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Examples and Explanations Family Law, Second Edition, Oliphant & Ver Steegh

Publisher page limitations in the second edition restricted the amount of material and number of problems that we could share with student readers. However, the web provides us with the opportunity to provide more expansive explanations of the law to in the chapters and to add more problems for review and reflection. We believe that the additional explanatory material and problems will further enhance a student's ability to master family law and provide an added intellectual boost when preparing for final family law examinations. Note: This material is available only to a student who has purchased the first or second edition of the Family Law Examples and Explanations book or a member of the faculty. It may not be copied or reproduced in any form without the express written consent of authors. Students who have purchased the second edition may, of course, download and print out this supplemental material for their individual use. Examples and Explanations

2.40(a) (New) State Recognition of Ex Parte Divorce ­ Full Faith and Credit

The law surrounding whether a state must recognize an ex parte divorce decree issued in another state begins with a reading of Article IV, Section 1 of the Constitution of the United States which states: Full faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.' The Full Faith and Credit Clause of the Constitution requires that a state recognize the decrees of a sister state, provided that the sister state had jurisdiction. The Supreme Court has held that the judicial power to grant an ex parte divorce is founded when at least one of the spouses is legally domiciled in the divorce granting state. Williams v. State of North Carolina (Williams I), 317 U.S. 287 (1942). The decree granting state, however, cannot foreclose the subsequent readjudication of the question of domicile by another state. Williams v. State of North Carolina (Williams II), 325 U.S. 226 (1945). Before a collateral attack may be made upon such a decree, the jurisdiction of the rendering court first must be shown to be vulnerable, i. e., that the defendant in the divorce action was neither served with process in the foreign state nor appeared therein or participated in the action on its merits. Cook v. Cook, 342 U.S. 126 (1951). The burden of undermining the divorce decree "rests heavily upon the assailant." Williams v. State of North Carolina (II), supra, 325 U.S. at page 233. Specifically, that burden is

"to overthrow the apparent jurisdictional validity of the . . . divorce decree by disproving . . . intention to establish a domicile" in the granting state. Ibid. After the Williams cases, a question about the scope of an ex parte divorce proceeding remained. For example, could a valid ex parte divorce entered at the domicile of only one party to the marriage automatically terminate the wife's right to support? This question was settled by the theory of divisible divorce set forth in Estin v. Estin, 334 U.S. 541 (1948), where the court held that an ex parte Nevada divorce procured by the husband did not terminate the wife's prior adjudicated right to separate maintenance: `The result in Estin was make the divorce divisible to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony. The divisible divorce theory accommodates the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern. Finally, in Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957), the court perfected the divisible divorce theory by its holding that even when the wife's right to support had not been reduced to judgment before the ex parte divorce, that divorce could not affect her support rights. The court rested its holding on the due process clause: since the foreign state had no personal jurisdiction over the absent spouse, its decree. To the extent the Nevada ex parte divorce purported to affect the wife's right to support, it was void and the Full Faith and Credit Clause did not obligate New York to give it recognition. Because the due process clause forbids the divorce court to adjudicate the absent wife's right to support, it follows that she cannot be deprived by that court of whatever rights of support she had under the law of her domicile at the time of the divorce. An ex parte divorce may not impose child support obligations or set an amount of attorney fees to be paid by the non resident. To impose those personal obligations on the out-state defendant, the party obtaining the ex parte divorce must usually proceed to the state where the non resident is domiciled and bring a separate action that comports with the due process clause of the Constitution. Example: Assume that Pauline and Daniel marry and live together in Minnesota. When their relationship breaks down, Pauline travels to California with their two children, maintaining that it is for a visit. After establishing residence in California, Pauline files for divorce on the ground of cruelty. Daniel is given notice of the divorce and retains California counsel. Daniel's lawyer enters a general appearance in California to deny the allegations. The divorce is granted and Pauline returns to Minnesota where she marries her high school sweetheart. Daniel brings an action in Minnesota alleging that the California decree is invalid and claims that Pauline's subsequent marriage is void. How will a Minnesota court rule on Daniel's challenge? Explanation: The court will rule that the California decree is valid and comports with due process and Minnesota erred when it permitted the California decree to be collaterally attacked. The reason for this is that Daniel had his day in the California court where he contested personal jurisdiction. . Unlike in Williams I, the finding of personal jurisdiction was made in a proceeding in which Daniel appeared and participated. Full faith and credit requires recognition of a decree rendered by a court which has jurisdiction over both parties. Sherrer v. Sherrer, 334 U.S. 343 (1948).

Example: Assume that after ten years of marriage, Arnold and April's relationship breaks down. Because of her strong religious beliefs, April seeks and obtains a degree of separation in South Dakota where the two are domiciled. Arnold, a lawyer, has been having an affair with his secretary and they decide he should obtain an absolute divorce from April. Arnold writes to a lawyer-friend in Nevada asking about the requirements for obtaining a divorce in that state. He is told that in order to obtain an ex parte Nevada divorce that a petitioner's must be domiciled for a minimum of six-weeks in the state. Arnold travels to Nevada where he rents a hotel room for the required six weeks. During this period he continues to conduct business in South Dakota using the telephone, fax, and internet. He does not change his driver's license, home mail address, checking or savings accounts. He obtains the Nevada ex parte divorce and immediately returns to South Dakota where his marriage to his secretary is announced. April begins an action in South Dakota court claiming that the Nevada decree is not entitled to full faith and credit. Is Arnold's divorce decree entitled to full faith and credit? Explanation. This is a situation where a court may well rule in favor of April. April will most likely prevail because Arnold failed to establish a bona fide domicile in Nevada. Based on the Supreme Court decisions of Williams I and Williams II, South Dakota is entitled to determine for itself the jurisdictional facts upon which the Nevada decree was based. Unlike the above hypothetical, April never appeared in the Nevada proceeding so the issue of personal jurisdiction was never litigated. April will contend that Arnold was never domiciled in Nevada because he did not intend to abandon his South Dakota domicile. The evidence supporting her includes the following: Arnold rented a hotel room (temporary residence) , retained and continued working at his job in South Dakota through the use of email, fax, and telephone, and never changed the location of his bank accounts or changed his home mailing address. This is strong evidence that Arnold never established a domicile in Nevada.

Example. Assume that Mark and Mable are married for five years and live in the state of New York. When their relationship breaks down, Mable leaves Mark to live with her parents in Florida. Mark then files a petition for divorce in Iowa based on ground of desertion. However, Mark fails to have the divorce summons and petition served on Mable in Florida, even though he knows the mailing address of Mable's parents. He also fails to provide Mable with a notice of the date the divorce petition is to be heard by the court. Without Mable's knowledge, the New York court enters an ex parte divorce. A few weeks after the divorce decree is entered, Mark dies. Mable leans of the divorce when she attends Mark's funeral. She then seeks her intestate share of Mark's estate as his wife. Will she be successful? Explanation. This is a pretty easy problem. Mable will prevail because proper service of process is required for jurisdiction over a defendant. She was denied her due process rights because Mark knew her mailing address and should have provided her with notice of the proceeding. She is entitled to seek her intestate share of Mark's estate and his legal spouse.


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