The opinion
*273 Collins, J.,
dissenting:
I do not feel we are bound to give full faith and credit to the California judgment under authority of the Soule case. As pointed out in Mr. Justice Batjer’s opinion, the United States Supreme Court, the final arbiter of the meaning of the full faith and credit clause, has not said so. In effect then, the California court in Soule pronounces a rule which it hopes the United States Supreme Court will finally adopt. Whether that rule will prevail remains to be seen.
In analyzing the Soule case, it must be kept in mind that following entry of the decree granting divorce and the award of alimony to the wife, the husband, then a Montana resident, appeared specially in California and moved to vacate and delete the award of alimony, court costs and attorney fees. The California court held against his contention, his appearance then became a general one and the judgment upheld. So far as we know, the husband never contested such determination further. There is no question but that the judgment would be upheld in all California courts; but what might have happened had the wife sued on her alimony judgment in Montana? The question would then become whether Montana would be compelled to give the California decree full faith and credit under the federal constitution. That is what we are asked to do here.
I do not think we are bound by what California says is the extent of its jurisdiction. Should the United States Supreme Court say so, then the problem is resolved for all the states.
If appellant here, Willis O. Mizner, were to return to California in a special appearance and contest the decree entered in behalf of his wife for alimony, no doubt the courts of that state would apply the Soule rule, and unless he carried the question to the United States Supreme Court he would be bound.
Unless we are satisfied California had jurisdiction to personally bind appellant to the award of alimony, attorney’s fees and costs, and absent a conclusive adjudication of the point under the federal constitution by the United States Supreme Court, we should not enforce the judgment in issue here. Respondent does not contend there is a determinative United States Supreme Court rule on this point, but relies principally upon the California decision in Soule.
I am not sure the rule in Kraemer v. Kraemer, 79 Nev. 287 , 382 P.2d 394 (1963), is even controlling in this case on the question of finality of an alimony award under an interlocutory decree, when jurisdictionally dependent upon extraterritorial service of process followed here. In the California Kraemer proceeding both parties were personally present and *274 litigated the issues which resulted in the interlocutory decree of divorce and the award of alimony. Two months later, the wife sued in Nevada and the husband again appeared personally. It was upon that state of the record this court said the interlocutory decree awarding alimony was final. There could not be the slightest doubt the California court had full personal jurisdiction to award alimony. Its decree was entitled to full faith and credit in Nevada under the federal constitution. See Williams v. North Carolina, 325 U.S. 226 (1944).
But that is a far cry from what happened here. Appellant, though personally served in Nevada with substitute process, never appeared in California to defend the action. The interlocutory decree of divorce and the award of alimony were entered upon his default. It is in a suit upon that judgment he now challenges for want of jurisdiction of the California court. See Estin v. Estin, 334 U.S. 541, at 549 (1948).
I think we have already taken a position in Nevada on this very point. In Summers v. Summers, 69 Nev. 83, 88 , 241 P.2d 1097 (1952), Mr. Justice Badt, quoted from Estin v. Estin, supra, as follows: “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 proceedings. Bassett v. Bassett, 141 F.2d 954 , held that Nevada could not. We agree with that view.” 334 U.S. at 547 and 548. And further: “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. * * * A judgment of a court having no jurisdiction to render it is not entitled to full faith and credit which the constitution and statutes of the United States demand, [citing cases].” 334 U.S. at 548 and 549.
In the face of that constitutional authority, I do not feel California can extend her jurisdiction through a statute (Cal. C.C.P. § 413) and render an in personam judgment for alimony without personal service which Nevada is required to enforce.
It seems to me there is a distinction between domestic relations cases and personal injury actions. In the latter, once a judgment is entered and affrmed on appeal it is ended. There is no continuing liability for modification and change such as there can be in alimony, child support and custody cases. That is why I think there is a different substantive due process jurisdictional requirement.
*275 In the instant case, if California has personal jurisdiction over appellant for an initial award of alimony, it conceivably will have continuing personal jurisdiction over him to modify the alimony award for the rest of his life. Any time in the future the wife might desire to increase the amount she could file a motion or petition, personally serve the husband with notice wherever he might be, and if he fails to appear, put on her proof ex parte and get an enlarged award. This would have the effect of a personal judgment which she could then sue on wherever the husband could be found. Such a rule would tie a person to the courts of one state with the bonds of personal jurisdiction for his lifetime and even after his death through his estate.
For the reasons cited above, I doubt the rule in Gambs v. Morgenthaler, 83 Nev. 90 , 423 P.2d 670 , controls domestic relations cases.
I also fear the court is not making sufficient allowance for the peculiar problems arising from domestic relations litigation as compared to either tort or contract cases.
I respectfully dissent.