce.

    What difference does it make on — as I understand your argument, basically it is that based on Estin, Armstrong, Pennoyer and Neff, Nevada could not in anywise by its decree affect personal rights.

    Monroe J. Winsten:

    That’s right, sir.

    William J. Brennan, Jr.:

    Well, then what difference does it make whether in a given State where she was a domiciliary at the time they don’t recognize any personal right.

    Monroe J. Winsten:

    Well, I agree with Your Honor that it makes no —

    William J. Brennan, Jr.:

    Don’t agree with me.

    I — I don’t —

    Monroe J. Winsten:

    No, I agree with you in this respect, that with respect to jurisdictional power to divest a personal right it makes no difference, but possibly it might make a difference, I don’t say that it does, it might possibly make a difference if at the time this divorce was rendered she was a domiciliary of a State which said we don’t recognize any survival of your rights to be supported (Voice Overlap) —

    William J. Brennan, Jr.:

    Now, how could it make a difference?

    Monroe J. Winsten:

    — might make a difference —

    William J. Brennan, Jr.:

    How?

    Monroe J. Winsten:

    — under those circumstances.

    William J. Brennan, Jr.:

    How?

    I don’t understand —

    Monroe J. Winsten:

    Because —

    William J. Brennan, Jr.:

    (Voice Overlap) question, how could it make a difference?

    Monroe J. Winsten:

    Because as a question of conflict with laws, possibly she was a resident of a State which said maintenance does not survive a divorce whether rendered in personam or in rem.

    That State says that and she was a resident of that State.

    Perhaps she might go to another State thereafter and that State may say, “You went from a State which said that your rights were extinguished by an ex parte divorce.”

    I’m not talking about Nevada because Nevada had no constitutional power to extinguish it.

    I’m only talking about the domiciliary State whether that State recognize its survival and enforcement.

    She may go to another State and that State might have said, “Well, you’re a domicile in a State which didn’t recognize its survival.

    Therefore, we will not enforce it.”

    Not because Nevada had any greater power to extinguish it, but because the State in which she was domiciliary didn’t — as a matter of public policy didn’t recognize its survival.

    William J. Brennan, Jr.:

    Well, I thought you were also arguing, however, that the nexus under this statute is her domicile in the State of New York?

    William J. Brennan, Jr.:

    That —

    Monroe J. Winsten:

    Yes.

    William J. Brennan, Jr.:

    That the nexus with New York by reason of her domicile there is the reason that New York may give her the relief that this statute provides.

    Monroe J. Winsten:

    That’s correct, sir.

    William J. Brennan, Jr.:

    Well, if that’s the fact then — then I don’t follow you why anything that New Mexico could do could affect that basis of New York power.

    Monroe J. Winsten:

    I — I never contended otherwise, if Your Honor pleases.

    In New York we have a definite public policy recognizing — recognizing post-divorce maintenance, survival and enforcement.

    William J. Brennan, Jr.:

    Of domiciliaries?

    Monroe J. Winsten:

    Of a domiciliary.

    William J. Brennan, Jr.:

    Well, then what difference does it make?What, as a domiciliary of New Mexico, New Mexico may have done in respect of not recognizing that she had any rights, that they were cut off so long as she was a New Mexico domiciliary?

    Monroe J. Winsten:

    Well, I am not prepared to answer that situation which is not present here.

    It might possibly — New York might possibly say in that case, “You were domiciled in New Mexico which said that your rights were extinguished even by an ex parte —

    William J. Brennan, Jr.:

    There’s nothing in this statute which suggest that, isn’t (Voice Overlap) —

    Monroe J. Winsten:

    No, sir, absolutely nothing.

    William J. Brennan, Jr.:

    The statute is based only, as I understand it, upon the one invoking its benefits, establishing domicile in New York.

    Monroe J. Winsten:

    That’s right.

    William J. Brennan, Jr.:

    For the requisite period.

    Monroe J. Winsten:

    That’s right, sir.

    Felix Frankfurter:

    And does it — why do you think it makes any difference whether the time when the divorce was granted in relation to the passage of the statute have anything to do with this?

    Monroe J. Winsten:

    I don’t think it makes any difference, but —

    Felix Frankfurter:

    Well (Voice Overlap) —

    Monroe J. Winsten:

    — I think it’s to our advantage that it did happen that way.

    Felix Frankfurter:

    Well, it’s irrelevant, isn’t it?

    Monroe J. Winsten:

    It’s certainly is, Your Honor.

    Felix Frankfurter:

    And it’s irrelevant as to when she became a domiciliary, except for the time period, isn’t it?

    Monroe J. Winsten:

    Yes, it is.

    Felix Frankfurter:

    Well, I’m confused —

    Monroe J. Winsten:

    It’s — no, there is a point that I must disagree with Your Honor as far as this goes.

    Felix Frankfurter:

    I’m not disagreeing with you.

    Monroe J. Winsten:

    Yes.

    Felix Frankfurter:

    I’m going beyond your own support for your own position.

    Monroe J. Winsten:

    Now, I say this, Your Honor.

    I don’t say that time element is wholly irrelevant because of what I said to Mr. Justice Brennan.

    I said perhaps if she were resident of a State which had a public policy saying that we will not recognize post-divorce maintenance.

    Felix Frankfurter:

    At the time of the divorce?

    Monroe J. Winsten:

    At the time of divorce, that might make a difference.

    Felix Frankfurter:

    And so if later on the State says, “There are so many ex-wives in our State who are at large and we now enunciate a new policy that all ex-wives may bring maintenance proceedings against their former husband.”

    Why is that any less constitutional than this?

    I don’t see that.

    Monroe J. Winsten:

    I don’t see it either.

    I’m trying to agree with Your Honor in principle.

    I do not disagree with it.

    I’m just saying that possibly that may be an argument — now, I’m not prepared to sustain that argument here.

    Felix Frankfurter:

    This is all a question of whether a State have, as Justice Brennan indicated a minute ago, a State may by virtue of the fact that it affect citizens of its own, domiciliaries of its own, may provide that the ex-husband should maintain the ex-wife.

    Monroe J. Winsten:

    That is —

    Felix Frankfurter:

    That — that’s what you ultimately have to rest on?

    Monroe J. Winsten:

    Exactly, Your Honor.

    Felix Frankfurter:

    And I — I should —

    Monroe J. Winsten:

    Precisely.

    Felix Frankfurter:

    — I think it makes no difference whether that preceded a divorce of that policy, preceded a divorce or follow the divorce, as far as I can see about constitutional power.

    Monroe J. Winsten:

    I — I agree with Your Honor as far as that is concerned, but I am not, under these facts, required to argue that point or extend the matter to that extent.

    However, what Your Honor says is quite true because under Maynard against Hill in 125 U.S., this Court has held that when a person — when two parties are married they have subjected themselves to whatever laws the State may enact at any subsequent time which may alter their rights and obligations.

    And in —

    Felix Frankfurter:

    But I don’t think that case helps you any because that, in the first place it is, (Inaudible) outmoded.

    I don’t believe that decision would hold today.

    That was the last remnant of recognizing legislative divorces.

    Monroe J. Winsten:

    Well, I don’t — I didn’t indicate it for the purpose of a legislative divorce.

    I — I used — I referred to that case for the purpose of indicating what the parties subject themselves to by entering into the marital relationship.

    It is not purely a contractual relation.

    It is a relationship to which the status of party and on — in that relationship the State may subsequently enact a legislation which may alter those rights.

    Monroe J. Winsten:

    Nobody has a vested right to legislation or his marital rights and obligations that exist on the date the marriage is contracted.

    It may be altered subsequently by the State in trying to find —

    Felix Frankfurter:

    That’s a nice way of simplifying a problem in a unitary State but it isn’t that way with us where we’ve got right to a different State pulling in different direction.

    Monroe J. Winsten:

    Yes.

    Now, on the question of discrimination I think I have indicated that the New York Court of Appeals has quite clearly indicated that it construes this statute to be non-discriminatory, that it applies with equal effect to New York judgments as well as those rendered in foreign and its sister states.

    And I think that interpretation is not subject to review by this Court in view of the fact that this Court does accept the interpretation of state statutes as placed upon it by the highest court of the State in — in which it was enacted.

    William J. Brennan, Jr.:

    Well now, your refer this to this quote at 547?

    Monroe J. Winsten:

    Yes, Your Honor.

    William J. Brennan, Jr.:

    You didn’t get quite to the sentence but Section 1170-b to the extent that it applies has changed that old New York policy, that is on ex parte in New York —

    Monroe J. Winsten:

    That’s right.

    William J. Brennan, Jr.:

    — divorces.

    Is that what you say is a holding?

    Monroe J. Winsten:

    No, I — I read that in connection — the part that I did read, I read in connection with the point of discrimination.

    William J. Brennan, Jr.:

    Well, then let me ask this question.

    Is that a holding that if ever there was a New York law which gave the effect to ex parte divorces that your adversary insist New York law did, this is a holding that that law was changed by 1170-b?

    Monroe J. Winsten:

    Precisely, Your Honor.

    You see the petitioner in this case has argued both orally and in his brief and used the technique which was rejected by this Court in the Estin case.

    In order to attempt to demonstrate the impropriety of this statue, he has taken all the New York authorities and placed them side by his side with this statute and said they’re inconsistent but the trouble with that type of technique is this, that when the statute is enacted, it is the intent of the legislature to change preexisting either decisional or statutory rules which are inconsistent with the newest enactment.

    Now, no one can deny that the New York legislature may change a rule of law or change a statutory rule by the enactment of a legislation which doesn’t violate the Due Process Clause of the Constitution.

    William J. Brennan, Jr.:

    Incidentally, has the New York Court of Appeals spoken in any other case since this decision on this subject?

    Monroe J. Winsten:

    Not on this question, Your Honor.

    It has passed on — at least there was before it some question of temporary alimony which is not on the issue here and I don’t think it has been decided yet.

    Now, that brings me to the question of due process of law.

    Now, petitioner has argued that this case was dismissed.

    Therefore, there was nothing left for this Court to decide in this case.

    That is not quite accurate.

    The complaint in this case contains two causes of action, one for cruelty and one for abandonment.

    And as for three types of relief and they are enumerated, one, a separation from bed and board, two, support and maintenance, three, such other in further relief, the usual equity prayer.

    Petitioner would have or rather criticizes the plaintiff for having pleaded and prepared a complaint in strict conformity with the cardinal principles of pleading.

    And there are two principles which I have in mind.

    Monroe J. Winsten:

    One is that you are not required to anticipate a defense in a complaint and secondly, you are not required, in fact you are prohibited from pleading conclusions of law.

    Here is a complaint which is broad enough to sustain an award of maintenance with a separation or without a separation.

    We are not required to plead any reference to the statute or for that matter to any decision under which this complaint may be drawn.

    This complaint was drawn with — on the basis of affording either the relief of a separation or maintenance and it was broad enough to sustain either type of relief, so that when the trial court during the course of the trial had determined and — and reached the point where it had determined that plaintiff had not sustained her burden of demonstrating the lack of bona fides of the Nevada residence of the defendant.

    He decided that the divorce — the Nevada decree was a — was jurisdictionally valid and constituted a bar to a separation.

    However, in making that ruling, the Court did not dismiss the complaint in its entirety.

    It merely denied the relief of a separation that was asked in the first prayer of the complaint and if there is any question about it, this is what occurred.

    After the trial court made its ruling on that score, I desired to be — to have further clarification of that ruling and this is what occurred at page 345 of the record and I’ll quote it.

    It’s quoted on page 32 of my brief as a footnote.

    Mr. Winsten, “That it is my understanding from Your Honor’s ruling that the complaint is not dismissed in its entirety.”

    The Court has merely denied the relief of separation but it is entertaining the action and the complaint insofar as it request support and maintenance.

    The Court, “There’s any question about it that is exactly what I mean.”

    “I said I am continuing the case but that part of the complaint is dismissed.”

    So when counsel makes the statement to this Court that a complaint — the complaint was dismissed, that is not wholly accurate.

    The complaint — yes.

    May I ask you —

    Monroe J. Winsten:

    Yes.

    May I ask you a question —

    Monroe J. Winsten:

    Yes, Your Honor.

    — on the other subject?

    Under your view of Estin and Estin, it would mean that any dissatisfied wife could shop around for any jurisdiction that she has thought most favorable and subject to the laws of the particular jurisdiction, get an alimony adjudication despite the Nevada decree as it would be in this case.

    Monroe J. Winsten:

    Well —

    You don’t have to go that far and recognize it but you — as I understood you in answer to Justice Frankfurter, you would say you — you prepared to argue that if you had that kind of a case.

    Monroe J. Winsten:

    I would, sir.

    Therefore, what you’re saying in fact is that the domiciliary relationship of your client to New York gave New York a sufficient interest so that the point of view of full faith and credit, it did not have to recognize the Nevada decree.

    Is that your position?

    Monroe J. Winsten:

    That is my position.

    That as a domiciliary of New York, New York had — had a legitimate interest in her welfare?

    And in that, you’re assuming (a), that Nevada undertook to adjudicate alimony and (b), that it had the right to adjudicate alimony.

    You’re willing to assume that for the purposes of this argument?

    Monroe J. Winsten:

    Well, when you say the right, I never subscribed to the fact that Nevada had the right to adjudicate alimony against an absentee, nonresident —

    I understand that but of course if you’re right in that then all of this talk about whether she was domiciled or not becomes irrelevant because Nevada would not have the right.

    Monroe J. Winsten:

    That’s right.

    It couldn’t have adjudicated alimony.

    Monroe J. Winsten:

    That’s correct, sir.

    Therefore, when you — when you go back to your domiciliary point, it must be on the assumption that Nevada undertook to and could constitutionally adjudicate that right.

    And on constant because of New York’s interest in the — in the status of this woman, it did not have to give full faith and credit?

    Monroe J. Winsten:

    Well, I will not subscribe entirely to Your Honor’s statement where Your Honor says —

    Where am I —

    Monroe J. Winsten:

    — had the constitutional right.

    Where in my hope to deem on that, I’m just trying to get (Voice Overlap) —

    Monroe J. Winsten:

    In this respect, Your Honor.

    When you said that Nevada in — including in your assumption that Nevada had the constitutional right to adjudicate and deny alimony to an absentee defendant over whom would have no in personam jurisdiction.

    If you make that assumption, that destroys the whole concept of divisible divorce and Pennoyer against Neff because it is all based upon the concept of Pennoyer against Neff where the State cannot extend.

    If you are right in that then it seems to me the case is over.

    You won your case.

    Monroe J. Winsten:

    I believe so.

    But without regard to what connection this woman had, without connection to what stage you sued in or without anything more.

    Monroe J. Winsten:

    I would say so, Your Honor.

    But that is — doesn’t seem to be the position you take referring to (Voice Overlap) —

    Monroe J. Winsten:

    Well, the point is I’m not — do not have to take that position in this case.

    All right.

    Monroe J. Winsten:

    And I wouldn’t — didn’t come here prepared to defend such an extreme position.

    However, it may be possible that such a position would be constitutionally correct.

    Felix Frankfurter:

    May I — may I ask you to restate what you’re not prepared to defend?

    I just want to know because I — I’m (Voice Overlap) —

    Monroe J. Winsten:

    I am not prepared — I am not prepared to sustain a position where a divorce, an ex parte divorce was rendered against an absentee wife who was domicile in a State whose public policy was that it did not recognize survival of post-divorce maintenance whether rendered in a — in an in rem or an in personam action.

    Felix Frankfurter:

    At the time that the divorce —

    Monroe J. Winsten:

    At the time of the divorce.

    Felix Frankfurter:

    (Voice Overlap) the decree.

    Monroe J. Winsten:

    I’m not prepared to maintain that but that is not the case here because it is all based upon my fundamental principle that the recognition — an enforcement of post-divorce maintenance is a matter of state policy.

    It is not a federal question.

    And so long as it does not conflict with the Full Faith and Credit Clause of the Constitution, each State may for itself decide what its policy will be.

    Well, it can’t possibly conflict with the Full Faith and Credit Clause if — if either Nevada shouldn’t undertake to adjudicate alimony which is Armstrong against Armstrong —

    Monroe J. Winsten:

    Right.

    — or if, although it did undertake to adjudicate alimony, it had no power to do so —

    Monroe J. Winsten:

    Exactly.

    — under your interpretation of Estin against Estin.

    Monroe J. Winsten:

    Exactly, Your Honor.

    And therefore, everything else that you’ve argued is unnecessary (Voice Overlap) —

    Monroe J. Winsten:

    It is unnecessary as far as the constitutional question —

    Felix Frankfurter:

    May I suggest that there may be a different view.

    The fact that you don’t have to play — the fact that the Full Faith and Credit Clause doesn’t come into play, doesn’t ipso facto approve that a State can impose an obligation on one person for the maintenance of another.

    Monroe J. Winsten:

    That is another possibility, Your Honor.

    Felix Frankfurter:

    That — therefore, I don’t see that one follows from the other because it doesn’t have to — because the full faith and credit — because that divorce judgement doesn’t carry with it an adjudication that Smith need not support Mrs. Smith thereafter.

    From that, you don’t jump automatically that therefore the State of New York or any other State can say that Mr. Smith must support Mrs. Smith.

    The power for that — that exercise of power must rest on something else —

    Monroe J. Winsten:

    That’s right.

    Felix Frankfurter:

    — not merely that there was no adjudication.

    Monroe J. Winsten:

    That’s correct, Your Honor.

    William J. Brennan, Jr.:

    Mr. Winsten, I — I appreciate that it’s not here and I don’t want to take your time with it, but do you proceed in the other important aspect of divisible divorce, custody of children, somewhat the same problem if the children — if there were minor children non-residence of Nevada at the time it was —

    Felix Frankfurter:

    That’s the whole question.

    William J. Brennan, Jr.:

    — the divorce was obtained and the wife, the domiciliary of New York and the children with her in New York and do Nevada purported to make as part of its decree some provision for custody of the children that the same full faith and credit problem may arise?

    Monroe J. Winsten:

    Yes, Your Honor.

    In fact that that — that situation was presented in May against Anderson, decided by this Court where — I believe it was Wisconsin that an ex parte divorce decree was rendered in favor of a husband, awarding custody of the children to the husband where they’ll — the wife was an absentee non-resident.

    Subsequently, under a writ of habeas corpus that arose in Ohio brought by the wife, she proceeded to request custody of the children which the Wisconsin court had granted to the husband in an ex parte divorce and this Court affirmed the judgment of the Ohio court sustaining the writ precisely on that ground, if Your Honor pleases.

    On the ground that the Wisconsin — on one of the grounds, I would say, that the Wisconsin court did not have a power ex parte to divest the wife of one of those elements, in one of those placeable attributes of the merits.

    However, I don’t use May against Anderson as a complete authority because custody of children —

    William J. Brennan, Jr.:

    Well —

    Monroe J. Winsten:

    — are subject to a constant change and the — there may be other elements —

    William J. Brennan, Jr.:

    (Voice Overlap) patriae factor in that anyway, I suppose.

    Monroe J. Winsten:

    I didn’t hear Your Honor.

    William J. Brennan, Jr.:

    I say you have parens patriae involved in the State where the children actually are (Voice Overlap) —

    Monroe J. Winsten:

    That’s right.

    And of course circumstances may change with respect to the parties and under those conditions, an adjudication at one time may not —

    William J. Brennan, Jr.:

    Don’t take anymore of your time (Voice Overlap) —

    Monroe J. Winsten:

    All right, sir.

    Now, if Your Honor pleases, all in all, the basis which or the chief contention which petitioner — sir?

    The chief contention which the petitioner makes in — in this case involves two basic inconsistencies and what I mean at least two basic inconsistencies and one is this.

    Petitioner contends that he can unilaterally go to the State of Nevada and invoke its jurisdictional processes and obtain the benefits and protection of the laws of Nevada in obtaining his quickie divorce against a defendant based on constructive service, but nevertheless he says, this wife cannot unilaterally go into New York, establish her own domicile, if you please, and obtain the benefits and protection of the laws of her own domicile, the domicile of her own choosing.

    That is one of the basic inconsistencies in this case.

    He says that he can go from California to Nevada and get a perfectly good divorce based upon a unilateral domicile, but she cannot go from California to New York and obtain and invoke the protection of the laws of New York.

    Well, that argument is sort of a stand off, isn’t it?

    They’re both ex parte.

    Monroe J. Winsten:

    Well, this one is not ex parte in its — in this sense, if Your Honor pleases.

    New York did not purport to make an in personam judgment in this case.

    New York exercised its power, its jurisdictional power upon a reach that was sequestrated by the receiver here within its boarders.

    Therefore, even though in a sense and in a very vague sense this action is ex parte, this record shows that this action was not really an ex parte action.

    There are some 500 pages of testimony here in a seven-day trial and this was not an ex parte action in the sense that we understand it to be.

    But New York did not attempt —

    Your opponents got a pretty good argument on his side to rebut all that.

    This isn’t a case of the ordinary quickie divorce, this man was domiciled out there, and this is as far as this record shows.

    And so far as the in personam character of the divorce decree why you are simply begging for question that’s involved in Estin — Estin against Estin.

    Monroe J. Winsten:

    The — the defendant may have had some relationship with Nevada many years ago.

    I’m addressing myself to that aspect that Your Honor stated.

    However, he went to California and concededly established the domicile in California.

    What survives of his previous connection with Nevada at that point, I don’t know.

    I don’t think anything does.

    Therefore, when he left California again and went into Nevada, he was a new resident as far as I’m concerned of the State of Nevada, so that when he left California to go there he was — he had the status of any other person who came to Nevada for the first time.

    Hugo L. Black:

    Your time is up.

    Monroe J. Winsten:

    Your Honor?

    Hugo L. Black:

    Your time is up.

    Monroe J. Winsten:

    I’m sorry.

    Well —

    Sol A. Rosenblatt:

    The Court of Appeals said and by the way when this present action was instituted, the papers was served on the defendant in Nevada that there was sufficient evidence to justify the findings below as to the defendant’s good faith domiciled in Nevada.

    I quote from the record at page 542.

    “That proof included a showing that Nevada — defendant had lived in voted known property in Nevada for many years before his marriage to plaintiff that plaintiff and defendant lived there together in the early months of their marriage.

    That defendant returned there some months before the divorce and that defendant has continuously maintained his residence in Nevada since the divorce.”

    May it please the Court, I say that this was an ex parte decree rendered by New York because our rights were preserved in our answer by special permission of the New York court to continue our objections to both the jurisdiction of the Court in personam and in rem.

    Secondly, we have never appeared in personam in New York for the simple reason that in addition to confiscation of whatever assets he has, which will forever be under the egest of this sequestrator, might very well be put in jail at some point under the New York penal laws for contempt.

    I would like to say that whether the decree was rendered in Nevada, Alabama, New Jersey or any of the States requiring different periods of residents, my basic contention in this case on the full faith and credit point is that that decree whether its Nevada, Alabama, California, which was the domicile of these parties when they were separated, should be given the same full force and effect in New York as a New York ex parte decree.

    Now, Mr. Justice Harlan asked a very interesting question which I opposed in the Appellate Division to my opponent because since the decree was rendered in Nevada less than the period required for the plaintiff to have a residence requirement fulfilled in New York.

    In other words, she’d been there a little over three months and it took one year before her rights ripened into bringing an action, you can’t sue for divorce in New Jersey until you’ve observed the residential requirements for a number of years or in Alabama or any other State of the United States.

    So in New York it requires one year.

    This lady having taken residence in New York had no rights under the New York statute until one year had passed.

    In the meantime, she’d been divorced.

    Now, may it please the Court, when I asked the question, what would happen in the Appellate Division?

    What would happen if there were a New York decree and that decree have become final, could the lady, fleeing from New York to another jurisdiction, return to New York thereafter at some future time and then commence the proceeding for a divorce, swearing that she was married and asking for maintenance in New York, my friend gave the same answer, there he said they could.

    A New York man — New York woman could do that.

    It was on that basis that Mr. Justice Peck in the Appellate Division, presiding judge of the Court said at page 540, “I am unable to see how Section 1170-b would be made applicable to cases where the divorce was granted at the State of New York.”

    If it is not so applicable, it is discriminatory and violative of the constitutional provision respecting the equal protection of the law.

    So then I must then meet the question from the bench with respect to New York’s finding at page 546 and 547 brought out by Mr. Justice Brennan in the sentence but Section 1170-b to the extent that it applies as change that old New York policy and I said at the very outset of my argument if Your Honor will recall.

    I said, “I would stand on the question of full faith and credit in this case on the statement of the New York Court of Appeals following that statement that Nevada’s judgments put in evidence in New York are entitled to the same effect as they are given in Nevada and to avoid unconstitutional discrimination, the same effect New York’s own similar judgments are given in New York.”

    But I’m not here only on the question of how little faith and credit has been given to this Nevada decree, but I’m here on the question of the privileges and immunities of citizens of different States.

    I’m asking this Court to observe the admonition which was given to me years ago by a very famous law professor named Zechariah Chafee, now deceased, when he said that equity follows the law.

    I think that’s still good and I see no reason why, as applied in this case, equity should be made to follow the woman instead of the law.

    And that’s what’s been happening.

    Your Honors have said again and again and in the dissenting opinion in the Armstrong case, made the statement that the right of support is a property right.

    That doesn’t happen to be so under the law of New York.

    There is no such property right until it’s vest by determination of a court any more that there’s any right in a divorced woman to take an interest in their husbands estate which is given by New York law or for a divorced woman, divorced for cause in the State of New Jersey to enjoy dower which is an inchoate right also arising from the marital relationship.

    Sol A. Rosenblatt:

    These inchoate rights must flower in the property rights by decree of the courts.

    They cannot be established by a legislative action without a Court then observing their basis.

    Here, by dismissing this complaint and the judgment appealed from said so, says that this is an act of a separation and the complaint is dismissed on the merits.

    Page 3 of the record, what it says, “By dismissing this action for a separation and then going on to give maintenance is something that while intended perhaps well has been improperly and unconscionably brought about against this defendant in this case.”

    And I say that if you will study not only the prevailing but also the dissenting opinions, you will find that the interest which you found in the Estin prevailing opinion, where New York had an interest in this Estin woman and as observed by my friend that New York has an interest in Mrs. Vanderbilt.

    You will find at page 553, the very wise and sage observation of one of our great judges in New York, Judge Fuld, who says that even in this case, only by confining the statute to the situation where the wife had standing to institute the matrimonial action in this State at the time that the foreign divorce was granted, may New York’s dealings with such a broken marriage be restricted “to the matters of her dominant concern,” citing Estin versus Estin, and unseemly conflicts between this State and other jurisdictions avoidable.

    I think that Your Honors must understand clearly as what’s said by Judge Fuld at page 552, the bottom, at the time the Nevada judgment of divorce was rendered, plaintiff wife had no standing in New York to maintain the present action for separation and by that token had no enforceable right to invoke the benefits of the Section.

    Hugo L. Black:

    May I ask you one question —

    Sol A. Rosenblatt:

    Of course, sir.

    Hugo L. Black:

    — before you sit down.

    Sol A. Rosenblatt:

    Of course, sir.

    Hugo L. Black:

    Suppose the wife had gone to Nevada instead of the husband —

    Sol A. Rosenblatt:

    Yes, sir.

    Hugo L. Black:

    — and there have been constructive service —

    Sol A. Rosenblatt:

    Yes, sir.

    Hugo L. Black:

    — could she have gotten a decree for alimony?

    Sol A. Rosenblatt:

    I think she could under the Alabama statute, if she asks for it.

    Hugo L. Black:

    Do you think it would have been valid?

    Suppose they had (Voice Overlap) —

    Sol A. Rosenblatt:

    I don’t think so.

    Hugo L. Black:

    Suppose they had ordered there now that she (Voice Overlap) —

    Sol A. Rosenblatt:

    I — I don’t think so.

    Hugo L. Black:

    — be allowed to take his property.

    Sol A. Rosenblatt:

    Sir?

    Hugo L. Black:

    Suppose they had divided — decided that he be allowed so much for than a half his property, would that have been a valid decree?

    Sol A. Rosenblatt:

    I don’t —

    Hugo L. Black:

    Having —

    Sol A. Rosenblatt:

    — think so.

    Hugo L. Black:

    Why?

    Sol A. Rosenblatt:

    Well, because I’m going back to your old cases of Haddock against Haddock and Atherton against Atherton, Pennoyer against Neff.

    Sol A. Rosenblatt:

    I don’t think that was any good.

    I have never, so far as I’m concerned —

    Hugo L. Black:

    But your position — your position is that the husband can get a valid decree depriving the right of alimony on constructive service but she cannot get a valid decree granted for alimony on constructive service, it maybe a good position, that — is that your position?

    Sol A. Rosenblatt:

    That’s my position in this case in New York.

    Hugo L. Black:

    I’m —

    Sol A. Rosenblatt:

    I don’t know what the law is in Alabama.

    Hugo L. Black:

    I’m talking about the constitutional right.

    Sol A. Rosenblatt:

    The constitutional right is that the same force and effect is to be given to the Nevada decree in New York as the New York ex parte decree and all I know is that a New York ex parte decree forecloses all alimony to a wife judged guilty of —

    Hugo L. Black:

    I didn’t make —

    Sol A. Rosenblatt:

    — misconduct.

    Hugo L. Black:

    I didn’t make my position clear and I don’t clear this out.

    I just wanted to get your view.

    What is your view with reference to whether or not it would form a due process for a wife or a husband to have a wife denied alimony, now that she has a stay on constructive service, constitutionally speaking?

    Sol A. Rosenblatt:

    You’re not talking with reference to this case I hope?

    Hugo L. Black:

    Are there any case?

    Let’s forget this case for the moment (Inaudible)

    Sol A. Rosenblatt:

    Well, if you’ll forget this case because of its peculiar facts —

    Hugo L. Black:

    Yes.

    Sol A. Rosenblatt:

    — I would agree that Nevada has no right to cutoff the alimony to a wife who has not been guilty of any misconduct.

    Hugo L. Black:

    And —

    Sol A. Rosenblatt:

    But on the other hand, Your Honor —

    Hugo L. Black:

    (Voice Overlap) —

    Sol A. Rosenblatt:

    I am faced with a great dilemma in this consideration, sir.

    You said again and again that the Nevada decree destroys the marriage relationship and that the only thing you can attack in the Nevada decree is the jurisdiction of the Court.

    Well, some cases hold that the jurisdiction is good, in some cases holds no good.

    In this case they held the jurisdiction was good but the jurisdiction itself under the Nevada law is founded upon the misconduct of the wife.

    Felix Frankfurter:

    (Voice Overlap) Forget all about misconduct.

    The whole basis of Judge Fuld’s opinion on which you are relying is that alimony isn’t just a personal obligation like a man suing on a debt, on a note.

    The view of Judge Fuld is that it isn’t — that alimony is an incident to the status and thereby do not see how you can escape.

    In fairly answering Justice Black’s question that in as much as Nevada can cutoff alimony, Nevada can impose alimony in favor of New York to be respected in other State.

    Sol A. Rosenblatt:

    Are you — may it please you.

    Judge Black asked me my personal opinion.

    Felix Frankfurter:

    Well, I don’t know what (Voice Overlap) —

    Sol A. Rosenblatt:

    He asked my opinion of this case.

    I’m relying on whatever Judge Fuld said and relying upon Justice Peck and relying in addition thereto on the arguments and cases cited in my brief.

    Felix Frankfurter:

    But I’m talking about the analysis which Judge Fuld made.

    Sol A. Rosenblatt:

    But you see the trouble is —

    Felix Frankfurter:

    You can’t take what you want and reject what you don’t like.

    Sol A. Rosenblatt:

    Well, I don’t have to agree with Judge Fuld, Your Honor —

    Felix Frankfurter:

    (Voice Overlap) —

    Sol A. Rosenblatt:

    — if I don’t plea.

    Felix Frankfurter:

    — with anybody.

    Sol A. Rosenblatt:

    That’s right, sir.

    Thank God for that.

    In conclusion, I would like [Laughs] —

    (Inaudible)

    Sol A. Rosenblatt:

    Thank you, sir.

    In conclusion I’d like to say this one thing.

    I’ve handled myself a great many matrimonial matters and I’ve had the privilege serving on the New York Commission for uniform state laws.

    I feel that the field which is being embarked upon by the series of cases and which in each case cannot possibly consider any misconduct problems on the part of the wife is a field which ought to be left to a legislation and I feel very strongly that you will not on serious consideration of the record here, you will not hold and you could not hold that this defendant, no matter how villainous you might consider him, has had due process in this case where he’s summoned in the Court on one charge and then found guilty on another without notice to him.

    Thank you.