Hopson v. Hopson

• Decision Date: 20 January 1955
• Docket Number: No. 11558.,11558.
• Parties: Tasanilla HOPSON, Appellant, v. Delores Palmer HOPSON, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

95 US App. DC 285, 221 F.2d 839 (1955)

Tasanilla HOPSON, Appellant, v. Delores Palmer HOPSON, Appellee.

No. 11558.

United States Court of Appeals, District of Columbia Circuit.

Argued February 24, 1954.

Decided January 20, 1955.

COPYRIGHT MATERIAL OMITTED

Mr. Joseph D. DiLeo, Washington, D. C., for appellant.

Mr. John Geyer Tausig, Washington, D. C., for appellee.

Before STEPHENS, Chief Judge, and EDGERTON, CLARK,^* WILBUR K. MILLER, PRETTYMAN, BAZELON, FAHY, WASHINGTON and DANAHER, Circuit Judges.

BAZELON, Circuit Judge, with whom EDGERTON, PRETTYMAN, FAHY, WASHINGTON and DANAHER, Circuit Judges, concur.

In Banc.

Tasanilla Hopson deserted his wife, Delores, shortly after their marriage in 1948.¹ Their child was born the following year. Because she refused to divorce him, he instituted divorce proceedings against her in Florida in 1950, shortly after his discharge from the military service and while she was living in a Maryland suburb of Washington, D. C. Delores was neither personally served with process, nor did she appear or otherwise participate in the proceedings. She was aware of their pendency, however, and stated in a letter to Tasanilla's attorneys that "* * * I interpose no objection to a divorce — but since this is based on lies and gives my daughter no protection don't expect me to sign anything." On June 13, 1950, upon service by publication, he obtained a final decree of divorce which provided for payments of $10.00 a week for the support of the child but nothing for his wife. Twelve days later, he entered into another marriage in Kentucky, from which a child has since been born.

Delores brought the present suit for support and maintenance for herself and child on July 14, 1950. At a preliminary stage in the proceeding, Tasanilla sought dismissal of a motion for maintenance pendente lite on the ground that the parties lacked sufficient residence in or connection with the District of Columbia. The pertinent circumstances are set out in the margin below.² The court ruled against him; at a later stage of the proceeding another branch of the court held this ruling tantamount to denial of a motion to dismiss on the ground of forum non conveniens and of binding effect as the law of the case.

Upon trial, the court viewed existence of the husband and wife status as essential to the right to claim maintenance under District of Columbia law.³ According to this view, of course, Delores' claim for maintenance would be barred if the Constitution's full faith and credit clause required recognition of the divorce obtained in the ex parte Florida proceedings.⁴ The court found, however, that Tasanilla had no bona fide intent to establish a permanent Florida domicile, and that the Florida court was therefore without jurisdiction to enter the decree of divorce. Accordingly, it held the decree not entitled to full faith and credit and granted support and maintenance relief to Delores and the child.

Tasanilla brought this appeal urging, in substance, that the District Court erred in (1) failing to apply the doctrine of forum non conveniens to refuse jurisdiction, and (2) refusing to accord full faith and credit to the Florida decree.

(1) Application of the doctrine of forum non conveniens is entrusted to the discretion of the Distrct Court to be exercised upon equitable considerations, and its determination may not be disturbed on appeal except for a clear abuse of this discretion.⁵ Although in the circumstances of this case, we think the District Court would have been warranted in refusing jurisdiction under the doctrine of forum non conveniens, we cannot say that its failure to do so is an abuse of discretion. Moreover, there are certain traditional equitable considerations which, in our view, impel a balance in favor of not disturbing its action. This suit was commenced in 1950. There is no showing that appellant suffered any prejudice in the trial by reason of the appellee's choice of forum.⁶ So far as the record is concerned, at least, appellant has no permanent residence and it is reasonable to assume from his past itinerant history that, as a practical matter, it would be extremely difficult for the appellee to obtain service upon him in some other forum.⁷ To refuse to exercise jurisdiction at this late date and "put her upon a merry-go-round of litigation in other jurisdictions, with no certainty that any of them could or would exercise jurisdiction in her behalf" would, we think, be unduly harsh and unjust.⁸

(2) We granted a rehearing in banc in this case for the purpose of considering questions flowing from the Supreme Court's decisions in Estin v. Estin,⁹ and May v. Anderson,¹⁰ concerning the recognition to be accorded ex parte foreign divorce decrees under the Constitution's full faith and credit clause. This consideration necessarily required review of the recent decision upon the subject by a division of this court in Meredith v. Meredith.¹¹

In Estin, the husband obtained an ex parte foreign divorce in Nevada after a New York court, wherein he appeared generally, had awarded his wife a decree for permanent alimony (the equivalent of permanent maintenance under the D.C.Code). Upon obtaining the Nevada decree, he stopped paying under the New York award. She thereupon sued for a supplemental judgment in New York for past due payments. The Supreme Court held that the New York award was a "property interest * * an intangible, jurisdiction over which cannot be exerted through control over a physical thing. Jurisdiction over an intangible can indeed only arise from control or power over the persons whose relationships are the source of the rights and obligations. * * * The result in this situation is to 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."¹² The Court also expressed the view that to hold that the Nevada decree wiped out the New York award would amount to a holding that Nevada could "restrain respondent from asserting her claim under that judgment. That is an attempt to exercise an in personam jurisdiction over a person not before the court. That may not be done."¹³ Thus, since Nevada never acquired jurisdiction to enter a decree affecting this personal right, the Court approved New York's enforcement of its prior judgment notwithstanding the Nevada divorce decree.

Later, in May v. Anderson which involved a habeas corpus proceeding in Ohio to determine immediate right to the custody of children, the Supreme Court extended this doctrine of divisibility of divorce by holding that Ohio was not bound to accord full faith and credit to an ex parte Wisconsin decree awarding custody to the ex-husband. "We recognize," said the Court, "that a mother's right to custody of her children is a personal right entitled to at least as much protection as her right to alimony."¹⁴ Mr. Justice Frankfurter pointed out, in a concurring opinion, that he understood the Court's decision to be only that Ohio was not required by the full faith and credit clause to accept the Wisconsin custody decision but that it could, if it saw fit, treat the Wisconsin decree as binding without violating that clause.

We applied this doctrine of the divisibility of divorce in Meredith v. Meredith.¹⁵ There, the husband sued for limited divorce in the District of Columbia in August 1948. Alimony pendente lite was awarded with the husband's consent. An amended complaint for absolute divorce was filed by the husband in April 1950. This was later dismissed on his motion under Fed.Rules Civ.Proc. rule 41(a) (2), 28 U.S.C.A., the husband having moved to Texas. Simultaneously, however, the court permitted the wife to file a counterclaim for separate maintenance, which she did on September 1, 1950. On August 27, 1951, the husband obtained a final divorce decree in Texas without provision for alimony or maintenance. Although the husband requested her to appear in the Texas proceedings, she was not personally served with process nor did she voluntarily appear or participate therein. Upon trial of the wife's counterclaim in October 1951, the District Court held the ex parte Texas divorce entitled to full faith and credit and, accordingly, dismissed the counterclaim as moot. On the appeal we held, inter alia, that the full faith and credit clause did not require recognition of the Texas divorce to the extent of cutting off any right which the nonappearing wife may have had to maintenance under the District law; but that the question of recognition or nonrecognition "even as to the issue of maintenance" is left "squarely up to each individual forum to be solved there in conformity with its public policy and in the light of the many conflicting interests and considerations so patently involved."¹⁶ We adhere to this holding.

In the present case also, we think the full faith and credit clause does not operate as a bar to maintenance. We recognized in Meredith that the divisibility doctrine rested on the foreign court's lack of in personam jurisdiction over the non-appearing spouse and not upon the reduction of her maintenance right to judgment prior to the divorce. We said, "While the Estin decision involved merely the enforcement of a maintenance order entered prior to the foreign divorce, its reasoning would seem to be equally applicable to an original grant of maintenance after the divorce. Either may be done consistently with the full faith and credit clause." We find no basis in that reasoning for drawing a distinction, so far as full faith and credit are concerned, between an original grant of maintenance after the divorce in a suit filed prior to the divorce, as in Meredith, and such a grant in a suit filed after the divorce, as in the present case. Moreover, it seems to us that it would unduly exalt form over substance to draw any rigid distinction since the claim sued upon in Meredith and the one reduced to judgment in...