The Constitution of the United States of America: Analysis and Interpretation Part 129

[35] Milliken _v._ Meyer, 311 U.S. 457, 463 (1940).

[36] Adam _v._ Saenger, 303 U.S. 59, 62 (1938).

[37] Hanc.o.c.k National Bank _v._ Farnum, 176 U.S. 640 (1900).

[38] Stacy _v._ Thrasher, use of Sellers, 6 How. 44, 58 (1848).

[39] Bigelow _v._ Old Dominion Copper Min. & S. Co., 225 U.S. 111 (1912).

[40] 18 How. 404 (1856).

[41] To the same effect is Connecticut Mut. Ins. Co. _v._ Spratley, 172 U.S. 602 (1899).

[42] Simon _v._ Southern Ky., 236 U.S. 115 (1915).

[43] Goldey _v._ Morning News, 156 U.S. 518 (1895); Riverside Mills _v._ Menefee, 237 U.S. 189 (1915).

[44] International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914); Riverside Mills _v._ Menefee, 237 U.S. 189 (1915).

[45] International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914).

[46] Kane _v._ New Jersey, 242 U.S. 160 (1916); Hess _v._ Pawloski, 274 U.S. 352 (1927). Limited in Wuchter _v._ Pizzutti, 276 U.S. 13 (1928).

[47] 18 Wall. 457 (1874).

[48] _See_ 1 Black, Judgments -- 246 (1891).

[49] _See also_ Simmons _v._ Saul, 138 U.S. 439, 448 (1891). In other words, the challenge to jurisdiction is treated as equivalent to the plea _nul tiel record_, a plea which was recognized even in Mills _v._ Duryee as always available against an attempted invocation of the full faith and credit clause. What is not pointed out by the Court, is that it was also a.s.sumed in the earlier case that such a plea could always be reb.u.t.ted by producing a transcript, properly authenticated in accordance with the act of Congress, of the judgment in the original case. _See also_ Brown _v._ Fletcher, 210 U.S. 82 (1908); German Savings Society _v._ Dormitzer, 192 U.S. 125, 128 (1904); Grover & Sewing-Mach. Co. _v._ Radcliffe, 137 U.S. 287, 294 (1890).

[50] Cheever _v._ Wilson, 9 Wall. 108 (1870).

[51] Andrews _v._ Andrews, 188 U.S. 14 (1903). _See also_ German Savings Society _v._ Dormitzer, 192 U.S. 125 (1904).

[52] 201 U.S. 562 (1906). _See also_ Thompson _v._ Thompson, 226 U.S.

551 (1913).

[53] 181 U.S. 155, 162 (1901).

[54] 317 U.S. 287 (1942); 325 U.S. 226 (1945).

[55] 305 U.S. 32 (1938).

[56] 317 U.S. 287, 298-299 (1942).

[57] Ibid. at p. 302.

[58] 317 U.S. 287, 312, 315, 321 (1942).

[59] 325 U.S. 226, 229 (1945).

[60] Bell _v._ Bell, 181 U.S. 175 (1901); Andrews _v._ Andrews, 188 U.S.

14 (1903).

[61] Strong dissents were filed which have influenced subsequent holdings. Among these was that of Justice Rutledge which attacked both the consequences of the decision as well as the concept of jurisdictional domicile on which it was founded.

"Unless 'matrimonial domicil,' banished in _Williams_ I [by the overruling of Haddock _v._ Haddock], has returned renamed ['domicil of origin'] in _Williams_ II, every decree becomes vulnerable in every State. Every divorce, wherever granted, * * *, may now be reexamined by every other State, upon the same or different evidence, to redetermine the 'jurisdictional fact,' always the ultimate conclusion of 'domicil.'

"The Const.i.tution does not mention domicil. Nowhere does it posit the powers of the states or the nation upon that amorphous, highly variable common-law conception. * * * No legal conception, save possibly 'jurisdiction,' * * *, affords such possibilities for uncertain application. * * * Apart from the necessity for travel, [to effect a change of domicile, the latter], criterion comes down to a purely subjective mental state, related to remaining for a length of time never yet defined with clarity. * * * When what must be proved is a variable, the proof and the conclusion which follows upon it inevitably take on that character. * * * [The majority have not held] that denial of credit will be allowed, only if the evidence [as to the place of domicile] is different or depending in any way upon the character or the weight of the difference. The test is not different evidence. It is evidence, whether the same or different and, if different, without regard to the quality of the difference, from which an opposing set of inferences can be drawn by the trier of fact 'not unreasonably.' * * * But * * * [the Court] does not define 'not unreasonably.' It vaguely suggests a supervisory function, to be exercised when the denial [of credit]

strikes its sensibilities as wrong, by some not stated standard. * * *

There will be no 'weighing' [of evidence], * * * only examination for sufficiency."--(325 U.S. 226, 248, 251, 255, 258-259 (1945)).

No less disposed to prophesy undesirable results from this decision was Justice Black in whose dissenting opinion Justice Douglas concurred.

"The full faith and credit clause, as now interpreted, has become a disrupting influence. The Court in effect states that the clause does not apply to divorce actions, and that States alone have the right to determine what effect shall be given to the decrees of other States. If the Court is abandoning the principle that a marriage [valid where made is valid everywhere], a consequence is to subject people to bigamy or adultery prosecutions because they exercise their const.i.tutional right to pa.s.s from a State in which they were validly married on to another which refuses to recognize their marriage. Such a consequence violates basic guarantees."

North Carolina's interest was to preserve a bare marital status as to two persons who sought a divorce and two others who had not objected to it. "It is an extraordinary thing for a State to procure a retroactive invalidation of a divorce decree, and then punish one of its citizens for conduct authorized by that decree, when it had never been challenged by either of the people most immediately interested in it." The State here did not sue to protect any North Carolina property rights nor to obtain support for deserted families. "I would not permit such an attenuated state interest to override the Full Faith and Credit Clause *

* *" (325 U.S. 226, 262-267 (1945)).

The unsettling effect of this decision was expressed statistically by Justice Black as follows: "Statistics indicate that approximately five million divorced persons are scattered throughout the forty-eight States. More than 85% of these divorces were granted in uncontested proceedings. Not one of this latter group can now retain any feeling of security in his divorce decree. Ever present will be the danger of criminal prosecution and hara.s.sment." Ibid. 262-263.

As to the conclusion that the Supreme Court as well as the State courts should reach in like situations, Justice Black a.s.serted that "until Congress has commanded a different 'effect' for divorces granted on a short sojourn within a State, we should stay our hands. * * * If we follow that course, North Carolina cannot be permitted to disregard the Nevada decrees without pa.s.sing upon the 'faith and credit' which Nevada itself would give to them under its own 'law or usage.' * * * For in Nevada, even its Attorney General could not have obtained a cancellation of the decree * * *." Ibid. 267, 268.

The reader should take note of the effect in some of the above opinions to weigh competing interests against one another and the implication that the court's relation to the full faith and credit clause is that of an arbitral tribunal rather than of a court in the conventional sense of a body whose duty is to maintain an established rule of law.

[62] 325 U.S. 279 (1945).

[63] Ibid. 281-283.

[64] 334 U.S. 541 (1948). _See also_ the companion case of Kreiger _v._ Kreiger, 334 U.S. 555 (1948).

[65] Esenwein _v._ Commonwealth, 325 U.S. 279, 280 (1945).

[66] Because the record, in his opinion, did not make it clear whether New York "law" held that no "_ex parte_" divorce decree could terminate a prior New York separate maintenance decree, or merely that no "_ex parte_" decree of divorce of _another State_ could, Justice Frankfurter dissented and recommended that the case be remanded for clarification.

Justice Jackson dissented on the ground that under New York law, a New York divorce would terminate the wife's right to alimony; and if the Nevada decree is good, it is ent.i.tled to no less effect in New York than a local decree. However, for reasons stated in his dissent in the First Williams Case, 317 U.S. 287, he would prefer not to give standing to constructive service divorces obtained on short residence. 334 U.S. 541, 549-554 (1948). These two Justices filed similar dissents in the companion case of Kreiger _v._ Kreiger, 334 U.S. 555, 557 (1948).

[67] 334 U.S. 343 (1948).

[68] 334 U.S. 378 (1948).--In a dissenting opinion filed in the case of Sherrer _v._ Sherrer, but applicable also to the case of Coe _v._ Coe, Justice Frankfurter, with Justice Murphy concurring, a.s.serted his inability to accept the proposition advanced by the majority that "regardless of how overwhelming the evidence may have been that the a.s.serted domicile in the State offering bargain-counter divorces was a sham, the home State of the parties is not permitted to question the matter if the form of a controversy had been gone through."--334 U.S.

343, 377 (1948).

[69] 336 U.S. 674 (1949).--Of four Justices dissenting (Black, Douglas, Rutledge, Jackson), Justice Jackson alone filed a written opinion. To him the decision is "an example of the manner in which, in the law of domestic relations, 'confusion now hath made his masterpiece,'" but for the first Williams case and its progeny, the judgment of the Connecticut court might properly have held that the Rice divorce decree was void for every purpose because it was rendered by a State court which never obtained jurisdiction of the nonresident defendant. "But if we adhere to the holdings that the Nevada court had power over her for the purpose of blasting her marriage and opening the way to a successor, I do not see the justice of inventing a compensating confusion in the device of divisible divorce by which the parties are half-bound and half-free and which permits Rice to have a wife who cannot become his widow and to leave a widow who was no longer his wife." Ibid. 676, 679, 680.

[70] Vermont violated the clause in sustaining a collateral attack on a Florida divorce decree, the presumption of Florida's jurisdiction over the cause and the parties not having been overcome by extrinsic evidence or the record of the case. Cook _v._ Cook, 342 U.S. 126 (1951). The Sherrer and Coe cases were relied upon. There seems, therefore, to be no doubt of their continued vitality.

[71] Barber _v._ Barber, 323 U.S. 77, 84 (1944).

[72] Sistare _v._ Sistare, 218 U.S. 1, 11 (1910). _See also_ Barber _v._ Barber, 21 How. 582 (1859); Lynde _v._ Lynde, 181 U.S. 183, 186-187 (1901); Bates _v._ Bodie, 245 U.S. 520 (1918); Audubon _v._ Shufeldt, 181 U.S. 575, 577 (1901); Yarbrough _v._ Yarbrough, 290 U.S. 202 (1933); Loughran _v._ Loughran, 292 U.S. 216 (1934).