In Re the Estate of Holmes

52 N.E.2d 424, 291 N.Y. 261, 150 A.L.R. 447, 1943 N.Y. LEXIS 1040

• Court: New York Court of Appeals
• Decided: November 24, 1943
• Status: Published

Opinions

Lehman, Ch. J.

Anna Holmes married Ernest H. Davis in the township of Reno, State of Nevada, on September 18, 1937. After the marriage they moved to Lockport in Niagara County, New York, where they have continuously resided until the death of the decedent, then known as Anna Holmes Davis, in January, 1942. At her death, Frances M. Lawson applied to the Surrogate’s Court of Niagara County for letters of administration upon the decedent’s estate, citing Ernest H. Davis as the alleged husband of the deceased. Ernest H. Davis filed an answer to her petition alleging in substance that he was the husband of the deceased and entitled to letters of administration; and on the same day he applied to the court for such letters.

The validity of the marriage between the decedent and Ernest H. Davis is challenged on the ground that at the time of the marriage he had a lawful wife residing in Lockport, New York. The controversy was submitted to the Surrogate upon an agreed statement of facts. It appears from this statement that:

“ Ernest H. Davis, who claims to be the husband of the said deceased, had been previously married to one Helen M. Davis. That in the month of June, 1937, the said Ernest H. Davis went to Reno, Nevada, and there commenced an action for absolute divorce against the said Helen M. Davis. That in his complaint in Nevada, said Ernest H. .Davis alleged that he and the said Helen M. Davis were married in New York State on October 18th, 1926, and that said Helen M. Davis resides at Lockport, New York. That said complaint alleged, as the only grounds for said divorce, ‘ That defendant has treated plaintiff with extreme cruelty, and that the acts of cruelty so committed by said defendant have caused plaintiff great mental anguish and physical pain, causing him to become sick and nervous, made his life miserable and unbearable, and further cohabitation with defendant impossible ’. That said Helen M. Davis did not appear by attorney or in person and was not served personally with a summons, but was served by publication. On September 18th, 1937, the said Ernest H. Davis obtained a decree of absolute divorce against the said Helen M. Davis and on the same day the said Ernest H. Davis married Anna Holmes in the Township of Reno, State of Nevada. The said decree of divorce obtained against the said Helen M. Davis was obtained by the said Ernest H. Davis on the grounds alleged in his complaint, which was not adultery.”

In December, 1937, after the marriage of the decedent and , Ernest H. Davis and their removal to Lockport, New York, “ Helen M. Davis commenced an action in the Supreme Court of this state against the said Ernest H. Davis for absolute divorce on the ground of adultery, alleging specifically that the said Ernest H. Davis was living in adulterous relationship with the said Anna Holmes Davis. The said Ernest H. Davis filed an answer to this summons and complaint alleging, in substance, that the said Helen M. Davis refused to go to the western part of the United States with the said Ernest H. Davis in June, 1937, and that the said Ernest H. Davis did obtain a Nevada divorce from the said Helen M. Davis on grounds other than adultery, and that he married Anna Holmes Davis and that he and the said Anna Holmes Davis, after their marriage, came to Lockport, New York, and held themselves out to the public as husband and wife. ’ ’

The divorce action in this State was referred to a referee, who reported: ‘ ‘ 1. That the same was duly brought on for hearing at the Court House in the City of Lockport, New York, on the 8th day of June, 1939, at ten o’clock in the forenoon of that day, pursuant to notice, thereof duly served upon the Defendant and his attorney; that upon said hearing he was attended by David E. Jeffery, Counsel for the Plaintiff, and by Joseph Speranza, Counsel for the Defendant, who stated in open court and for the record that no defense would be interposed by the Defendant; that he has heard the evidence and testimony and after due deliberation being thereupon had, makes and returns the following decision upon the questions of fact and law involved and finds the following:

“ Findings o.f Fact

“ 1. That the Plaintiff and the Defendant herein were married at the Town of Stafford, Grenesee County, New York, on the 18th day of October, 1926.

“ 2. That the Plaintiff and the Defendant have ever since their said marriage been and now are actual residents and inhabitants of the City of Lockport, Niagara County, New York.

“ 3. That on and subsequent to the 18th day of September, 1937, the Defendant herein has committed adultery by living in adulterous intercourse with a female known as Anna Holmes or Anna Davis at 179 Park Avenue, in the said City of Lockport, New York, and,

“ 4. That the said act's of adultery have been committed without the consent, connivance, privity or procurement of the Plaintiff.

“ 5. That the Plaintiff has not voluntarily co-habited with the Defendant since the discovery of the said act of adultery.

“ 6. That five (5) years have not elapsed since the discovery of said act of adultery by the Plaintiff.

“ 7. That the Plaintiff has not forgiven nor condoned the said act of adultery.

‘ ‘ 8. That no decree of divorce has been granted against either Plaintiff or Defendant in any of the Courts of any State or Territory of the United States or of any foreign country and that no action for divorce has ever been brought by either of the parties against the other, except that the Defendant procured an alleged decree of divorce against the Plaintiff in an action brought by him, as Plaintiff, in 1937, in the District Court of the State of Nevada, in which action the Plaintiff did not appear in any manner.

“ Conclusions of Law

“ 1. That the Plaintiff is entitled to final judgment, unless the Court shall otherwise order in the meantime, three months after the filing of the decision herein and the entry of interlocutory judgment dissolving the marriage between the Plaintiff, Helen M. Davis, and the Defendant, Ernest H. Davis, which was solemnized on the 18th day of October, 1926, and divorcing the parties on the ground of Defendant’s adultery and permitting the Plaintiff to remarry, but forbidding the Defendant to remarry any other person during the lifetime of the Plaintiff, except with the permission of the Court, and permitting the Plaintiff to resume the name of Helen Marie Lacy. Let Judgment be entered accordingly.”

It further appears from the agreed statement of facts that judgment was entered in accordance with said Referee’s Report, and became final in September, 1939. No appeal was ever taken from said New York State judgment. Anna Holmes Davis or Anna Holmes knew, at the time that the said Ernest H. Davis obtained a Decree of Divorce against his said wife, that the said first wife was then living in Lockport and the said Anna Holmes Davis also knew that the first wife of the said Ernest H. Davis began divorce proceedings in the State of New York against him on the ground that he, the said Ernest H. Davis, was living in adulterous intercourse with the said Anna Holmes Davis.

Upon these facts, the Surrogate on October 7, 1942, rendered his decision, stating: “ I am constrained here to hold that at the time of the death of Anna Holmes Davis, Ernest H. Davis was not her legal husband, and therefore his petition for the issuance of Letters of Administration upon her estate should be and is denied.” He held that he must refuse to give effect within this State to the divorce decree obtained in Nevada by Ernest H. Davis against his wife, Helen M. Davis, a resident of Lockport. As authority for his conclusion he cited the opinion of this court in Hubbard v. Hubbard (228 N. Y. 81 at p. 85) that “ the principle of comity between the states of the United States does not require of a state the operation of a divorce decree of a sister state which violates the principles of morality, or the public policy, or municipal regulations established by it. Apart from constitutional obligations the law of no state can have effect as law beyond the territory of the state imposing it, unless by permission of the state where it is allowed to operate.”

In the case of Hubbard v. Hubbard (supra, p. 84) this court applied the “ adjudged policy of this state to refuse to recognize as binding a decree of divorce obtained in a court of a sister state, not the matrimonial domicile, upon grounds insufficient for that purpose in this state, when the divorced defendant resided in this state and was not personally'served with process and did not appear in the action.” The court pointed out in its opinion that it has been conclusively established that such policy is not hostile to the full faith and credit clause of the Federal Constitution. (Art. 4, § 1; Haddock v. Haddock, 201 U. S. 562.) ” Belying upon the rule “ conclusively established ” in Haddock v. Haddock, the courts of this State have applied the same “ adjudged policy ” until December, 1942, when the Supreme Court of the United States in Williams v. North Carolina (317 U. S. 287, 303) reconsidered its decision in Haddock v. Haddock and expressly overruled it. The rule authoritatively established in the Williams case is that “ when a court of one state acting in accord with the requirements of procedural due process alters the marital status of one domiciled in that state by granting him a divorce from his absent spouse, we cannot say its decree should be excepted from the full faith and credit clause merely because its enforcement or recognition in another state would conflict with the policy of the latter.” (Italics are new)

The courts of this State are bouild to follow the rule as formulated by the Supreme Court of the United States in its most recent decision, for as that court pointed out in the same case, it “ is the final arbiter when the question is raised as to what is a permissible limitation on the full faith and credit clause ” of the Constitution of the United States. Thus, when the decree of the Surrogate’s Court in the instant case was reviewed by the Appellate Division, that court was bound to give full faith and credit to a decree of a court of the State of Nevada granting to a person “' domiciled in that state ” a divorce from his absent spouse. Accordingly, the Appellate Division reversed the decree of the Surrogate’s Court and held that the Nevada decree of divorce must be recognized in this State and that the marriage of Ernest H. Davis to the decedent in Nevada on the day the decree was granted is a valid marriage not only in Nevada, but in this State. We have emphasized the “ domicil ” of the person to whom a foreign divorce has been granted, because in Williams v. North Carolina,-the court pointed out that upon the record in that case, i t must assume that petitioners had a bona fide domicil in Nevada, not that the Nevada domicil was a sham.” It then said: “We thus have no question on the present record whether a divorce decree granted by the courts of one state to a resident, as distinguished from a domiciliary, is entitled to full faith and credit in another state. Nor do we reach here the question as to the power of North Carolina to refuse full faith and credit to Nevada divorce decrees because, contrary to the findings of the Nevada court, North Carolina finds that no bona fide domicil was acquired in Nevada.” Until the Supreme Court of the United States decides the questions not reached in the Williams case, the exact scope and effect of the full faith and credit clause in relation to foreign divorce decrees remains to that extent without authoritative definition. Before we express any opinion upon the question left open in the Wil Hams case we must decide whether upon the record in the instant case, the court must again “ assume that petitioners had a bona fide domicil in Nevada, not that the Nevada domicil was a sham.” (p. 302)

It must, of course, he plain that we cannot assume that Davis had a bona fide domicile in Nevada if he is hound by the findings of the referee in the New York action upon which the decree of divorce in favor of Helen M. Davis was based, for then these findings would establish affirmatively that Ernest H. Davis never abandoned his residence or domicile in New York and never established a domicil in Nevada. The appellant urges that even though the courts of this State might be bound by the Constitution of the United States to give full faith and credit to the Nevada judgment of divorce in a case where the validity of the subsequent marriage of the plaintiff in the foreign divorce action is an issue upon which the courts of this State may pass, yet in this case that issue has been conclusively determined against the husband by the judgment of divorce which the first wife subsequently obtained against him in this State.

Unquestionably in the divorce action in this State the primary issue determined by the court was that the foreign divorce was without effect in this State. The judgment might have been different if the case of Williams v. North Carolina had been previously decided. Even if we were to assume that under the principles formulated in that case the judgment is erroneous and would have been reversed as matter of course upon appeal, nevertheless the validity of the judgment could not be challenged after it became final and the issues decided therein could not be litigated again between the parties to the action or their privies. (Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371; Miller v. Tyler 58 N. Y. 477.) Neither the decedent nor the appellant here were, however, parties to the action, though the decedent knew that such an action had been begun on the ground that Ernest H. Davis was “ living in adulterous intercourse with ’ ’ her. The divorce action was a proceeding in rem with respect to the status of the parties to the action and the judgment of divorce establishes that from that time the parties no longer bear the relation of husband and wife. To that extent the judgment is conclusive against all the world, The question remains how far the findings of fact which the decree recites or upon which the judgment is necessarily based are binding upon one of the parties to the action in litigation with other persons who were not parties to the action.

The judgment of divorce obtained in New York by the first wife against Ernest H. Davis is necessarily based upon the fact that until then a valid marriage between the parties to the divorce action was in existence. If that fact was conclusively established not only as between the parties to the divorce action, but also as between the defendant in the divorce action and the woman whom he had married in Nevada and with whom he lived both before and after the judgment of divorce, then, of course, he cannot be heard now to assert that the Nevada decree of divorce dissolved the earlier marriage between himself and the wife who subsequently obtained a decree of divorce, and that no valid marriage existed between -them when judgment of divorce was rendered in New York. If it is not conclusive in litigation between the husband and a person who was not a party to the divorce action, then we must give effect to the Nevada decree in accordance with the provisions of the Federal Constitution as now construed by the Supreme Court of the United States. The general rule applicable to proceedings in rem affecting a marital status has been formulated in the Restatement, by the American Law Institute, of the Law of Judgments, section 74:

“ (1) In á proceeding in rem with respect to a status the judgment is conclusive upon all persons as to the existence of the status.

“ (2) A judgment in such a proceeding will not bind anyone personally unless the court has jurisdiction over him, and it is not conclusive as to a fact upon which the judgment is based except between persons who have actually litigated the question of the existence of the fact.” In accordance with that rule, this court has held that in an action for annulment of marriage brought against a wife by her third husband a decree of annulment of marriage granted by the courts of this State to her second husband on the ground that a Texas decree of divorce purporting to dissolve an earlier marriage between the wife and another man was invalid, was not a conclusive adjudication that the Texas decree was void and that the first marriage was still valid at the time the second marriage was dissolved. (Post v. Post, 71 Misc. 44, affd. 149 App. Div. 452, opinion by McLaughlin, J., affd. without opinion 210 N. Y. 607.) That case cannot be distinguished successfully from the instant case. In each case a judgment in rem granted in New York in a matrimonial action purported to dissolve or annul a marriage and in each case the decree was based on a decision that a foreign decree of divorce purporting to dissolve an earlier marriage was invalid and that the earlier marriage was still valid. In both cases, after the New York court had rendered its judgment in rem, decisions of the Supreme Court of the United States in other cases authoritatively established that the foreign decree of divorce was entitled to full faith and credit in New York. In neither case could the later determination change the conclusive effect of the judgment in rem rendered in New York from which no appeal had been taken, but in neither case did the conclusive effect of the New York judgment in rem dissolving a marital status extend to the fact upon which the judgment was based that a valid marriage previously existed. (See, also, Hendrick v. Biggar, 209 N. Y. 440; Townsend v. Van Buskirk, 22 App. Div. 441, appeal dismissed, 162 N. Y. 265.)

In such cases we apply the rule that “ as between strangers or between parties and strangers, a decree of divorce does not establish the previous validity of the marriage, since the res involved and adjudicated is the condition of subsequent singleness of the parties and not the valid prior existence of marital relations between them.” (2 Freeman on Judgments, § 910).

We find no support in principle or authority for the contention that Ernest H. Davis is estopped in some manner from again litigating the issues decided in the divorce action in this State between Ernest H. Davis and the wife he had married in 1926. He did not institute that divorce action in New York and under the adjudged policy of this State and the rules of law authoritatively established and consistently applied until discarded by the Supreme Court of the United States in Williams v. North Carolina (supra) he had no defense to that action even if he successfully proved that he had established a bona fide domicil in Nevada before he brought a divorce action there. Certainly it cannot be said that his failure to “ interpose any defense ” at the trial of that action mislead the decedent and induced her to change her position. There was, in fact, no dispute between them and no issue which between themselves could have been litigated therein.

The question remains whether even though the findings of the referee in the divorce action brought in New York are not binding in this proceeding, the Nevada judgment has been otherwise impeached. In the case of Lefferts v. Lefferts (263 N. Y. 131) this court applied the rule then firmly established that the validity of a Nevada decree of divorce granted without personal service of the defendant may be impeached by proof that the plaintiff was not domiciled in Nevada; and that full faith and credit might be denied to a foreign decree purporting to adjudicate the marital status of a plaintiff who, it is shown, was not domiciled in the state of the forum, and a defendant who resides in New York and who was not personally served with process and did not appear in the action. In the case we are now reviewing, the appellant has not, in the agreed statement of facts, or by presentation or offer of evidence, except the decision of the referee in the divorce action, challenged the decision of the Nevada court that the plaintiff had acquired a domicile in Nevada sufficient to support the jurisdiction of that court to adjudicate his marital status. Though the appellant has consistently contended that the courts of this State may refuse to give full faith and credit to the Nevada decree she bases that contention primarily, if not exclusively, upon the decision of the Supreme Court of this State in the divorce action instituted here that the Nevada decree was invalid. Since that decision is, as we have said, not binding upon the respondent and since there is no other affirmative proof that the respondent was not domiciled in Nevada when he brought an action for divorce there, we must apply the rule long authoritatively established by the Supreme Court of the United State s: There can be no doubt that if full faith and credit were denied to a judgment rendered in another State upon a suggestion of want of jurisdiction, without evidence to warrant the finding, this court would enforce the constitutional requirement. See German Savings and Loan Society v. Dormitser, ante, page 125.” (Rogers v. Alabama. 192 U. S. 226 at p. 231, opinion by Holmes, J.)

We have found no case in which this court has heretofore attempted to define the scope of the rule that a judgment of a sister state granting the plaintiff a divorce from a spouse not domiciled in that state nor appearing in the action nor personally served with process there imports that the court had acquired jurisdiction to render a valid judgment in rem changing the status of the plaintiff. In many decisions the court has, however, assumed the existence of a presumption, in the absence of evidence to the contrary, that the court had jurisdiction to render judgment, though, doubtless, the validity of the judgment may be impeached by extrinsic evidence. (See Kerr v. Kerr, 41 N. Y. 272, 275; Cross v. Cross, 108 N. Y. 628, 630; Matter of Kimball, 155 N. Y. 62, 68.) Instinct in these and other decisions of this court is the rule that the foreign judgment of divorce will be given full force and effect as a judgment in rem dissolving the marriage of the plaintiff until impeached by evidence which establishes that the court had no jurisdiction over the res.

That rule is in accord with the great weight of judicial authority in this country. (See Aarnes v. Aarnes, 172 La. 648; Howey v. Howey, 240 S. W. 450 [Mo.], cert, denied, 260 U. S. 730; Harrington v. Harrington, 233 Mo. App. 390; Commonwealth ex rel. Cronhardt v. Cronhardt, 127 Pa. Super. 501, on rehearing, 135 Pa. Super. 117; Goodloe v. Hawk, 113 F. 2d, 753, 755, 756, App. D. C.; Dry v. Rice, 147 Va. 331, 338; McFarland v. McFarland, 179 Va. 418, 428.) A different rule has been applied in Massachusetts and perhaps some other jurisdictions, to foreign decrees of divorce. See Commonwealth v. Blood (97 Mass. 538); Kelley v. Kelley (161 Mass. 111); but cf. Peaslee v. Peaslee (147 Mass. 171, 180); Corkum v. Clark (263 Mass. 378, 382); but academic authority as well as the weight of judicial authority is opposed to the exclusion of foreign judgments of divorce from the benefit of the presumption of validity generally accorded to judgments of courts of general jurisdiction. (3 Freeman on Judgments, § 1426; 2 Black on Judgments, § 924; 2 Bishop, New Commentaries on Marriage, Divorce and Separation, § 1526.) The courts of this State have not refused to apply to judgments of divorce that general presumption.

The order should be affirmed, with costs to all parties payable out of the estate..