Vanderbilt v. Vanderbilt/Dissent Harlan

Mr. Justice HARLAN, dissenting.

The Court holds today, as I understand its opinion, that Nevada, lacking personal jurisdiction over Mrs. Vanderbilt, had no power to adjudicate the question of support, and that any divorce decree purporting so to do is to that extent wholly void presumably in Nevada as well as in New York-under the Due Process Clause of the Fourteenth Amendment, pursuant to the doctrine of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.

I cannot agree with such a holding. In the first place, as I see this case, there is no necessity to pass on this question at all. Our problem should be, initially at least, not whether this decree, insofar as it affects property, is 'void' for lack of due process, but whether it binds New York under the Full Faith and Credit Clause. In other words, we need not, in the first instance, decide what the Due Process Clause forbids Nevada to do, but merely what the Full Faith and Credit Clause compels New York to do. One of the wisest of our constitutional commentators has warned us to beware the 'constricting necessitarianism' of deeming the two questions to be one and the same:

'In a problem so fraught with infelicities whatever mediation     is devised, there is wisdom in confining pronouncements      closely to what is imperative in the particular case. It is     not logically necessary to deny Nevada's mastery within her      own boundaries in order to deny her power of projection      beyond them. Freedom of home manufacture and consumption does     not necessarily entail freedom of export. Only if it is     inexorable that what is meant by 'jurisdiction' must be      either wholly absent or wholly unlimited need frailty in      sister states be conditioned on total impotence at home.' T.      R. Powell, And Repent at Leisure, 58 Harv.L.Rev. 930, 936.

Were we compelled to reach the question, I would by no means be ready to hold that Nevada, in connection with a valid divorce proceeding, had no power to adjudicate an incident so inextricably knit to the marriage status as is support. I would agree with Judge Fuld, dissenting below, that the denial of power to Nevada rests on the 'erroneous premise that a mere incident of the marital status, which 'in itself furnishes no foundation for a cause of action' * *  * is the equivalent of an independent right.' Nor does it help to label Mrs. Vanderbilt's claim to support a 'property' right and therefore an in personam, rather than an in rem, matter. If it is due process for Nevada to adjudicate the marriage status of a domiciliary without personal service over the absent spouse (as it clearly is, see Williams v. State of North Carolina, I, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279), I see no reason why Nevada cannot, at least for the purposes of her own law, also adjudicate the incidents of that status.

I do not think, however, that this forecloses the issue before us. I revert, therefore, to what, for me, is the real question in this case: must New York respect Nevada's decree insofar as it purports to adjudicate the question of support? The answer to this question, I think, turns squarely on an issue of New York law, namely, whether Mrs. Vanderbilt was domiciled in New York at the time of the divorce.

If Mrs. Vanderbilt was a New York domiciliary at the time of the divorce, the situation would seem to me to be as follows: New York's law and policy is that the right of a married woman domiciled in New York to support survives an ex parte divorce, whether obtained in New York or elsewhere. The only question under the Full Faith and Credit Clause is whether New York is compelled to disregard her own law and policy in favor of the law of Nevada on the question of the survival of support rights subsequent to an ex parte divorce. My answer to this question is 'no.' The interest of New York in her domiciliaries seems to me to be of sufficient weight to justify allowing her to apply her own policy on the question of what effect ex parte divorces will be given as against the surviving support rights of her own domiciliaries. In my view it does not follow automatically that merely because New York must recognize the validity of Nevada's ex parte divorce, she must also recognize the effect Nevada would give to that divorce in connection with the wife's rights to support. The two questions are governed by different considerations. I quote again from Professor Powell:

'The 'irreconcilable conflict' between two states on the     question of marital status is not so insuperable in dealing      with matters of money. It is less irksome to support two     wives than to go to jail because of them. Though with respect     to status one state or the other must yield, with respect to      maintenance such yielding is not necessary.

' * *  * The problem under the full faith and credit clause is      to accommodate as fully as possible the conflicting interests      of the two States.' The solution is a matter of judgment in      each case, judgment based not only on the particularities of      the individual case or type of case but upon the desirability      of as much generality and predictability as is consistent      with a fair degree of control by a state over the conduct and      the relationships of persons who in every substantial sense      are its own home folks. * *  *

'(It is argued) that the state where the stay-behind spouse     has long been domiciled has an interest in making a quondam      husband continue a prior obligation to support her, and that      this interest is stronger and more meritorious than any      possible opposing interest to prevent it that can be      accredited to the state which gave him a divorce after being      blindly satisfied that he intended an indefinite stay there. This seems so sensible that is should be obvious to any one     who had never become confused by studying law.' Powell,      supra, at 952, 954-955.

In effect, the situation before us seems to me to be analogous to dower. If New York law should provide that the dower rights of her domiciliaries survive ex parte divorces, I would suppose that New York could give effect to that policy in spite of an ex parte Nevada divorce which purported to cut off the right to dower. The problem in each case is to weigh the policy of giving an ex parte judgment uniform effect throughout the nation, against the interest of a particular State in a particular local policy. Where status is concerned, this Court held that the interest in certainty as to whether one is married or single outweighs the interest of home States in the marital status of their domiciliaries, so that North Carolina was forced to swallow Nevada's views as to what is sufficient cause for divorce even though the North Carolina wife had not appeared in the Nevada proceeding. Williams, I, supra. But I see no reason why we should extend that, for me, already somewhat unpalatable mediation to the limits of its logic in order to hold that Nevada's views as to support as well as divorce must be forced onto other States, and that Nevada can not only compel wives domiciled elsewhere to become single against their will, but to be pauperized against their will as well. Of course, the reason for the distinction is not that the wife's right to support is 'worth' more than her interest in remaining a wife. But the interest of the wife in not becoming single and penniless is greater than her interest in not becoming single. In other words, merely because it is held that the wife must be deprived of one benefit ex parte, in the interest of national uniformity, does not compel us to hold that the other benefit must vanish with it, where the interest in national uniformity is not as compelling.

In deciding this case we must always remember that the reason why the Nevada ex parte divorce has the effect of a judgment in New York even on the question of status is because this Court found, in measuring the competing interests, that uniformity should prevail. It will not do, therefore, to say that once that is done the Court is foreclosed from weighing competing interests in determining the effect of the Nevada adjudication as to questions other than status. One cannot rest on the inexorability that the Nevada decree is a 'judgment' and eliminate the fact that it was held to be a judgment outside Nevada as to status for reasons which do not necessarily apply to the question of support, any more than one can solve the problem by labeling support as a 'property' right.

Quite a different case is presented, it seems to me, where a wife becomes a domiciliary of New York after the ex parte divorce and is then granted support. In such a case New York could not pretend to be assuring the wife the mere survival of a pre-existing right, because the wife could have had no predivorce rights in New York at all. New York would merely be granting the wife a marital right in the teeth of a valid Nevada adjudication that there is no marriage. And, of course, at the time of the divorce New York would have had no interest in the situation of any kind. In such a case, therefore, it seems to me that the Full Faith and Credit Clause would require New York to respect the Nevada judgment as to support rights. Furthermore, even aside from the judgment, as a matter of choice of law I should think New York would be forced to look to the law of a State which had a substantial contact with these parties at the time of the divorce in determining the effect to be given to the divorce decree. It seems to me unfortunate that this Court should permit spouses divorced by valid decrees to comb the country, after the divorce, in search of any State where the divorcing spouse has property and which has favorable support laws, in order there to obtain alimony. I would therefore by no means hold the Nevada adjudication 'void' and therefore of no effect in any State.

Thus decision here, as I see it, turns on the domicile of Mrs. Vanderbilt at the time of the divorce. On this question I am left in some doubt. Section 1165-a of the New York Civil Practice Act makes one year's residence necessary to suits for support. This is amenable to the interpretation that New York would not recognize Mrs. Vanderbilt as domiciled in that State until the lapse of a year, that is, after the decree of divorce here involved. See de Meli v. de Meli, 120 N.Y. 485, 24 N.E. 996. On the other hand, the opinion below intimates that the oneyear residency can be regarded as merely a procedural prerequisite to filing suit under § 1170-b, and does not affect Mrs. Vanderbilt's status as a domiciliary of New York ab initio. In view of this uncertainty in the state law, I would remand to the state court for reconsideration in light of the above-stated principles.