Griffin v. Griffin

327 U.S. 220, 66 S. Ct. 556, 90 L. Ed. 635, 1946 U.S. LEXIS 2731

Opinions

Mr. Chief Justice Stone

delivered the opinion of the Court.

This is a suit brought in the district court of the District of Columbia, in which respondent sought to recover the amount of a judgment which she had secured against petitioner in 1938 in the Supreme Court of New York for arrears of alimony. The question for decision is the extent to which due process permits the New York adjudication to be made the basis for recovery in another jurisdiction.

The record abounds in confusing and irrelevant matter, but the following facts may be gleaned from the papers in the New York court proceedings which it contains. On June 24, 1924, the Supreme Court of the State of New York entered its interlocutory judgment divorcing respondent from petitioner, which judgment was, in 1926, modified to provide that petitioner should pay to respondent alimony in the sum of $3,000 annually in equal monthly installments. Both parties were then residents of New York, and the divorce action was contested. Petitioner left New. York in 1929, and though he has returned to the jurisdiction intermittently since that time, the record does not show whether he ever again took up residence there. Petitioner was a resident of the District of Columbia at the time this suit was begun.

In 1935 respondent moved in the original divorce proceeding to punish petitioner for contempt for his failure to pay installments of alimony as directed by the decree of divorce, and petitioner, in conformity to New York procedure, made a cross-motion to modify the original judgment by reducing past due and future installments of alimony. Thereupon the New York court entered an order referring to a referee for determination two of the issues of fact raised by the motions, (a) the amount of unpaid installments of alimony due from petitioner to respondent, and (b) petitioner’s then ability to pay them. These questions were litigated by the parties in contested hearings before the referee, whose report of January 7, 1936, found the amount then due from petitioner to respondent-as arrears of alimony, and that petitioner had failed to present any credible testimony showing his in- > ability to pay. The New York supreme court then entered its order of February 25, 1936, declaring that there was due from petitioner to respondent for the period ending October 25, 1935 alimony arrears and accrued interest in the sum of $18,493.64. Petitioner’s appeal from this order to the Appellate Division of the New York supreme court was dismissed for want of prosecution.

Some time later, respondent made a further motion in the supreme court for an order directing the county clerk to enter as a money judgment the arrears of alimony due and unpaid under the judgment of divorce. This motion was granted, and an order was entered February 19, 1938 directing the clerk to docket a judgment in favor of respondent against petitioner in the sum of $25,382.75. As indicated in the order this amount was made up of the following items:

Installments of alimony accrued to October 25,1935, found due by the order of the supreme court of February 25, - 1936.........................;... $18,493.64

Interest on this amount to date of entry of the 1938 order.................. 2, 589.11

Installments of alimony due from October 25,1935, to the date of the 1938 order............................ 3,750.00

Interest on these installments..,....... 550. 00

$25,382. 75

A judgment that respondent recover this amount from petitioner and have execution upon it was entered by the clerk on February 23, 1938, Both the order of February 19,1938 and the judgment upon it were entered ex parte, without notice to petitioner, as then seems to have been permitted under § 538 of the New York Civil Practice Act. Thayer v. Thayer, 145 App. Div. 268, 129 N. Y. S. 1035 (1st Dept.) -¹ Petitioner, by his answer in the present suit on this judgment, set up as defenses that the judgment of February 1938 was entered without notice to him, and was for that reason null and void for want of due process, and also “because of gross fraud in its incidents, and in its procurement, and in its making and entry, and in its monetary contents, and in the amount claimed to be due and owing under it,” and so was not entitled to any recognition in the District of Columbia.

On motion for summary judgment, supported by pleadings, affidavit and admissions establishing the several judgments, orders and records of the New York supreme court to which we have referred, the district court ordered summary judgment in the sum of $25,382.75, with interest from February 23, 1938. The court of appeals for the District affirmed without opinion. We granted certiorari, 326 U. S. 705, on a petition which urges the sufficiency of the defenses raised below.

By Rule 56 (d) of the Rule's of Civil Procedure, the court, on a motion for summary judgment, is required to ascertain by examination of the pleadings and the evidence before it what material facts éxist without substantial controversy and what material facts are actually and in good faith controverted, and thereupon to make an order specifying the facts that appear without substantial controversy, and directing such further proceedings in the action as are just. For the purposes of the trial it is provided that the facts so specified shall be deemed established and the trial conducted accordingly. In the present state of the record, and in order that the summary judgment procedure may be properly followed, it becomes necessary to determine what facts appear without substantial controversy, and in the light of those facts to direct such further proceedings in the action as are just.

Of controlling significance in this case are the following uncontroverted facts of record: the judgment or decree rendered by the New York supreme court in 1926 directing annual payments of alimony in the sum of $3,000;'the order of the New York supreme court in the same proceeding determining as a result of an active litigation between the parties that as of February 25, 1936, there was due and payable from petitioner to respondent arrears of alimony in the sum of $18,493.64, representing installments accrued to October 25, 1935, with interest to that date, and that petitioner was not entitled to any reduction in the amount due; and finally, the judgment of the New York supreme court of 1938, which incorporated in the amount adjudged to be due the arrears of alimony with interest found by the 1936 order to have accrued to October 25,1935.

We have examined the New York law, and conclude that the 1926 New York alimony decree was, under the New York practice, subject to some power of modification nunc pro tunc as to alimony accrued but unpaid up to the time of modification. See New York Civil Practice Act, § 1170; Laws 1925, Ch. 240.² Under the local practice, alimony which has accrued under a decree of divorce may not be collected by execution unless and until a judgment for the amount of alimony accrued but unpaid is docketed by order of the court which issued the decree. Thayer v. Thayer, supra; Ostrin v. Posner, 127 Misc. 313, 215 N. Y. S. 259. And upon a motion to docket as a judgment, arrears of alimony awarded under a prior decree, the husband may defend on the grounds that the alimony or some part of it is not due because of the death or remarriage of the wife, Kirkbride v. Van Note, 275 N. Y. 244, 9 N. E. 2d 852; or that the obligation has been discharged by payment or otherwise, Karlin v. Karlin, 280 N. Y. 32, 19 N. E. 2d 669 ; or that circumstances have so changed as to justify a reduction of alimony already accrued by modification of the alimony decree, Van Dusen v. Van Dusen, 258 App. Div. 1020, 17 N. Y. S. 2d 96 (3d Dept.); Cunningham v. Cunningham, 261 App. Div. 973, 25 N. Y. S. 2d 933, 934 (2d Dept.); Eisinger v. Eisinger, 261 App. Div. 1031, 26 N.Y. S. 2d 22 (3d Dept.).

Concededly the 1938 judgment was entered without actual notice to or appearance by petitioner, and without any form of service of process calculated to give him notice of the proceedings.' Compare International Shoe Co. v. Washington, 326 U. S. 310, 320-321. Because of the omission, and to the extent that petitioner was thus deprived of an opportunity to raise defenses otherwise open to him under the law of New York against the docketing of judgment for accrued alimony, there was a want of judicial due process, and hence want of that jurisdiction over the person of petitioner prerequisite to the rendition of a judgment in personam against him. McDonald v. Mabee, 243 U. S. 90; cf. Webster v. Reid, 11 How. 437, 459. The only indication in the récord as to petitioner’s residence at the time of the entry of the 1938 judgment is a recitation in the judgment itself that he was then a resident of the District of Columbia. But it is immaterial for present purposes whether or not petitioner was a domiciled resident of New York at the time, either within or temporarily without the State, or a resident of some other jurisdiction. It is plain in any case that a judgment in personam directing execution to issue against petitioner, and thus purporting to cut off all available defenses, could not be rendered on any theory of the State’s power over him, without some form of notice by personal or substituted service. Wuchter v. Pizzutti, 276 U. S. 13, 18-20; Restatement of Conflict of Laws, § 75; and compare Milliken v. Meyer, 311 U. S. 457. Such notice cannot be dispensed with even in the case of judgments in rem with respect to property within the jurisdiction of the cpurt rendering the judgment. Roller v. Holly, 176 U. S. 398, 409.

A judgment obtained in violation of procedural due process is not entitled to full faith and credit when sued upon in another jurisdiction. National Exchange Bank v. Wiley, 195 U. S. 257; Old Wayne Life Assn. v. McDonough, 204 U. S. 8, 23; Baker v. Baker, Eccles & Co., 242 U. S. 394, 401. Moreover, due process requires that no other jurisdiction shall give effect, even as a matter of comity, to a judgment elsewhere acquired without due process. Restatement of Judgments, § 11, Comment c.

While it is undoubtedly true that the 1926 decree, taken with the New York practice on the subject, gave petitioner notice at the time of its entry that further proceedings might be taken to docket in judgment form the obligation to pay installments accruing under the decree, we find in this no ground for saying that due process does not require further notice of the time and place of such further proceedings, inasmuch as they undertook substantially to affect his rights in ways in which the 1926 decree did not.³ By § 1170 of the New York Civil Practice Act, petitioner was afforded the opportunity to move to modify the alimony decree nunc pro tunc. The right afforded by that section is a substantial one, and may, under the law of New York, be exercised by him, in effect by way of defense, in addition to the defense of payment, in a proceeding begun by his wife to docket a judgment for accrued alimony. See Van Dusen v. Van Dusen, supra; Cunningham v. Cunningham, supra; Eisinger v. Eisinger, supra. As we read the 1938 judgment, which recited that the alimony was “due and unpaid,” and directed the issuance of execution for its collection, it purported to cut off any defense of payment or claim under § 1170, which petitioner might have been prompted to assert, and which he had the right to assert in the very proceeding which culminated in the judgment sued upon.⁴ That right could not be rendered nugatory by failure to give him notice of that proceeding.

It is said that we must presume that the New York practice requires that a judgment for accrued alimony which has been docketed without notice must, quite apart from due process requirements, be set aside on the defendant’s application showing to the court that he had a defense to the claim for accrued alimony.⁵ From this it is said to follow that the 1938 judgment did not deprive petitioner of any right which he previously had, or of any defense which he might have been entitled to make, and that therefore'the judgment is not wanting in due process. The argument then runs that since such a judgment satisfies due process it is entitled to as much faith and credit in 'other jurisdictions as it has in New York. This, it is suggested, means that the judgment may be made the basis of suit in another jurisdiction, but subject there to all those defenses which would be grounds for setting it aside in New York.

But if want of notice were, without more, a sufficient ground for setting aside the judgment under the New York practice, this could hardly be held to amount to anything more than recognition by New York of the constitutional precept that a court may not act to give a personal judgment in the absence of notice. If New York, by its practice, recognizes the ineffectiveness of such a judgment, that could not be made, a ground for giving the judgment effect elsewhere more than any other judgment rendered without notice. It might as well be said that any judgment which does not validly cut off defenses because rendered without due process may be made the. basis of suit elsewhere subject to those defenses. To the extent that New York refuses, if it does refuse, to set aside the judgment of 1938 unless there be some affirmative showing that there was a meritorious substantive defense to its entry, there is an assertion of power in the court to enter a money judgment and issue execution upon it. without, notice. The assertion for the first time by thé 1938 judgment of power to adjudicate petitioner’s liability for accrued ¿limony and to direct its enforcement by execution, see Thayer v. Thayer, supra, does not differ in its nature and constitutional effect from the like assertion of power to issue execution by any other judgment rendered, withoutjaotice.

Due process forbids any exercise of judicial power which, but for the constitutional infirmity, would substantially affect a defendant’s rights. To the suggestion that under the presumed New York practice the power asserted by the judgment does not include the final adjudication of any of the defenses which petitioner might, have had, and that notice is therefore not required, the answer must be that the judgment authorizes the immediate issuance of execution. We are unable to reconcile the direction that petitioner’s property be seized on execution to satisfy an obligation for the first time found by the judgment to be “due and unpaid” with the theory that the obligation is, for constitutional purposes, thus only tentatively adjudicated. There can be no doubt that a levy upon any property petitioner might have in New York would substantially, and in at least some instances, permanently affect his rights. We cannot say that this could be done without notice of the proceeding said'to justify the levy. Even though petitioner could, if he knew of the judgment before execution is actually levied, move to set the judgment aside, that could not save the judgment from its due process infirmity, since it and the New York practice purport to authorize the levy of execution before petitioner is notified of the proceeding or the judgment.

Since by virtue of the due process clause the judgment is ineffective in New York to adjudicate petitioner’s rights for enforcement purposes, it cannot be made the instrument for enforcing elsewhere the obligation purportedly adjudicated by it. And even if we were to say that by virtue of the New York practice, and without reference 'to due process, the 1938 judgment is not an assertion of judicial power to bind petitioner’s property for the obligation which the judgment purports to establish, such a judgment would obviously add nothing to the 1926 decree as a basis for enforcing the obligation in another jurisdiction. Neither the judgment nor the earlier decree would- do more than establish the original obligation to pay alimony subject to defenses which the supposed New York practice would preserve if due process did not.

It follows that to the extent that the 1938 judgment purports to adjudge as due and owing arrears of alimony-accrued since October 25, 1935, the end of the period covered by the 1936 order, it is ineffective to establish petitioner’s personal liability, or to deprive him of defenses to his asserted liability for those arrears.

But the 1938 judgment, so far as it confirmed the adjudication of the amount of alimony and interest due as of October 25, 1935, stands on a different footing. It has not been suggested, and we have not found any New York authority holding, that any of the questions with respect to payment or to the modification of the alimony decree nunc pro tunc which petitioner raised or might have raised in the 1936 proceedings were thereafter open to him as to the accrued installments which were the subject of his motion to modify the decree. The 1936 order became final upon the dismissal of petitioner’s appeal from it, and was an adjudication between the parties that arrears of alimony were then due and owing by petitioner to respondent in the specified amount. As we said in Barber v. Barber, 323 U. S. 77, 82, paraphrasing Sistare v. Sistare, 218 U. S. 1, where a decree for alimony is made the basis of an action in another jurisdiction, “ ‘every reasonable implication must be resorted to against the existence of’ a power to modify or revoke installments of alimony already accrued ‘in the absence of clear language manifesting an intention to confer it.’ ”

Defenses which might otherwise have been open to petitioner in the 1938 proceeding with respect to alimony accrued to October 25,1935 must thus oe taken as having been foreclosed by the 1936 proceedings, of which petitioner had actual notice, and in which he actively participated. The 1938 judgment, so far as it confirmed the 1936 order by which petitioner was already bound, impaired no rights of petitioner, and foreclosed no defense which he had not had opportunity to offer. Due process does not require that notice be given before confirmation of rights theretofore established in a proceeding of which adequate notice was given.

. Upon the facts shown, respondent was therefore entitled to maintain the present suit on the 1938 judgment for the amount, with interest, thus adjudicated to.be due by the order of 1936, and as so adjudicated, confirmed by the judgment of 1938. For in Sistare v. Sistare, supra, we held that the full faith and credit clause of the Constitution required a Connecticut court to render judgment for past due installments of alimony which had accrued under a New York decree for future alimony, the right to which wo held had become vested under the then existing New York law, even though the decree might be subject to modification prospectively as to future installments by further orders of the New York court.

We have said that the failure to give petitioner notice of the 1938 proceeding did not prejudice him as to any of the defenses which he might have raised in the 1936 proceeding. But although it purported to do so, the 1938 judgment,, because rendered without notice, could not foreclose' defenses going to the discharge of the obligation established by the order of 1936, and arising since its date. It follows that, upon further proceedings upon the remand of this cause to the district court, respondent will be taken as having established the amount of alimony accrued to October 25,1935 remaining due and unpaid as of February 25, 1936, subject to any subsequent defense going to the discharge of the obligation so established, which petitioner should be permitted to raise, if any he has.

In the present state of the record, and because of the limited nature of the questions presented and argued here, we do not determine the extent to which respondent may, upon such further proceedings as are appropriate on the return of this case to the district court, recover, upon the 1926 decree, installments of alimony which have accrued since October 25, 1935. While the 1926 decree is in the record and must be the foundation of any right respondent has to recover arrears of alimony accruing since October 25, 1935, her pleadings make it sufficiently clear that the present suit was based upon the 1938 judgment rather than upon the decree. If respondent is entitled to base a suit for installments of alimony accruing after October 25, 1935 on the 1926 decree, she has misconceived her cause of action as to those installments by seeking to recover them by virtue of the 1938 judgment, which is invalid as to them because obtained without notice. But petitioner is not to be prejudiced by respondent’s mistake, for since he was entitled to regard the suit as one upon the judgment, he was not required to interpose defenses which would be apt if the suit were upon the 1926 decree. The suit on the 1938 judgment, in its present form, is not to be viewed as if it were on the 1926 decree, a new and different cause of action, and petitioner is not to be penalized for not, having already raised his defenses to a claim not presented by respondent’s pleadings. In remanding we leave the district court free to consider whether respondent, upon issues appropriately framed in conformity to the summary judgment procedure, or by amended pleadings, may recover on the basis of the 1926 decree, arrears of alimony accruing since October 25, 1935.⁶

Only a word need be said as to petitioner’s defense that the judgment was procured by fraud. Although his answer pieads his legal conclusion that the judgment is not entitled to recognition because “of gross fraud in its incidents, and in its procurement,” etc., etc., his answer sets up no facts showing the alleged fraud. A part of his answer and an unverified statement filed by petitioner in response to the motion for summary judgment were ordered stricken by the trial court, evidently because .irrelevant and scandalous. In these the charge of fraud is elaborated by general statements that the machinations of the New York counsel of the parties, and their racial, religious and political affiliations with the judges who have presided over the various phases of the New York litigation, have resulted in the failure of justice exemplified by the several decisions adverse to petitioner. We have examined these assertions and find that the only support for them, so far as appears, is petitioner’s unsupported suspicions. We thus find no basis for the allegation that, the judgment was procured or in some way affected by fraud, or for the contention that the offensive matter was improperly stricken. We have examined, but find it unnecessary to discuss various other of petitioner’s contentions, which are likewise without merit.

The judgment will be reversed and the case remanded for further proceedings in conformity to this opinion.

So ordered.

Mr. Justice Jackson took no part in the consideration or decision of this case.

1 Since the entry of the 1938 judgment, § 1171-b of the New York Civil Practice Act has been added by Laws of 1939, Ch. 431, amended, Laws of 1940, Ch. 226, so as to provide:

“§ 1171-b. Enforcement by execution of judgment or order in action for divorce, separation or annulment. Where the husband, in an action for divorce, separation, annulment, or declaration of nullity of a void marriage, makes default in paying any sum of money as required by the judgment or order directing the payment thereof, the court may make an order directing the entry of judgment for the amount of such arrears, together with ten dollars costs and disbursements. The application for such order shall be upon such notice to the husband as the court may direct. Such judgment may be enforced by execution or in any other manner provided by law for the collection of money judgments. The relief herein provided for. is in addition to any and every other remedy to which the wife may be entitled under the law.” (Italics supplied.)

2 The New York law described in Sistare v. Sistare, 218 U. S. 1, decided in 1910, differs significantly from the more recent New York law which governs this case, as will be seen from the authorities cited. Ch. 240 of the Laws of 1925 amended § 1170 of the Civil Practice Act so as to provide in part: “Where an action for divorce or separation is brought by either husband or wife, the court, except as otherwise expressly prescribed by statute, must give, either in the final judgment, or by one or more orders, made from time to time before final judgment, such directions as justice requires, between the parties, . . . where the action is brought by the wife, for the support of the plaintiff. The court, by order, upon the application of either party to the action, . . . after due notice to the other, to be given in such manner as the court shall prescribe, at any time after final judgment, may annul, vary or modify such directions, or in case no such direction or directions shall have been made, amend it by inserting such direction or directions as justice requires ... for the support of the plaintiff in such final judgment or order or orders. . .

3 We do not share in the apprehension that the cost of providing such notice as will satisfy due process requirements each time a proceeding is begun to docket a judgment for an accrued installment of alimony will be ineommensurately high. In various statutes New York has been able to provide for notice by mail, which is reasonably adapted to provide actual notice and inexpensive in its operation. New York Civil Practice Act, § 229-b; New York Real Property Law, § 442-g; New York Vehicle and Traffic Law, §§ 52, 52-a; see also Durlacher v. Durlacher, 173 Misc. 329, 17 N. Y. S. 2d 643.

4 A judgment procured by fraud may be vacated on that ground in the State of its rendition, and the fraud may perhaps be urged as a defense against its enforcement elsewhere. But a demonstration that the alimony has been paid would not necessarily establish that a judgment for arrears had been fraudulently procured by the wife’s false representations to the court that they had not been paid. There are many instances in which a finding of payment will have turned on substantial questions of fact or law upon which a defendant was entitled to be heard, but as to which it' could not be said that his antagonist had practiced fraud on the court. Moreover, some available defenses other than payment, as for example, change of the husband’s circumstances, are of such nature as to afford no basis for attacking the judgment as fraudulent.

5 In Thayer v. Thayer, 145 App. Div. 268, 270-271, 129 N. Y. S. 1035, it was said by way of dictum, “If the court is misled and an installment improperly docketed, the defendant will find no difficulty in having the mistake corrected.” But that case was decided before the adoption of § 1170 of the-New York Civil Practice Act permitting the modification of any alimony decree nunc pro tunc by reducing the amount of accrued, alimony. See note 2, supra. We cannot assume-that the “mistake” contemplated by that opinion was one not relating to payment or discharge. Whether under New York practice a judgment for accrued alimony, docketed without notice, could be opened and the amount of accrued alimony reduced nunc pro tunc, remains a matter for speculation. Tn any case, § 1170 itself does not appear to authorize a motion to set aside a judgment docketed for alimony accrued under an earlier decree directing payment of installments of alimony.

6 See Barber v. Barber, 323 U. S. at 81; Jacobs, The Enforcement of Foreign Decrees for Alimony (1939), 6 Law & Contemporary Problems, 250, 263-4.