Simons v. Miami Beach First National Bank/Concurrence Harlan

Mr. Justice HARLAN, concurring.

I am happy to join the opinion of the Court because it makes a partial retreat from Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 a decision which I believe must eventually be rerationalized, if not entirely overruled.

The Vanderbilt case was this. The Vanderbilt couple was domiciled in California. Mr. Vanderbilt went to Nevada, established a new domicile, and obtained an ex parte divorce decree which did not provide for alimony payments to Mrs. Vanderbilt. In the meantime Mrs. Vanderbilt went to New York. After the Nevada decree had become final, she sued in New York for support under New York law, sequestering Mr. Vanderbilt's property located there. New York ordered support payments, rejecting full-faith-and-credit arguments based on the Nevada decree. Over dissents by Mr. Justice Frankfurter and myself (354 U.S., at 419, 428, 77 S.Ct. at 1367) the Court affirmed the New York award, holding that because the Nevada court had no personal jurisdiction over Mrs. Vanderbilt, 'the Nevada decree, to the extent it purported to affect the wife's right to support, was void * *  * .' 354 U.S., at 419, 77 S.Ct. 1363.

Two rules emerged from the case, neither of which, I suggest with deference, commends itself: (1) an ex parte divorce can have no effect on property rights; (2) a State in which a wife subsequently establishes domicile can award support to her regardless of her connection with that State at the time of the ex parte divorce and regardless of the law in her former State of domicile.

The first rule slips unobtrusively into oblivion in today's decision, for Florida is allowed to turn property rights on its ex parte decree. A concurrence disputes this, but I do not understand how the Court's language in this case can be read as anything less. If I may paraphrase only slightly, the Court says, 'Insofar as petitioner argues that since she was not subject to the jurisdiction of the Florida divorce court, its decree could not extinguish any dower right existing under Florida law, Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1362, the answer is that the Florida decree extinguished petitioner's dower rights.' Ante, p. 85. The Court goes on to state and accept the Florida law that an ex parte divorce extinguishes dower rights. I do not see how a withdrawal from the due process phase of Vanderbilt could be clearer.

Because New York was petitioner's State of domicile at all times relevant to this case and did not purport to invest her with any rights to property beyond those she received from her husband, the second rule is not involved here. My hope is that its time will come too. I continue to believe that the views expressed in my Vanderbilt dissent embody a more satisfactory and workable approach to the law of 'divisible divorce' (Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561) than can be distilled from existing Court opinions.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring.

I agree completely with the Court's judgment and opinion, and add these few words only in reply to the suggestion of my Brother HARLAN that the Court here is making 'a partial retreat from Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456.' I do not think that today's decision marks any 'retreat' at all from the opinion or holding in Vanderbilt, and I do not understand the Court so to regard it. Vanderbilt held that a wife's right to support could not be cut off by an ex parte divorce. In the case before us, Mrs. Simons' Florida dower was not terminated by the ex parte divorce. It simply never came into existence. No one disputes that the ex parte divorce was effective to end the marriage, so that after it Mrs. Simons was no longer Mr. Simons' wife. Florida law, as the Court's opinion shows, grants dower only to a woman who is the legal wife of the husband when he dies. Mrs. Simons therefore had no property rights cut off by the divorce. She simply had her marriage ended by it, and for that reason was not a 'widow' within the meaning of the Florida law. Unless this Court were to make the novel declaration that Florida cannot limit dower rights to widows, I see no possible way in which the Vanderbilt case, which dealt with rights which a State did give to divorced wives, could be thought to apply.

Mr. Justice STEWART and Mr. Justice GOLDBERG, dissenting.

We would dismiss the writ of certiorari in this case as improvidently granted, believing that, as the Court's opinion clearly demonstrates, no federal question is presented. There exists no question under the Full Faith and Credit Clause, because Sol Simons, even after his Florida divorce, 'complied with the full measure of the New York decree,' ante, at 84.

No other federal question is even remotely suggested in the present posture of this case. Petitioner asserted in her petition for a writ of certiorari that '(t)he Courts of Florida have denied to the widow, Lucy C. Simons, her constitutional property rights to which she was entitled * *  * by the mere subterfuge of an ex parte divorce case in the Courts of Florida, where the Florida Court did not have jurisdiction because of the lack of proper residence.' We were advised at oral argument by petitioner's counsel, however, that petitioner no longer challenged the judgment below insofar as it embodied a holding that the 1952 Florida divorce decree was valid and terminated the marital status of the parties.

The only possible questions which remain in this case, therefore, are questions of state law which are of no proper concern to this Court.