Petition — Brown v. Brown

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JEC 17 1980

MICHAEL RODAK, JR., CLERK

sini

Number

TO THE

Supreme Court of the United States

OCTOBER, 1980 TERM

KAREN TOWNSEND BROWN

versus

DONALD R. BROWN

ON WRIT OF CERTIORARI TO THE SUPREME

COURT OF THE STATE OF LOUISIANA

PETITION FOR WRIT OF CERTIORARI

LOVE, RIGBY, DEHAN, LOVE & McDANIEL

600 Johnson Building

P.O. Box 1835

Shreveport, Louisiana 71166

(318) 226-1880

COUNSEL OF RECORD FOR

KAREN TOWNSEND BROWN

MID-SOUTH PRESS, SHREVEPORT, LOUISIANA

Number

TO THE

Supreme Court of the United States

OCTOBER, 1980 TERM

KAREN TOWNSEND BROWN

versus

DONALD R. BROWN

ON WRIT OF CERTIORARI TO THE SUPREME

COURT OF THE STATE OF LOUISIANA

PETITION FOR WRIT OF CERTIORARI

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF LOUISIANA

Petitioner, Karen Townsend Brown, prays that a Writ of

Certiorari issue to review the final order of the Supreme Court

of the State of Louisiana sustaining defendant's Peremptory

Exception of Res judicata to petitioner’s suit for alimony.

QUESTIONS PRESENTED FOR REVIEW

1. Is Louisiana barred under the Full Faith and Credit

Clause from awarding alimony in a suit between two

of its citizens subsequent to an Arkansas divorce be-

tween them, because of an Arkansas jurisdictional

rule that everything that “might have been pleaded”

is barred by res judicata, when alimony was not an

issue nor was litigated in Arkansas?

2. Does Louisiana have sufficient interest in regulating

the support obligations of its citizens, in a suit be-

tween two of its citizens, to award post-divorce

alimony notwithstanding an Arkansas res judicata

rule that would prevent such an award in Arkansas

because the claimant spouse did not seek alimony or

reserve her right to it in an Arkansas consent divorce

between them at a time when they were Louisiana

citizens?

LIST OF PARTIES TO PROCEEDING

Karen Townsend Brown

Donald R. Brown

Pr SF Per

TABLE OF CONTENTS

Page

Questions presented for Review................... 2

List of Parties to Proceedings ..................... 2

I xg aca G cis cov cas vwad sears 3

ES Re ir er 4-5

Opinions Delivered in Courts Below............... 6

Statement of Grounds on

Which Jurisdiction is Invoked..................... 6

Constitutional Provision

PIII gee Pd views ae vue bean cies 7

IT AIDS os ng foie so sas koe bate be’s 7-8

IN ghia S20 osc Hk ged Whe o'e 38 VA ok a 9-15

a rt ey Sos eke ek eee ee 15

Reasons Relied on for

A eer rer rere: 15-16

eas tae os og a ros oo cl b acetal 16

Appendix

a. Copy of Opinion and Dissenting

Opinion of Supreme Court of State of

Louisiana sought to be reviewed,

oe A er a A-1—A-6

b. Copy of Order of Supreme Court

of Louisiana denying Rehearing. ........ A-6—A-8

c. Copy of Opinion, Court of Appeals,

Second Circuit, State of Louisiana in

Brown v. Brown, 377 So. 2d 438........ A-8—A-15

d. Copy of Opinion, Fourth Judicial

District Court, Ouachita Parish,

Louisiana, in Brown v. Brown. ....... A-15—A-16

4

TABLE OF AUTHORITIES

Page

Cases:

Clark v. Clark (Nev. Sup. Ct. 1964)

ee ells dn wa Ha Hawa ES GSMA YONI 16

Ellis v. Ellis,

949 S.W. 2d B02 (1952)... 6. cece eee eens 9

Estin v. Estin

334 U.S. S55 (1948)... 06. ccc eee e cree e eee e eens 13

Ford v. Ford,

371 U.S. 187, 83 S. Ct. 273,

OL. Ed. 2d 240 (1962)....... cece eee eee e eens 12

Fulmer.v. Fulmer

(La. 1974) 301 So. 2d 622....... 6. eee eee eee eee 10

Golson v. Golson,

351 So. 2d 100 (La. 1977) ..... 6... eee A-3

Hastings v. Rose Courts, Inc.

(Sup. Ct. Ark. 1963) 373 S.W. 2d 583..........-25 055: re)

Holliday v. Holliday,

(La. Sup. Ct. 1978) 358 So. 2d 618 ........--- seer e es 13

Howard v. Green,

(8th Cir. C.A. Ark. 1977) 555 Fed. EPs 9

Industrial Commission of Wisconsin v. McCartier,

330 U.S. 622 (1947)... 66. cece cece eee eee eee e eens 13

Kovacs v. Brewer,

356 U.S. 604, 78 S. Ct. 963,

2 L. Ed. 2d 1008 (1958)....... cies Rea ae aa 12

Magnolia Petroleum Co. v. Hart,

990 U.S. 490 (1043)... ec eee nese renee: 12,13

May v. Anderson,

345 U.S. 528, 73 S. Ct. 840,

O7 L.. Ed. 1981 (1053) 0... ccc teen ence ween: 12

May v. Edwards

(Sup. Ct. Ark. 1975) 529S.W. 2d 647.........-- 00s g

Miller v. Miller,

190 S.W. 2 OO] (1945)... ccc ce cece ee ewer eenes )

Milwaukee County v. M.E. White Co.,

SES a ee a 12

Moorman v. Chisler,

(Sup. Ct. Ark. 1974) 506 S.W. 24 840................. y

New York ex rel Halvey v. Halvey,

330 U.S. 610, 67 S. Ct. 903,

MEO oo. asin cin cnccccccccccucccces 12

Riegler v. Riegler,

(Sup. Ct. Ark. 1968) 426S.W. 2d 789................. y

Sewell v. Argonout Southwest Insurance Co.,

(La. 1978) 362 So. 2d 758... 0... cece. 10

Sliman v. McBee,

(La. 1975) 311 So. 2d 248... 00 eee, 10

Thornbrough v. Barnhart,

(Sup. Ct. Ark. 1960) 340 S.W. 2d569................. 9

Vanderbilt v. Vanderbilt,

354 U.S. 416 (1951)... ec. 13

Walder v. Walder,

159 La. 231, 105 So. 300... 0... eee. 13

Williams v. North Carolina,

325 U.S. 226 (1945)... cee ee 13

Yarborough v. Yarborough,

290 U.S. 202, 78 L. Ed. 269 (1933)....... 10, 11, 12, 13, 14

Constitutional and Statutory Provisions:

Bam. GIBB. ww ccc ccc ccc cccccccccccceucs 9-10

16 Am. Jur. 2d, “Conflicts of Laws,” §12, page26........ 10

Conflicts of Laws, Section 103...................... 12, 14

15 A C.J.S., “Conflicts of Laws,” §§14(1)-(8) ............ 10

Foster and Freed, “Modification, Recognition and

Enforcement of Foreign Alimony Orders,”

Vol. II, California Western Law Review 280........... 15

Reese and Johnson, “The Scope of Full Faith and

Credit to Judgments,” 49 Columbia Law Review

NG Cc kA bdy sch une Gade e Cinch edcawdenain 13

OPINIONS DELIVERED IN COURTS BELOW

1. Fourth District Court, Ouachita Parish, Louisiana

Reasons for Judgment on Exception of Res Judicata

(not reported),

2. Karen Townsend Brown v. Donald R. Brown, La.

App., 377 So. 2d 438.

3. Karen Townsend Brown v. Donald R. Brown, La.,

379 So. 2d 1101.

4. Karen Townsend Brown v. Donald R. Brown, La.

1980, 387 So. 2d 565.

STATEMENT OF GROUND ON WHICH

JURISDICTION IS INVOKED |

The judgment of the Supreme Court of the State of Loui-

siana sought to be reviewed was rendered May 19, 1980,

Justices Calogero and Watson dissenting. The dissenting opin-

ion is filed June 4, 1980. Petitioner timely filed for a Rehearing

on May 29, 1980 (Rule IX, Section 1 of the Louisiana Supreme

Court Rules). The Application for Rehearing was denied on

September 19, 1980, Justices Calogero, Watson and Lemmon

voting to grant a rehearing. Jurisdiction of this Honorable

Court to review the judgment in question is conferred by 28

U.S.C. §1257(3). The Full Faith and Credit Clause of the

Constitution of the United States, Article IV, Section 1 was

construed by the Louisiana Supreme Court as precluding an

award of post-divorce alimony to petitioner.

CONSTITUTIONAL PROVISION INVOLVED IN CASE

Full Faith and Credit shall be given in each state to the

public Acts, Records, and Judicial Proceedings of every

other state. Article IV, Section 1 of the Constitution of

the United States.

STATEMENT OF THE CASE

At all relevant times, both Mr. and Mrs. Brown were

citizens of the State of Louisiana and domiciled in the City of

Monroe, Ouachita Parish, Louisiana, in close proximity to the

Louisiana-Arkansas border. Mr. Brown is a prominent

Monroe attorney-at-law. In a consent proceeding, Mrs. Brown

filed a petition in the Chancery Court of Union County,

Arkansas (at E] Dorado, Arkansas, approximately 60 miles

from Monroe) seeking a divorce and custody of their four

children. She did not seek alimony or child support and no

judgment of alimony or child support was rendered. On June

10, 1977, Mr. Brown filed a waiver and entry of appearance,

and on the same date a judgment of divorce and custody was

rendered, in which Mr. Brown was adjudicated to be at fault.

Thereafter, in August, 1978, Mrs. Brown sought alimony

and child support in the District Court of Ouachita Parish,

Louisiana. Mr. Brown filed a Peremptory Exception of Res

Judicata to her claim for post-divorce (permanent) alimony,

which exception was sustained by the Trial Court and af-

firmed by the Court of Appeal, Second Circuit, and the

Supreme Court of the State of Louisiana.

All Courts held that Louisiana was bound, under the Full

Faith and Credit Clause, to give effect in Louisiana to the

Arkansas Res Judicata rule that precludes relitigation not only

of all matters at issue in the Arkansas divorce proceeding, but

also all matters which could have been raised by Mrs. Brown.

The federal question was raised in the Trial Court by the

Exception of Res Judicata. The Trial Court held:

“Louisiana Courts, pursuant to constitutional and

statutory mandate, should give the same effect to the

Arkansas divorce that the courts of Arkansas would. U.S.

Const. Art. 4, §1; 28 U.S.C. 1738; Golson v. Golson, 351

So. 2d 100 (La., 1977)”

On appeal to the Court of Appeal, Second Circuit, State of

Louisiana, applicant assigned as error:

2. Alternatively, the trial court erred in holding that it

was bound, under the Full Faith and Credit Clause,

to apply Arkansas principles of Res Judicata to the

divorce decree.

The Court of Appeal, Second Circuit, State of Louisiana

held:

“To determine the preclusive effect of the Arkansas

divorce decree upon the issue of alimony, one must look

to the law of Arkansas, the rendering state. As discussed

above, the Arkansas law holds that once the divorce

decree is granted, the question of alimony is res judicata,

even though alimony was not sought and the issue was .

not litigated....Because of Full Faith and Credit, Loui-

siana must give the same res judicata effect to the Arkan-

sas decree as Arkansas would.” 377 So. 2d 438, at 440.

In her Application for Writs to the Louisiana Supreme

Court (granted 379 So. 2d 1101), applicant urged the identif-

cal Assignment of Error quoted above. The Louisiana

Supreme Court held:

“We therefore hold that the Arkansas judgment is enti-

tled to full faith and credit, and we must give it the same

preclusive effect that it would have in Arkansas. Plaintiff

is precluded by that judgment from obtaining permanent

alimony.” 387 So. 2d 565 at p. 567.

ARGUMENT

The Louisiana courts held that Arkansas follows the old

Common Law Res Judicata Rule that bars relitigation not only

of all matters actually litigated between the parties, but also

all matters which “might have been” litigated (Miller v.

Miller, 190 S.W. 2d 991 (1945); Taylor v. Taylor, 153 Ark.

266, 240 S.W. 6 (1922); Ellis v. Ellis, 249 S.W. 2d 302

(1952) ), and held that, because Mrs. Brown had not sought

alimony in a prior Arkansas divorce proceedings between the

parties nor reserved her right to do so in the future, that she

was barred in Arkansas from seeking alimony. The Louisiana

Courts further held that Full Faith and Credit required that

Louisiana give this same preclusive effect to the Arkansas

decree in a subsequent Louisiana suit by Mrs. Brown for

alimony. Arguably, Arkansas has abandoned this old Common

Law Res Judicata rule. See May v. Edwards (Sup. Ct. Ark.

1975) 529 S.W. 2d 647, Moorman v. Chisler (Sup. Ct. Ark.

1974) 506 S.W. 2d 840, Hastings v. Rose Courts, Inc. (Sup.

Ct. Ark. 1963) 373 S.W. 2d 583, Thornbrough v. Barnhart

(Sup. Ct. Ark. 1960) 340 S.W. 2d 569, Riegler v. Riegler,

(Sup. Ct. Ark. 1968) 426 S.W. 2d 789, Howard v. Green (8th

Cir. C. A. Ark. 1977) 555 Fed. 2d 1978.

Louisiana fellows the Civil Law rule, incorporated in Loui-

siana Civil] Code Article 2286:

16

“The authority of the thing adjudged takes place only

with respect to what was the object of the judgment. The

thing demanded must be the same; the demand must be

founded on the same cause of action; the demand must be

between the same parties, and formed by them against

each other in the same quality.”

In Louisiana, a subsequent suit for alimony would not be

barred under the Civilian concept of res judicata, as the object

of the suit, the thing demanded, and the cause of action are all

different. See Sliman v. McBee, 311 So. 2d 248 (La. 1975) and

Sewell v. Argonaut Southwest Insurance Company, 362 So. 2d

758 (La. 1978). Additionally, because Mr. Brown was ad-

judicated to be at fault in the Arkansas decree, Mrs. Brown is

entitled to permanent (post-divorce) alimony upon proof of

her need and the ability of Mr. Brown. Civil Code Article 160;

Fulmer v. Fulmer, 301 So. 2d 622 (La. 1974). The only bar is

the application of the Full Faith and Credit Clause.

In the case at bar, both parties were citizens and residents of

Louisiana at the time of the institution of the divorce suit, the

rendition of the divorce judgment, and subsequent thereto.

Neither was a resident nor a citizen of Arkansas. Louisiana is

the only state having any interest in the support obligations of

the parties to each other, and, inferentially, to their four

children. Arkansas has no further interest in the parties.

The status or condition of a person and the relation in which

he stands to other persons are fixed by the law of the domiciles

of the parties. 16 Am. Jur. 2d, “Conflicts of Laws,” §12, page

26; 15 AC.J.S., “Conflicts of Laws,” §§14 (1) - (8). Therefore,

the obligation of Mr. Brown to support Mrs. Brown (and the

minor Brown children) is determined by Louisiana law, (Yar-

borough v. Yarborough, 290 U.S. 202, 78 L. Ed. 269 (1933),

majority opinion, footnote 24), except for the claimed

preclusive effect of Full Faith and Credit.

This Honorable Court has not addressed itself definitively to

the question presented in this case: is Louisiana bound, as bet-

ween two of its citizens, to give the same preclusive effect to

the Arkansas decree that would be given it in Arkansas, or does

i]

Louisiana have sufficient interest in the welfare of its citizens

to apply its own res judicata rule?

The question was left open in Yarborough v. Yarborough,

290 U.S. 202, 78 L. Ed. 269 (1933). Mr. Justice Stone, dissent-

ing, pointed out that this Honorable Court has held that a

state need not give full faith and effect to judgments of a sister

state in a number of instances, including these “for conviction

of crime or for penalties,” and judgments that are violative of

“a local policy against allowing to foreign corporations the use

of local courts in settling foreign disputes,” that a judgment

establishing the right of an illegitimate or adopted child to in-

herit from his putative parent “does not establish his right to

inherit land in another state,” that litigation in another state

with respect to the proper construction of a will or to appor-

tion the rights of the parties a divorce decree will not “be con-

clusive with respect to land outside the state,” because of

“(t)he interest of a state in controlling all the legal incidents of

real property located within its boundaries is deemed so com-

plete and so vital to the exercise of its sovereign powers of

government within its own territory as to exclude any control

over them by the statutes or judgments of other states.” Addi-

tionally, one state by its judgment may not foreclose “the

power of a state to pass judgment upon the sanity of its own

citizens” or forbid marriage of one or both parties to a divorce

in another state.

“Whatever may be said of the local interest which was

deemed controlling in those cases in which this Court has

denied to a state judgment the same force and effect out-

side the state as is given to it at home, it would not seem

open to serious question that every state has an interest in

securing the maintenance and support of minor children

residing within its own territory so complete and so vital

to the performance of its functions as a government, that

no other state could set limits upon it ...

.. 't is not for us to say that a state is not free, within con-

stitutional limitations, to regard that interest as fully as

important and as completely within the realm of state

power as the legal incidents of land located within its

12

_

boundaries, or of a marriage relationship, wherever

entered into but of which it is the domicile, or its power

to pass upon the sanity of its own residents, notwithstand-

ing the earlier pronouncements of the courts of other

states.” Yarborough, supra, Déssenting Opinion of Mr.

Justice Stone.

Also, this Honorable Court has consistently approved a

modification of the full preclusive effect of foreign custody

awards. New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67

S. Ct. 903, 91 L. Ed. 1133 (1947), May v. Anderson, 345 U.S.

528, 73 S. Ct. 840, 97 L. Ed. 1221 (1953), Kovacs v. Brewer,

356 U.S. 604, 78 S. Ct. 963, 2 L. Ed. 2d 1008 (1958); Ford v.

Ford, 371 U.S. 187, 83 S. Ct. 273, 9 L. Ed. 2d 240 (1962).

The Full Faith and Credit Clause “does not command that

the obligations attached to a status because once appropriately

imposed by one state shall be forever placed beyond the con-

trol of every other state, without regard to the interest in it and

the power of control which the other may later acquire.” Mr.

Justice Stone, dissenting in Yarborough.

Conflict of Laws, Second, Section 103 adopts this view:

“A judgment rendered in one State of the United States

need n_ t be recognized or enforced in a sister State if such

recognition or enforcement is not required by the na-

tional policy of full faith and credit because it would in-

volve an improper interference with important interests

of the sister State.”

The Reporter’s Note reveals that the rule is based primarily

upon the views expressed by Mr. Justice Stone in his dissenting

opinion in Yarborough, in his majority opinions in Milwaukee

County v. M. E. White Co., 296 U.S. 268 (1935) and

Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943), the

concurring opinion of Mr. Justice Rutledge in New York ex rel.

Halvey v. Halvey, 330 U.S. 610 (1947) and the concurring

opinion of Mr. Justice Frankfurter in May v. Anderson, 345

U.S. 528 (1953).

Additionally, a state with a reasonable interest in a con-

troversy may disregard an earlier judgment so long as what it

a re! Ne ae em ee

13

seeks to do is not irreconcilable with what was decided in the

first case. Magnolia Petroleum Company v. Hunt, 320 U.S.

430 (1943), Justice Douglas dissenting at p. 449, and Industrial

Commission of Wisconsin v. McCarter, 330 U.S. 622 (1947).

The mandate of full faith and credit will on occasion give

way before the paramount interests of an individual state.

Yarborough v. Yarborough, supra, Justice Stone dissenting at

290 U.S. 214-215, Williams v. North Carolina, 325 U.S. 226,

320 (1945), Esten v. Esten, 334 U.S. 555 (1948), and Vander-

bilt v. Vanderbilt, 354 U.S. 416 (1957).

See, also, Reese and Johnson, “The Scope of Full Faith and

Credit to Judgments,” 49 Columbia Law Review 153 (1949).

Louisiana has a strong public policy in favor of alimony. See

Holliday v. Holliday, (La. Sup. Ct. 1978) 358 So. 2d 618,

holding that although the parties to an antenuptial agreement

had the requisite capacity to enter into such an agreement,

that a waiver of right to alimony in the event of a judicial

separation from bed and board “is null and void as against

public policy.” (at p. 619) A similar strong public policy exists

with regard to support of children, prohibiting the waiver of

this societal obligation, Walder vs. Walder, (La. 1925), 159

La. 231, 105 So. 300. To permit Louisiana to enforce its public

policy as between two of its citizens does not interfere with

any interest that Arkansas had or has, as tat state has no in-

terest of any nature whatsoever in the regulation and enforce-

ment of these obligations as betwven two Louisiana citizens.

Nor would it require the respondent to relitigate any issue

already decided between the parties, as neither alimony nor

child support was requested nor adjudicated in the Arkansas

divorce proceedings. The principle of Res Judicata is founded

on considerations of judicial economy, protection against pro-

tracted and endless litigation, and certainty and finality of

judicial decrees. To permit Louisiana to adjudicate the sup-

port obligations (as between each other and with respect to

their children) of two of its citizens in this case does no violence

to the considerations underlying the principle of res judicata.

14

Undoubtedly, Arkansas has, within constitutional limita-

tions, the undisputed right to determine, as between its own

citizens, the consequences of a divorce, i.e., the right to

remarry, the custody of the children of the marriage, the

distribution of marital property, and the right to or lack of

right to alimony and child support. But it does not have the

right to impose these reflections of its public policy on the par-

ties for the balance of their lifetime, after the parties have

become citizens of other states. It may prohibit the remarriage

of its citizens, as long as they remain its citizens. But it cannot

impose its public policy on another state which permits remar-

riage. A state may properly decide that its public policy dic-

tates that divorced persons should owe no duty of support to

former spouses under any conditions, i.e., Texas. But that

state may not enforce that public policy on another state after

the parties have become citizens of the latter state which

recognizes such a duty of support, i.e., Louisiana. Arkansas

may properly decide, as between its own citizens, that it will

refuse to consider support obligations not urged in the divorce

proceedings. But it cannot impose this policy in Louisiana

when those support obligations are properly urged in post-

divorce proceedings between two Louisiana citizens. In

Restatement language, such a result “is not required by the na-

tional policy of full faith and credit because it would involve

an improper interference with important interests of the sister

State,” Louisiana.

Louisiana has an important and legitimate interest in

regulating the support obligations of its citizens. The regula-

tion of those obligations may not “be forever placed beyond

the control” (Yarborough, Justice Stone dissenting) of Loui-

siana because of an Arkansas procedural rule that requires the

assertion of post-divorce support obligations in the divorce

proceedings.

To permit Louisiana to adjudicate the support obligation

between two of its citizens in the case at bar does no violence

to “the national policy of full faith and credit,” does not in-

terfere with any legitimate interest that Arkansas has in the

15

matter, does not require the reopening and relitigation of a

foreclosed issue, and does not detract from considerations of

judicial economy and certainty of judicial decrees; but would

allow Louisiana to protect and enforce its legitimate and im-

portant interest in the suppcrt obligations of its citizens. To

permit Louisiana to proceed would constitute a proper balan-

cing of the considerations of “the national policy of full faith

and credit” and the “important interest of a sister State.”

IMPORTANCE OF ISSUE

The issue presented in the Petition for Certiorari does not

arise out of an isolated dispute between the parties. The large

increase in divorce and the mobility of society have multiplied

the issues concerning the consequences in sister states of a

divorce decree. Varying support policies are evident in the

rendering states: alimony may not be modified, may not be

modified upwards, post-divorce alimony may not be awarded,

alimony may be modified upon a showing of changed cir-

cumstances, and alimony may not be awarded except in the

original divorce decree, among others. See Foster and Freed,

“Modification, Recognition and Enforcement of Foreign

Alimony Orders,” Vol. 11, California Western Law Review

280. Each rule represents the internal public policy of a state.

The extent to which that public policy is binding on a sister

state when the parties are no longer citizens of the rendering

state is the issue in this petition.

REASONS RELIED ON FOR THE

ALLOWANCE OF THE WRIT

1. This case presents squarely the issue of the balance

of the national policy of full faith and credit and the

right of a state’s legitimate and important interest in

enforcing support obligations between two of its

citizens.

16

2. The decision of the Louisiana Supreme Court sought

to be reviewed, Brown v. Brown, La. 387 So. 2d 565

is in conflict with the decision of the Nevada

Supreme Court in Clark v. Clark (Nevada Sup. Ct.

1964) 389 P. 2d 69, which held that it was not

barred under the Full Faith and Credit clause from

considering a husband’s counterclaim for a divorce

by a Florida res judicata rule barring relitigation of

all issues which “might have been litigated.” Nevada

held that “The constitutional requirement is fully

met when we recognize the Florida judgment as it

stands — a final determination that the husband

and wife may live separately, with support provid-

ed, and resting upon the conclusion that the

husband had been guilty of cruelty to his wife. Ac-

cordingly, in deciding the preclusive effect to be

given this final judgment in the Florida court, we

are not to be governed by the Florida law of res

judicata, or estoppel, or by the effect of those doc-

trines upon the husband’s ability to procure a

divorce in that state, had he litigated his case there.

It seems to us that we are at liberty to follow Nevada

law as to the scope of the doctrine of res judicata and

estoppel, particularly in cases dealing with status

where important state interests and public policies

are involved.”

3. The Louisiana Supreme Court has decided an im-

portant question of federal constitutional law which

has not been, but should be settled by this

Honorable Court.

CONCLUSION

The petition for a writ of certiorari should be granted.

LOVE, RIGBY, DEHAN,

LOVE & McDANIEL

600 Johnson Building - P. O. Box 1835

Shreveport, Louisiana 71166

BY

KENNETH RIGBY - ATTORNEYS

FOR KAREN TOWNSEND BROWN

APPENDIX

a. Copy of Opinion and Dissenting Opinion of Supreme

Court of State of Louisiana sought to be reviewed, 387 So.

2d 565.

b. Copy of Order of Supreme Court of Louisiana denying

Rehearing.

c. Copy of Opinion, Court of Appeals, Second Circuit, State

of Louisiana in Brown v. Brown, 377 So. 2d 438.

d. Copy of Opinion, Fourth Judicial District Court,

Ouachita Parish, Louisiana, in Brown v. Brown.

Supreme Court of Louisiana

No. 66,429

KAREN TOWNSEND BROWN

V.

DONALD K. BROWN

ON WRIT OF REVIEW

TO THE

SECOND CIRCUIT COURT OF APPEAL

PARISH OF OUACHITA

ELLIS, JUSTICE AD HOC

Plaintiff Karen Townsend Brown was divorced from her

husband, Donald R. Brown, by judgment of the Chancery

Court of Union County, Arkansas, on June 10, 1977. In that

suit she prayed for and was granted the divorce, and custody

A-2

of four minor children. Alimony was not prayed for and the —

judgment was silent on that point.

This suit was filed in August, 1978, asking that the Arkansas

judgment be given full faith and credit; that she be awarded

custody of the children; and that she be awarded alimony and

child support. Defendant did not contest his obligation to pay

child support, but filed a peremptory exception of res judicata

as to the demand for permanent alimony. The exception was

sustained in the trial court, and that judgment affirmed in the

Court of Appeal. Brown v. Brown, 377 So. 2d 438 (La. App.

2nd Cir. 1979). We granted certiorari to review the propriety

of the judgment.

The common law rule of res judicata is much broader than

the civilian rule which applies in Louisiana. Arkansas applies

the broader common law rule. In Miller v. Miller, 190 S.W.

2d 991 (1945) the Arkansas Supreme Court said:

“In the case of Nelson v. Nelson, 146 Ark. 362, 225 S.W.

619, 620, this court said:

‘It follows also thai the allowance of attorney’s fees

must be reversed.

At Section 49 of the article on Alimony in 1 R.C.L.,

at page 902, the law is announced as follows: ‘As a

general rule, an action for alimony cannot be

brought after the rendition of a judgment for

divorce, even though the decree is silent on the mat-

ter; for, as the question of alimony might, and

should, have been litigated therein, such decree

operates as res judicata as to the question of

alimony.’ See, also, 7 R.C.L., p. 792.

‘The original decree undertakes to settle and did ad-

judicate, the marital rights of the parties. The

divorce granted was an absolute one, and terminates

the husband’s liability for his wife’s obligations. He

would thereafter be no more liable for her lawyer’s

fees than he would be for any other contractual

obligation which she had incurred.’

4

“In American and English Annotated Cases, vol. 40

(Ann. Cas. 1916B), page 875, there is an extensive note or

annotation on “Doctrine of Res Judicata as Applicable to

Divorce Proceedings’; and on page 898 of that annota-

tion, the rule is stated:

‘All questions concerning alimony which are or

ought to be determined in a divorce proceeding are

res judicata in a subsequent proceeding in the same

jurisdiction.’

“See also 17 Am Juris. 442, 482, 484.

“There was no language in the divorce decree of

September 25, 1944, reserving the question of alimony for

subsequent disposition. When Mrs. Dessie Miller failed,

either to have monthly payments of alimony provided in

the decree of divorce, or to have the question of alimony

reserved for further consideration, she allowed the decree

to become res judicata on the question of alimony; ...”

See also Ellis v. Ellis, 249 S.W. 2d 302 (1952); Taylor v.

Taylor, 153 Ark. 266, 240 S.W. 6 (1922).

We think it clear that plaintiff would be precluded from

recovering alimony in Arkansas, since she neither asked for it

in the Arkansas suit nor reserved her right to do so in the

future.

Plaintiff, however, claims that Louisiana is not bound to

apply the Arkansas rule of res judicata in its own courts. It is,

of course, settled that this State will give full faith and credit

to divorce decrees of other states which are unassailable in

those states. U.S. Constitution, Art. 4, Sec. 1; Boudreaux v.

Welch, 249 La. 983, 192 So. 2d 356 (1966). In Golson v.

Golson, 351 So. 2d 100 (La. 1977), this Court said:

“Article 4, Section 1 of the United States Constitution

provides:

‘Full Faith and Credit shall be given in each State to

the public Acts, Records, and Judicial Proceedings

of every other State. And the Congress may by

general Laws prescribe the Manner in which such

Acts, Records and Proceedings shall be proved, and

the Effect thereof.’

following statute:

‘The Acts of the legislature of any State, Territory,

or Possession of the United States, or copies thereof,

shall be authenticated by affixing the seal of such

State, Territory, or Possession thereto.

‘The records and judicial proceedings of any court of

any such State, Territory or Possession or copies

thereof, shall be proved or admitted in other courts

within the United States and its Territories and

Possessions by the attestation of the clerk and seal of

the court annexed, if a seal exists, together with a

certificate of a judge of the court that the said at-

testation is in proper form.

‘Such Acts, records and judicial proceedings or

copies thereof, so authenticated, shall have the same

full faith and credit in every court within the United

States and its Territories and Possessions as they have

by law or usage in the courts of such State, Territory

or Possession from which they are taken.’ [Emphasis

supplied.] 28 U.S.C. 1738.

“Under the statute, therefore, Louisiana should give the

Tennessee divorce the same effect that Tennessee would

give it. New York v. Halvey, 330 U.S. 610, 67 S. Ct. 903,

91 L. Ed. 1133 (1947); Morris v. Jones, 329 U.S. 545, 67

S. Ct. 451, 91 L. Ed. 488 (1947).”

We therefore hold that the Arkansas judgment is entitled to

full faith and credit, and we must give it the same preclusive

effect that it would have in Arkansas. Plaintiff is precluded by

that judgment from obtaining permanent alimony.

A-4

“Pursuant to this grant of authority, Congress enacted the

For the foregoing reasons, and for the reasons most capably

expressed in the opinion of the Court of Appeal, the judgment

is affirmed, at plaintiffs cost.

Affirmed.

Calogero, Jr. dissents and assigns reasons.

Watson, J. dissents.

Supreme Court of Louisiana

KAREN TOWNSEND BROWN

versus No. 66,429

DONALD R. BROWN

CALOGERO, Justice, dissenting

I am not certain that res judicata bars assertion of a Loui-

siana right to po.t-divorce alimony in this case where both

spouses now live in Louisiana and where the alimony issue was

not litigated in the Arkansas divorce proceeding. This case ap-

pears to fall within the issue left open in Yarborough v. Yar-

borough, 290 U.S. 202, 78 L. Ed. 269 (1933). In Yarborough,

supra, the Supreme Court held that South Carolina was re-

quired to give full faith and credit to a Georgia judgment ter-

minating a father’s obligation to support his daughter upon

payment of a lump sum to a trustee for his daughter. The

daughter in Yarborough was domiciled in South Carolina, but

the father at the time of suit was still a resident of Georgia.

The court noted however, that they did not decide whether

South Carolina would have had the power to require the

father if he were domiciled in South Carolina to make further

provision for the support, maintenance, or education of his

daughter. 290 U.S. at 213.

Justice Stone, dissenting in Yarborough, supra, stated that

full faith and credit “does not command that the obligations

attached to a status because once appropriately imposed by

one state shall be forever placed beyond the control of every

other state, without regard to the interest in it and the power

of control which the other may later acquire.” 290 U.S. at 219.

Justice Stone pointed out that it was universally accepted that

a divorce decree which by its terms or by operation of law for-

bids remarriage could have not effect outside the state which

rendered it. 290 U.S. at 217, 218. |

A-6

In this case we should determine whether Louisiana under

the circumstances presented here has sufficient interest in the

subject matter to award post-divorce alimony notwithstanding

the Arkansas jurisprudential rule that “what might have been”

nleaded is barred by res judicata. See Reese and Johnson, “The

Scope of Full Faith and Credit to Judgments,” 49 Col. L.R.

153 (1949). Because the majority takes a mechanistic approach

to full faith and credit and does not squarely face this issue, {

respectfully dissent.

Supreme Court of Louisiana

NEW ORLEANS 70112

FOR IMMEDIATE NEWS RELEASE

NEWS RELEASE #95

FROM: CLERK OF SUPREME COURT OF LOUISIANA

On the 12th day of September, 1980, the following action was

taken by the Supreme Court of Louisiana in the case listed

below:

WRIT DENIED:

80-K-2094 State v. Wallace Istre (Acadia Parish)

On the 15th day of September, 1980, the following action was

taken by the Supreme Court of Louisiana in the case listed

below:

STAY ORDER GRANTED:

80-K-2116 State v. Kenneth J. Sharp, Jr. (Jefferson Parish)

On the 17th day of September, 1980, the following action was

taken by the Supreme Court of Louisiana in the case listed

below:

A-7

CONTINUATION OF STAY ORDER GRANTED:

66,656 State v. Roger S. Bourgeois (Jefferson Parish)

On the 18th day of September, 1980, the following action was

taken by the Supreme Court of Louisiana in the cases listed

below:

WRIT GRANTED:

80-K-2131 State in the Interest of Chris Aaron (E. Baton

Rouge Parish)

With order.

APPLICATION DENIED:

80-O-2068 In Re: Application of Carole Shelby Carnes

Tucker MARCUS, BLANCHE & WATSON,

J.J., would deny with no reservations.

On the 19th day of September, 1980, the following action was

taken by the Supreme Court of Louisiana in the cases listed

below:

BY CALOGERO, J.:

67,236 C/W State of La. v. Charles Brown, Jr. (Orleans

Parish)

67,738 State of La. v. Vernon Bernard (Orleans

Parish)

(Possession of pentazocine (Talwin)

Accordingly, we hold that the portion of the

statute making it illegal “unknowingly” to

possess a Scheduled IV substance is unconstitu-

tional. The remainder of the statute is valid

and the trial courts’ rulings sustaining the

defendants’ motions to quash are reversed and

the cases remanded to the trial court for further

proceedings in accordance with the views ex-

pressed herein.

REVERSED AND REMANDED.

REHEARING GRANTED:

67,261 State v. Jerry L. Devito (Jefferson Parish)

A-8

REHEARINGS DENIED:

66,429 Karen Townsend Brown v. Donald R. Brown

CALOGERO, WATSON & LEMMON, J. J.,

would grant the rehearing.

66,919 State v. William S. Light

(With Per Curiam)

DENNIS, J., would grant a rehearing

(p. 1 of 1 page)

No. 13,967 Judgment rendered October 31, 1979

Application for rehearing may be filed within

the delay allowed by Art. 2166, LSA-CCP.

COURT OF APPEAL

SECOND CIRCUIT

STATE OF LOUISIANA

KAREN TOWNSEND BROWN Plaintiff-Appellant

V.

DONALD R. BROWN Defendant-Appellee

Appealed From The

Fourth Judicial District Court For The

Parish of Ouachita, Louisiana

Honorable Lemmie O. Hightower, Judge

LOVE, RIGBY, DEHAN, Counsel For

LOVE and McDANIEL Plaintiff-Appellant

By: Kenneth Rigby

ALLEN HOWARD COON Counsel For

Defendant-Appellee

BEFORE: PRICE, HALL and JONES, JJ.

A-9

JONES, J.

The plaintiff (former wife) appeals a judgment sustaining

her former husband’s peremptory exception of res judicata to

her claim for permanent alimony. The exception was based

upon an Arkansas divorce judgment which awarded no

alimony in appellant’s divorce action where none was sought.

We affirm.

The issues are (1) was the judgment res judicata on the issue

of alimony in Arkansas where it was rendered? and (2) if so, is

Louisiana required to give it Full Faith and Credit under the

U.S. Constitution?

Plaintiff-wife obtained a judgment of divorce from defend-

ant in the Chancery Court of Union County, Arkansas in 1977,

Both parties appeared, and defendant was adjudicated as be-

ing at fault. Plaintiff received custody of the four minor

children. The issue of alimony was not raised in the Arkansas

court. Plaintiff now seeks to have the divorce decree recog-

nized in Louisiana and $g obtain child support and alimony in

the amount of $3,000 per month.

The trial court held that plaintiff is barred in Arkansas from

now seeking alimony because of the Arkansas concept of res

judicata and the Full Faith and Credit Clause required Loui-

siana to recognize the Arkansas concept of res judicata.

THE DIVORCE JUDGMENT IS RES

JUDICATA IN THE STATE OF

ARKANSAS AS TO THE ISSUE OF ALIMONY

When plaintiff failed to make a demand for alimony in the

Arkansas court, she was thereafter precluded from asserting a

claim for alimony in Arkansas. The divorce decree had

become res judicata as to the question of alimony once it was

rendered without mention of the issue of alimony. This is the

holding of Miller v. Miller, 209 Ark. 505, 190 S.W. 2d 991,

upon which the trial court based its decision. In this case the

Arkansas Supreme Court stated:

A-10

“When Mrs. Dessie Miller failed, either to have monthly

payments of alimony provided in the decree of divorce, or

to have the question of alimony reserved for further con-

sideration, she allowed the decree to become res judicata

on the question of alimony; ...” Id. at 993

This case does not “stand alone” for this proposition of law (as

plaintiff asserts), and it has never been overruled or modified.

Other cases applying the Miller rule of res judicata to

divorce judgments are Ellis v. Ellis, 220 Ark. 639, 249 S.W. 2d

302; Taylor v. Taylor, 153 Ark. 206, 240 S.W. 6; and Ball v.

Ball, 189 Ark. 975, 76 S.W. 2d 71.

Ellis, supra, involves a similar situation in which the wife

sued only for a divorce and the custody of the children. She

later claimed her ex-husband owed her money. The language

of the Arkansas Supreme Court is pertinent:

“She did not ask for alimony, maintenance or attorney's

fee, being content to ask only for a divorce and the care of

the children. Since she failed to ask for, and obtain the

relief - which she now claims - when the divorce was

granted and when such matter might have been litigated,

we hold that it is now res judicata.” Id. at 303.

The wife in Taylor, supra, obtained a divorce and later sued

for a portion of her husband's property under an Arkansas

statute giving her one-third of his estate. The Arkansas

Supreme Court held:

“ _.the lawmakers ... intended ... to give the wife an

estate in the nature of dower when a divorce was granted

in her favor. If she did not ask and obtain the relief when

the decree of divorce was granted to her the matter

became res adjudicata.” Id. at 8.

In Ball, supra, the husband sued the wife for a divorce on

the grounds of cruel treatment. She answered, contending a

judgment of a Missouri court in which the husband was denied

a divorce on the ground of desertion precluded the husband

from seeking the divorce in Arkansas. The Arkansas Supreme

Court held that since the facts of cruelty existed at the time of

the suit ir. Missouri the issue could have been litigated then.

A-1]

The cruelty could not later be considered by the Arkansas

court because the issue was res judicata in Missouri. The

Arkansas court pointed out that Missouri law was the same as

Arkansas law in that all issues that might have been raised and

litigated were cornpletely barred by the final decree as if they

had been directly adjudicated and included in the Missouri

judgment. The husband was not entitled to a divorce on the

grounds of cruelty which existed at the time he sought the

Missouri divorce on the grounds of desertion.

Had plaintiff sued for alimony in Arkansas after obtaining

the Arkansas divorce, she would have been barred by res

judicata from asserting the alimony claim.

The Arkansas rule on the res judicata effect of a divorce

decree upon the alimony issue is not as isolated or unusual as

plaintiff claims. In Leflar, Conflicts of Laws (1977, 3rd Ed.)

at page 465 we find the following statement:

“If there was personal jurisdiction over the husband in a

wife’s divorce action, or personal jurisdiction over the

wife in the husband’s divorce action, so that the support

issue could then be tried, the matter is res judicata and

cannot thereafter be raised again, whether or not

alimony was asked for at the time.”

Citing Kresteff v. Kresteff, 79 Ill. App. 2d 170, 223 N. E.

2d 720 (1967); Jackson v. Jackson, 200 A. 2d 380 (D. C.

App. 1964); Osborne v. Osborne, 215 Va. 205, 207 S. E.

2d 875 (1974); Bates v. Bodie, 245 U.S. 520, 38S. Ct. 182

(1918); Lynn v. Lynn, 302 N. Y. 193, 97 N. E. 2d 748

(1951); Wood v. Wood, 174 Ohio St. 318, 189 N. E. 24 54

(1963).

We have reviewed the cases cited by Leflar and find they

fully support the quoted statement.

Our review of the cases cited by appellant to support her

contention that the issue of alimony is not res judicata reveals

that the cases are factually distinguishable and are inap-

plicable to the issue here presented.

A-12

THE FULL FAITH AND CREDIT CLAUSE REQUIRES

EACH STATE TO GIVE EFFECT TO THE RES

JUDICATA EFFECT OF THE JUDGMENTS

OF OTHER STATES

The Full Faith and Credit Clause, Article IV, §1 of the Con-

stitution of the United States provides in part:

“Full Faith and Credit shall be given in each state to the

public Acts, Records, and Judicial Proceedings of every

other state.”

Full Faith and Credit mandates that the court of each state

give to the judgments of other states the same conclusive effect

between the parties as is given such judgments in the states in

which they were rendered. Magnolia Petroleum Co. v. Hunt,

320 U.S. 430, 64 S. Ct. 208, 88 L. Ed. 149 (1943); Semler v.

Psychiatric Institute of Washington, D.C., 575 F. 2d 922 (D.

C. Cir. 1978). The Louisiana court must give the Arkansas

divorce decree the same res judicata effect between the

plaintiff-wife and defendant-husband as would be given in an

Arkansas court. As correctly stated in Semler, supra:

“A judgment for the plaintiff in a court of a sister state

merges the original cause of action and precludes a new

suit thereon to the same extent as this judgment would

preclude another suit in the same state. Thus under the

Full Faith and Credit Clause, the preclusive effect of a

judgment must be determined by the law of the state

where it was rendered.” (emphasis theirs) Id at 927.

See also Holm v. Shilensky, 388 F. 2d 54 (2d Cir. 1968) and the

Fifth Circuit Gov. Personnel Mut. Life Ins. v. Kaye, 584 F. 2d

738 (1978) and Restatement Second, Conflicts of Laws, §95

(1971).

To determine the preclusive effect of the Arkansas divorce

decree upon the issue of alimony, one must look to the law of

Arkansas, the rendering state. As discussed above, the Arkan-

sas law holds that once the divorce decree is granted, the ques-

tion of alimony is res judicata, even though alimony was not

sought and the issue was not litigated. Plaintiff cannot return

to the Arkansas forum and raise the issue of alimony. Arkansas

A-13

precludes her from ever raising this issue again. Because of

Full Faith and Credit, Louisiana must give the same res

judicata effect to the Arkansas decree as Arkansas would.

Since plaintiffs claim for alimony would be barred in Arkan-

sas, it cannot be now demanded in Louisiana. Defendant's

peremptory exception of res judicata was correctly sustained.

Plaintiff alternatively contends that should we hold the

Arkansas decree to be res judicata as to the issue of alimony,

then res judicata is a procedural rule and thus need not be ap-

plied by Louisiana. Our review of the jurisprudence shows

that the federal courts in deciding diversity actions consider res

judicata to be a substantive issue. Priest v. American Smelting

& Refining Co., 409 F. 2d 1229 (9th Cir. 1969); Breeland v.

Security Insurance Co. of New Haven, 421 F. 2d 918 (5th Cir.

1969). The federal jurisprudence requires the res judicata ef-

fects of foreign judgments to be given Full Faith and Credit.

Magnolia, supra; Semler, supra; Holm, supra; and Gov. Per-

sonnel, supra. Plaintiff's contention is without merit.

Plaintiff also argues that should the Arkansas law preclude

plaintiff from seeking alimony there, Louisiana should not be

required to apply the Arkansas rule but should apply our res

judicata provision which would permit a wife free of fault to

seek alimony at a later time even though she did not seek

alimony in the divorce action. LSA-C.C. Art. 2286'. The deci-

sion as to whether the Arkansas policy is good or bad and

whether we desire to follow it is one we are not empowered to

make. It is of the essence of Full Faith and Credit that one

state may not inquire into the rightness or wrongness of

another state’s policy when enforcing the judgment.

Magnolia, supra; Williams v. North Carolina, 317 U.S. 287,

87 L. Ed. 279, 63 S. Ct. 207; Fauntleroy v. Lum, 210 U.S.

\LSA-C.C. Art. 2286 - The authority of the thing adjudged takes place only

with respect to what was the object of the judgment. The thing demanded

must be the same; the demand must be found on the same cause of action; the

demand must be between the same parties, and formed by them against each

other in the same quality.

230, 52 L. Ed. 1039, 28 S. Ct. 641; Yarborough v. Yar-

borough, 290 U.S. 202, 78 L. Ed. 269, 54S. Ct. 181. In each

of these cases the state to which the judgment was brought had

an interest in the subject matter of the suit and a public policy

contrary to that of the state in which the judgment was ob-

tained. However, under Full Faith and Credit the interest of

the state in which the judgment was obtained and was res

judicata was held to override any contrary policy of the forum

to which the judgment was taken. Virginia recognized it was

required to deny alimony under its law to a wife who had

received no alimony under Texas law in a Texas judgment of

divorce in the decision of Osborne v. Osborne, 215 Va. 205,

207 S. E. 2d 875 (1974):

“Under the United States Constitution and federal and

Virginia statutes Mrs. Osborne was barred from

relitigating in Virginia matters properly adjudicated by

the Texas court. The constitutional mandate, as im-

plemented by Congress, requires every state to give a

foreign judgment at least the res judicata effect which the

judgment would be accorded in the state which entered

it. Durfee v. Duke, 375 U.S. 106, 109, 84S. Ct. 242, 11 L.

Ed. 2d 186 (1963). In Barber v. Barber, 323 U.S. 77, 65S.

Ct. 137, 89 L. Ed. 82 (1944), the Supreme Court held

that Tennessee was required to give effect to a North

Carolina judgment, not subject to modification in North

Carolina, for arrearages in alimony payments. See

McKeel v. McKeel, 185 Va. 108, 112-113, 37 S. E. 2d

746, 748-749 (1946). Subject to rare exceptions, the full

faith and credit rule applies even though the sister state’s

judgment reflects policies hostile to those of the forum

state. Estin v. Estin, 334 U.S. 541, 546, 68 S. Ct. 1213, 92

L. Ed. 1561 (1948); Magnolia Petroleum Co. v. Hunt,

320 U.S. 430, 438, 64S. Ct. 208, 88 L. Ed. 149 (1943);

Williams v. State of North Carolina, 317 U.S. 287,

294-295, 63S. Ct. 207, 87 L. Ed. 279 (1942).” Id. at 879.

Plaintiffs policy argument is thus without merit.

Judgment AFFIRMED at appellant's cost.

A-15

STATE OF LOUISIANA ‘ PARISH OF OUACHITA

FOURTH DISTRICT COURT

KAREN TOWNSEND BROWN

versus No. 115,094

DONALD R. BROWN

FILED:

DEPUTY CLERK OF COURT

REASONS FOR JUDGMENT

ON EXCEPTION OF RES JUDICATA

To that portion of plaintiffs petition seeking permanent

alimony for her support, the defendant, Donald R. Brown,

has filed an exception of res judicata based on a judgment of

divorce his former wife obtained in Arkansas.

The pleadings of record make clear the factual posture of

the matter. In essence, we are called to decide the effect of the

Arkansas decree upon Mrs. Brown’s right to alimony.

Louisiana courts, pursuant to constitutional and statutory

mandate, should give the same effect to che Arkansas divorce

that the courts of Arkansas would. U.S. Const. Art. 4, §1; 28

U.S.C. 1738; Golson v. Golson, 351 So. 2d 100 (La., 1977).

It is clear, and all parties concede, that, under the Arkansas

Supreme Court decision in Miller v. Miller, 209 Ark. 505, 190

S. W. 2d 991 (1945), the divorce judgment is res judicata in

that state on the question of alimony and, such judgment be-

ing silent on the matter, Mrs. Brown could not now successful-

ly claim alimony before the courts there.

Inasmuch as the Arkansas decree would have such effect in

Arkansas, a forum to which both parties submitted their

marital rights and responsibilities for adjudication, it should,

A-16

and does, have the same effect in Louisiana with respect to the

right to alimony.

We are not in accord with the contention of counsel for

plaintiff that the doctrine of res judicata is a rule of procedural

law, not of substantive law, and, thus, Louisiana courts are

not bound to give full faith and credit to the res judicata effect

of the Arkansas decree. Even if, arguendo, we consider the

doctrine of res judicata to be merely procedural, it never-

theless may create a substantive right. In our opinion, such a

right exists here. The Arkansas decree establishes and ad-

judicates the marital rights and responsibilities of the parties.

By not requiring alimony, it likewise adjudicated that ques-

tion. Both parties acquired certain rights of substance

through, and from, that judgment. Such rights cannot now be

relitigated in another jurisdiction.

Exception sustained.

LEMMIE O. HIGHTOWER, JUDGE

CERTIFICATE OF SERVICE

I CERTIFY that three copies of the above and foregoing

Petition for a Writ of Certiorari have been served upon

Donald R. Brown by depositing three copies thereof in the

United States mail, with first-class postage pre-paid, addressed

to his counsel of record, Allen Howard Coon, at his Post Office

address, 118 South Grand Str Monroe, Louisiana 71201,

on this the __/.) _ day of yo , 1980.

a a,

OF COUNSEL

ge