Summers v. Summers

• Decision Date: 12 March 1952
• Docket Number: No. 3687,3687
• Citation: Summers v. Summers, 69 Nev. 83, 241 P.2d 1097 (Nev. 1952)
• Parties: SUMMERS v. SUMMERS.
• Court: Nevada Supreme Court

Page 1097

241 P.2d 1097

69 Nev. 83

SUMMERS v. SUMMERS.

No. 3687.

Supreme Court of Nevada.

March 12, 1952.

Rehearing Denied March 31, 1952.

Griswold & Vargas, Reno, for appellant.

Axel P. Johnson, Reno, for respondent.

BADT, Chief Justice.

We are here confronted with the question whether in a suit in Nevada, by a wife, upon a New York judgment for separate maintenance, the provisions thereof may extend through and beyond a subsequent divorce decree obtained by the husband in Nevada on substituted service.

The Supreme Court of New York, on April 24, 1947, on personal service, granted the wife a decree of separate maintenance against the husband and thereafter denied the husband's motion to modify it. The husband subsequently sued for divorce in Nevada and obtained a default judgment October 30, 1950 on substituted service. The trial court was not apprised of the New York judgment. The wife's suit in Nevada to establish the New York judgment was filed October 9, 1950 and personal service obtained. It was lodged in a different department of the same court in the same county. Judgment on the New York decree was entered in her favor on July 10, 1951 for $2976.85, being figured on the New York judgment up to the date of the husband's Nevada divorce decree, but denying judgment for installments accruing after such decree. Her appeal is based upon the contention that she is entitled to the full amount accrued under the New York decree, including sums accruing after the husband's divorce decree. She asserts that under the full faith and credit clause, the New York decree must be recognized and enforced beyond the date of the husband's subsequent divorce decree, and that the case of Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, is controlling.

Respondent says that he has no quarrel with the Estin case, but that it does not apply. He relies upon Herrick v. Herrick, 55 Nev. 59, 25 P.2d 378, to the effect that in Nevada there is no force to the separate maintenance order subsequent to the entry of the divorce decree, and refers to numerous cases from other jurisdictions which have reached the same conclusion. As many other states have held contra. See cases cited in the prevailing and dissenting opinions in Rodda v. Rodda, 185 Or. 140, 200 P.2d 616, 202 P.2d 638, and in Simonton v. Simonton, 40 Idaho 751, 236 P. 863, 42 A.L.R. 1363, and annotation Id. 1375. We simply accept the fact at this point that Nevada follows the rule that a separate maintenance decree does not survive divorce but that New York follows the contrary rule that a separate maintenance decree does survive a subsequent divorce. Estin v. Estin, supra. ¹ See also Estin v. Estin, 296 N.Y. 308, 73 N.E.2d 113. In the present case the Nevada divorce decree so far as it determined the marital status of the parties is not questioned. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273.

It would appear that the question is a new one in this state. It was virtually conceded in the trial court that the wife was entitled to her judgment for $2976.85, the amount accrued under the New York separate maintenance decree up to the date of the Nevada divorce. Appellant claims that the full faith and credit clause ² carries it beyond the divorce, while respondent maintains that the question is merely one of comity. He insists that if the Nevada courts would not recognize a separate maintenance decree, even of its own courts, extending beyond a divorce, comity does not compel Nevada courts to recognize a contrary situation growing out of a New York decree.

(1) We are confronted with a preliminary question. Respondent contends that, assuming for the moment that the New York support decree would survive the subsequent Nevada divorce, the New York award of $45 a week to the wife and $40 a week for the support of the child is not such a final judgment of the Supreme Court of New York as must be accorded full faith and credit as to accrued installments.

This contention must be rejected under authority of Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905. That decision was based on Barber v. Barber, 21 How. (U.S.) 582, 16 L.Ed. 226, against the contention that the Barber case had been overruled by Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810. Quoting the Barber case, with reference to the nature and character of a decree of separation and for alimony, and the operation and effect upon such decree as to past-due installments, of the full faith and credit clause, the court held the same to be a judgment of record to be received as such by other courts, and to be carried into judgment in any other state, 'to have there the same binding force that it has in the state in which it was originally given.' It was held to be error for a Connecticut court to refuse to enforce a prior New York decree to the extent of accrued unpaid alimony payments as being in conflict with the full paith and credit clause.

(2) In conflicts between contrary state policies such as those here involved and necessitating the application of the full faith and credit clause of the federal constitution, the law as pronounced by the Supreme Court of the United States is controlling. Milwaukee County v. M. E. White Co., 296 U.S. 268, 56 S.Ct. 229, 80 L.Ed. 220. In Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 1218, 92 L.Ed. 1561, the wife obtained a New York separation decree and support order in an action in which the husband appeared. Thereafter the husband established his residence in Nevada and obtained a default decree of divorce upon constructive service, the wife not appearing. When she subsequently, in New York, sought enforcement of accrued payments under the New York support order, the husband asserted the Nevada decree as a defense. The Supreme Court recognized the divisible nature of the Nevada decree, effective as determining the marital status, but without effect upon the New York support order. The court said:

'But the question is whether Nevada could under any circumstances adjudicate rights of respondent under the New York judgment when she was not personally served or did not appear in the proceeding. Bassett v. Bassett, 9 Cir., Nev., 141 F.2d 954, held that Nevada could not. We agree with that view.

'The New York judgment is a property interest of respondent, created by New York in a proceeding in which both parties were present. It imposed obligations on petitioner and granted rights to respondent. The property interest which it created was 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 Nevada decree that is said to wipe out respondent's claim for alimony under the New York judgment is nothing less than an attempt by Nevada to 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. Since Nevada had no power to adjudicate respondent's rights in the New York judgment, New York need not give full faith and credit to that phase of Nevada's judgment. A judgment of a court having no jurisdiction to render it is not entitled to the full faith and credit which the Constitution and statute of the United States demand.'

Mr. Justice Jackson, in dissenting, scoffs at the idea that by limiting the effect of the Nevada decree to the personal status of the parties full faith and credit is accorded thereto. He refers to the majority opinion as a 'Solomon-like conclusion that the Nevada decree is half good and half bad under the full faith and credit clause.' The majority opinion, however, based upon the conclusion that Nevada had no jurisdiction on substituted service to alter the wife's rights in the New York judgment, also shows that the conclusion reached 'accommodates the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern.' The court definitely agreed with the view expressed in Bassett v. Bassett, 9 Cir., Nev., 141 F.2d 954, which in turn followed Durlacher v. Durlacher, 9 Cir., Nev., 123 F.2d 70, 72. In the latter case, very similar to the present situation, with reference to the husband's attempt to set up his Nevada divorce in defense of the wife's action in the United States District Court for the District of Nevada to collect alimony awarded by a New York court under a prior decree of separation and maintenance, the Circuit Court of Appeals for this circuit said: 'The Supreme Court has repeatedly held that under the full faith and credit clause of the Constitution (extended by the statute to the court below), a judgment of a sister state must be enforced, even though the cause of action upon which the judgment is based is repugnant to the law of the state requested to enforce it.'

Under Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039, relied upon as a leading case since the opinion was rendered in 1908 and approved so recently as in Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212, decided in June, 1951, the New York separation and award decree cannot be impeached in this court without violating the full faith and credit clause of the federal constitution. Fauntleroy v. Lum, under its facts, presented a stronger case than is presented here. There, residents of Mississippi entered into a contract prohibited by the Mississippi statutes concerning gambling in futures, which statutes inhibited the Mississippi courts from giving effect to any contract made in violation thereof. The parties to the contract submitted their differences to arbitration in Mississippi and the one in whose favor the award was made first sued unsuccessfully in Mississippi upon the award. He...