Fehlhaber v. Fehlhaber

• Decision Date: 11 March 1982
• Docket Number: No. 79-2819,79-2819
• Citation: Fehlhaber v. Fehlhaber, 669 F.2d 990 (5th Cir. 1982)
• Parties: Verone Marin FEHLHABER, Plaintiff-Appellee-Cross Appellant, v. Robert F. FEHLHABER as personal representative of Fred Robert Fehlhaber, deceased, Defendant-Appellant-Cross Appellee. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 990

669 F.2d 990

Verone Marin FEHLHABER, Plaintiff-Appellee-Cross Appellant, v. Robert F. FEHLHABER as personal representative of Fred Robert Fehlhaber, deceased Defendant-Appellant-Cross Appellee.

No. 79-2819.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

March 11, 1982.

Paul, Weiss, Rifkind, Wharton & Garrison, Mark Charles Morril, Paul Johnson Newlon, Lewis Richard Clayton, New York City, Linwood C. Cabot, Fort Lauderdale, Fla., for defendant-appellant-cross appellee.

Woodrow M. Melvin, Jr., Miami, Fla., R. Stephen Duke, Max C. Fink, Beverly Hills, Cal., for plaintiff-appellee-cross appellant.

Appeals from the United States District Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, HATCHETT, Circuit Judge, and MARKEY ^**, Chief Judge.

GODBOLD, Chief Judge:

Appellee Verone Fehlhaber brought this diversity of citizenship action in the United States District Court for the Southern District of Florida seeking recognition and enforcement of three judgments entered against her husband in a California action for legal separation. Appellant Fred Fehlhaber challenges the jurisdiction of the California court to render the judgments.

I.

Verone and Fred Fehlhaber were married in 1961 in New York. In 1967, six years later, they moved to Florida. Beginning in 1969 the Fehlhabers spent several months a year in California (annual vacation of four months each summer according to Fred Fehlhaber; seven or eight months residency a year with annual vacations to Florida according to Verone Fehlhaber). Although the chain of events surrounding the initial period of estrangement is hotly disputed, it is enough for this litigation that Verone went to California April 14, 1974, leaving Fred in Florida. The Fehlhabers agree that they separated May 15, 1974. Two days later, May 17, 1974, Verone filed an action in a California court for legal separation, spousal support, attorneys' fees, and a determination of her property rights. Fred was personally served in Florida June 5, 1974. Six days later, June 11, 1974, Fred filed a petition in Florida for dissolution of the marriage. Verone was personally served in California.

On June 15 Fred made a special appearance under California Rules of Court 1234 ¹ contesting the court's jurisdiction over his person. The California court on July 15 found that Fred was a resident, even if he was not a domiciliary, of California and that his residency was a sufficient contact to allow California's long arm statute ² to confer personal jurisdiction over him. Fred took no further action in defense of the cause and was declared in default July 22, 1974.

In the Florida case Verone never made an appearance, and the Florida court dissolved the Fehlhabers' marriage July 23, 1974. Meanwhile the California separation proceedings continued. On July 25, 1974, two days after the Florida divorce, the California court entered an order nunc pro tunc as of July 15 awarding Verone spousal support, attorneys' fees and costs pendente lite beginning August 1, 1974. The California court in a "Final Judgment of Legal Separation" on October 4 granted Verone $8,500 a month in support retroactive to August 1, $35,000 in attorneys' fees and $10,000 in court costs, while expressly reserving all issues regarding the division of property. On July 30, 1975 the California court entered a "Further Judgment" for the arrears on spousal support ($102,000), interest ($3,395), attorneys' fees and court costs ($2,615). On March 12, 1976 the California court entered the third judgment, "Further Judgment on Reserved Property Issues," awarding Fred all community and quasi-community property and awarding Verone $9,997,355.57 ³ in cash to equalize the division.

With jurisdiction grounded upon diversity of citizenship, 28 U.S.C. § 1332, Verone brought an action in federal district court in Florida to enforce the three California judgments. Fred, to persuade the district court not to enforce the presumptively valid judgments, based his defense upon numerous challenges to the jurisdiction of the California court and to the validity of that court's judgments. The district court rejected all of Fred's challenges and, considering itself bound by the full faith and credit clause of the U. S. Constitution, granted summary judgment for Verone and entered judgment in her favor for $417,500 unpaid support from August 1, 1974; $45,000 unpaid suit costs and attorneys' fees; and $12,114,991.41, consisting of the unpaid cash award of $9,997,355.57 plus interest thereon of $2,081,390.09, and the unpaid attorneys' fees and costs of $30,000 plus interest thereon of $6,245.75.

On appeal Fred presents numerous defects in the California proceeding as grounds for not enforcing the California judgments. We reject the defects asserted with respect to the judgments of support payments and attorneys' fees and costs, and interest thereon, and therefore affirm the district court's awards based on these matters. We reverse the award of $9,997,355.57 plus interest granted pursuant to the third California judgment because we hold that the California court lacked power to enter this judgment.

II.

The full faith and credit clause of the United States Constitution ⁴ and 28 U.S.C. § 1738 ⁵ generally require enforcement of a sister state court's judgments. We discuss first the principles under which one state court ⁶ may nevertheless deny effect to a prior foreign court's judgments based on the lack of jurisdiction in the original court. Justice Frankfurter's opinion for the Court in Williams v. North Carolina, 325 U.S. 226, 229, 65 S.Ct. 1092, 1094, 89 L.Ed. 1577 (1945), outlines a two-stage analysis. First, the full faith and credit clause does not take effect if the original court lacked personal or subject matter jurisdiction. Id. at 229, 65 S.Ct. at 1094. But a collateral examination of possible jurisdictional defects cannot be made, according to federal principles of res judicata, if these issues were litigated or could have been litigated in the original proceeding. See Davis v. Davis, 305 U.S. 32, 43, 59 S.Ct. 3, 7, 83 L.Ed. 26 (1938). At the second stage of analysis, assuming the full faith and credit clause does come into play, a state court is required to give a prior sister state court's judgment only "the same credit, validity, and effect ... which it had in the state where it was pronounced." Williams, supra 325 U.S. at 228, 65 S.Ct. at 1094. Therefore, if the original state would allow collateral attack of its judgment for lack of jurisdiction, a collateral attack may be made in a proceeding in another state.

Fred contends that the California court lacked subject matter jurisdiction to enter the three judgments sought to be enforced in the district court below. The district court ruled that because this issue could have been presented to the California court, Fred is barred by principles of res judicata from collaterally attacking the California judgments on this ground. We discuss this ruling in the context of each of the two stages of full faith and credit analysis.

At the first stage, where federal principles of res judicata apply, if Fred were not served with process and did not appear in the California court, then he would not have had an opportunity to contest that court's subject matter jurisdiction and could therefore raise the issue here in a collateral attack. Williams v. North Carolina, supra. But if Fred had been a party and had generally appeared in the California proceeding, his failure to raise any jurisdictional issues would preclude his raising such issues in a collateral attack. Davis v. Davis, supra. This case falls between these two extremes. Fred was a party to the California proceedings. He was served with process, he contested this service, but the matter was decided against him. ⁷ Fred did not make a general appearance but only a special appearance to contest personal jurisdiction, as California procedure allows. Cal.Civ.Proc.Code § 418.10; Cal. Family Law Rule 1234. Moreover, after this special appearance Fred no longer participated in the proceedings and was subsequently declared in default.

Fred contends that despite his being a party a general appearance, as opposed to a special appearance, is required before he is to be considered to have had an opportunity to raise subject matter jurisdiction defects sufficient to preclude collateral attack. He further contends that once a default order was entered he was precluded from participating in the California proceedings.

We need not decide the merit of these contentions, for we find that the second stage of full faith and credit analysis allows collateral attack of the California judgments. The full faith and credit clause requires only so much respect of a foreign judgment as the forum state would give the judgment. In California, under certain circumstances judgments are subject to collateral attack for lack of subject matter jurisdiction despite the fact that the party now attacking the judgment was a party below or fully participated in the proceedings. One circumstance occurs where the jurisdictional defect appears affirmatively in the record:

To be attackable collaterally for lack of jurisdiction the order must be void on its face and it is not void on its face unless the record affirmatively shows that the court was without jurisdiction to make the order. Hogan v. Superior Court, 74 Cal.App. 704, 241 P. 584. If the record discloses that the court had no jurisdiction to make the order of appointment, then it is void and can be attacked at any time ... or anywhere, directly or collaterally whenever it presents itself, either by parties or strangers.

Texas Co. v. Bank of America Nat. Trust & Sav. Ass'n, 5 Cal.2d 35, 53 P.2d 127, 130-31 (1935). ⁸ This rule does not allow a reopening of factual questions upon which jurisdiction turns that were determined by the original court, nor does it allow the taking of extrinsic evidence...