Appendix — Baehr v. United States

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APPENDIX A ae

Constitutional Provisions and Statute Involved

» Constitution, Article I V, Section 1:

OF ull Faith and-Credit shall be gives. in each State

to the public Acts, Records, and Judicial Proceedings +

_ of every other State. And the Congress may by gen- ;

ee | eral Laws prescribe the Manner in. which such Acfs, — «

| -Reeords and Proceedings shall be ‘proved, and the Ef-

‘ feet thereof. ny.

QP

“Constitution, 14th Amer dment, Seetion 1:

-“*All persons born or naturalized in the United

7. _ States, and subject to the furisdiction thereof, are eiti-

} _ zens of the United States and of the State wherein

- ‘they feside. No State shali make or enforce any law

‘which shall abridge the privileges or immunities of

citizens of the United States; nor shall any, State, de-

_. prive any person of life, liberty, or property, without

~~ ~due process of law; nor deny to any person within its —

saa zragn the equal protection of the lafs.’’

+

28 SO. $1738: ra re mage?

“The Acts of the legislature of any State, Ters ory,

or Possession of the U nited States, or copies thereof,

shall ‘e 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

7 _ within the United States and its Territories and Pos-

sessions by the attestation of the clerk ‘and seal of the

- court annexed, if a seal exists,-together with a certifi-

: cate of a judge of the court that the said attestation is

in proper form.

”

Za ik

of “Such Act-, records and judici: i proceedings or.

Fa copies thereof, so authenticated, shall have the same

‘. full faith and credit in every court within the United -

/ OA hea tates and its Territories @d Possessions as they

ae ‘ ve by law or usage-in the courts of such State, Ter- -

, ritory or Possession from which gpey are taken.”

.

APPENDIX B .

[Filed March 27, 1962. €. R. Davenport, Clerk of the Supreme Court.

" By Doreas P. ‘Witeos, Deputy Clerk}

IN THE SUPREME COURT OF THE STATE OF NEVADA

@ , No. 4440

Saran P. Cosy, A ppellaM,

v. $3

, 7 Bexsamin Cousy, Respondent.

Tk eee ' Appeal from summary judgment of the Eighth Judicial —__4

District Court, Clark County ; David Zenoff, Judge. Judg- . -

ment reversed. P

“<a rars EN TE -Joxes, Wrexrn & Joxes and =

L. O. Hawxrss, of counsel, of. Las ©

Vegas for Appellant.

Rovert E. Jones and as

Morse & Graves, of Las Vegas, .

for Respondent. °

‘e = ae the in TuomPsox, J.: ae :

rar | _ . Sarda P. Colby, appellant, and Benjamin Colby, sats

ent will be hereafter referred to as ‘‘Sarah’’ and **Benja-

min.”’ .

”

- 'T6 understand the issues presented for our determina-

tion, mention must first be made of the history of litigation’ *

; : : Pa . - oa

between the parties regarding their marital status. On

June 30, 1955, Sarah was granted a divoree from Benjamin

by the Eighth Judicial District’ Court of Nevada. Ben-

jamin did not appear therein. He was served with process.

_in Washington, D. C. by ‘‘personal service outside tlie

state,’’ in accordance with NRCP 4(e¢) (2). His default was

duly entered. On November 6," 1957, Benjamin was granted

a divorcee a mensa et thoro (separation from bed and board)

from Sarah, by the Cirenit Court of’ Maryland. In that:

action, Sarah appeared personally, pleading, among other

matters, the prior Nevada default decree as a defense. In

granting Benjamin relief, the Maryland court declared the

Nevada deeree to be ‘‘null, void and of no effect in law or.

‘in equity.’’ Sarah appealed, and the Maryland Court of

Appeals on May 20, 1958-affirmed the decree of the Circuit

_ Court. Colby v. Colby, 217 Md. 35, 141 A. 2d 506.

Finding Sarah in} Florida, Benjamin then brought suit

in the Circuit Court of Florida, seeking declaratory relief

as to his marital status. Sarah moved to dismiss» the com-

_ plaint therein, which motion was granted. Benjamin. ap- -

pealed. On May 20, 1960, the Florida ‘District Court of

ao Wail _-_- Appeal affirmed the, ruling of the lower’ court. Colby vi _ athena ntti

Colby, (Fla. 1960), 120 So. 2d 797.. Among other things it

held that the declaratory judgment procedure was not avail-

able to adjudicate rights: of parties who had. aely

- obtained a determination of those rights ; that no justiciable

controversy existed between them.

On February 2, 1960, after the ruling of the Florida | Cir-'

cuit Court, but before determination by the Florida appel-

late court, the present action was commenced by Benjamin

in the Eighth Judicial District Court of Nevada. «The com-

plaint is labeled a *‘complaint to vacate and set aside a

decree of divoree.’’ The relief requested is that:the Nevada

default decree of June 30, 1955 be vacated and set aside.

_ The predicate for his complaint is that the Maryland de-

--eree of, November 6, 198i, , Sranting him a divorce a mensa |

Bas

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-.:

et thoro, and ie ap void the prior Nevada default de-

creé, was entered by a court of competent jurisdiction, with

both parties before ‘it, and must be given full faith and

credit by the courts of Nevada. -Sarah moved tgglismiss —

the complaint, asserting that it failed fo state a claim upon. |

which relief could be granted. That motion was denied by.

thé court bélow, whereupon Sarah answered, denying the .

: material averments of the complaint, Issue being joined,

Benjamin then moved for summary judgment, pursuant to.

NRCP 56. The lower court granted summary judgment.

- It found that there were no genuine issues of fact to be

litigated; that the Maryland” decree was enititleg to full.

faith, and credit by the courts of Nevada; that Menjamin |

was entitled to have his marital status in Nev clarified

and determined, and had brought 4 proper pr ing for

such relief, Accordingly, it ordered that the Né default:

decree granted Sarah on June 30, 1955 “‘be and the same

is hereby declared null and void, vacated, set aside and

held for naught, having no force or tffect in law or equity.”’

The present appeal i is‘ fromthe summary —— thud

_ entered.

__. Five errors are assigned.’ We believe that, all of them ,

_ are necessarily embraced withinhe single i issue; did Ben-

jamin state a. claim for relief? In our view, no claim for

relief was stated, nor was it possible to do‘so under the

circumstances here presented. In reaching this conclusion,

<=» We are compelled to resolve the following questions: First,

“is this action the ‘*independegt action * * * to set aside a

—_

‘It is claimed that the Leenis'coutt erred in holding:

(a) that’the eomplajnt stated a claim for relief ; i

(b) that no factual issues remained; _ °

‘(e) that the alleged fraud was the basis fer an independent :

action to set aside a Nevada decree ;

% (a that the fdll faith and credit clause applies to this case;

‘(e)-that a justiciable controversy was 3 ses zuge for cherninn-

tion. .

<*

a . : : ; i.) .

i : da. «= ‘s

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jn ent for fraud upon the court,” contemplated by”

NR 'P 60(b)1 Second, does the Uniform Declaratory Judg- |

ments Act, NRS 40,010-30.160, provide a procedure by -

which Benjamin could obtain a declaration of his marjtal,

status in Nevada undet _ the. circumstances presentedt,

' Thifd, was this action othigtwise properly’ instituted, and

_acltim for relief stated because ef the full faith and credit -

clause of the United States Constitution? We turn to diy-

cuss these questions.

1. This action is not authorized by NRCP 60 (b). The

* present independent action was,commenced almost five

years after entry of the Nevada default decree. It sought

to set aside such deeree. The lower court granted the re-

_ quested relief. This court has, for many years, recognized

that a decree of divorcee may be annulled by an independent |

proceeding for thaf purpose upon proof of extrinsic fraud.

Confer v. District Court, 49 Nev. 18, 234 2: 688; Chamblin

v. Chamblin, 55, Nev. 146, 27 P. 2d 1061; Calvert-v. Calvert,

_ 61 Nev.-168, 171, 122 P. 2d 426, 427; Lanes vy. District Conrt,

62 Nev. 78, 140 P. 2d 953; Mazour v. Mazour, 64 Nev. 245,

180 P. 24-103; Murphy v. Mui phy, 65-Nev. 264, 271, 193 P.

2d 850, 854? Villalon v. Bowen, 70 Nev. 456, 273 P. 2d 409.

‘In Murphysv. Murphy, supra, this court said: ‘Extrinsic

fraud has been held to exist when the unsuccessful party. is

kept away from the court by a false promise of compromise, :

or.such conduct as prevents a real trial upon the issues in-

volved 6r any other act or omission which procures ‘the: -

. absence of the unsuccessful party at the trial. ‘Further, it -

consists of fraud by the other-party to’ the suit, which pre-’

vents the losing party either from knowing about his rights

or defenses, ‘or from having a fair opportunity of present-

ing them upon the trial.” Conversely, in Calvert v. Calvert,

supra, wé deseribed-intrinsie fraud in ‘the following lan-

guage :.‘*A‘ distinguishing feature appearing in the cases

as to when fraud will justify the, vacation of a decree is

whether or not the wife has had thé opportunity of consult-

_ ing counsel of her own choosing, and the opportunity af-

.

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Ca

; F A Pe Sate :

“forded to present’ the matters complained of to inde-

pendent counsel and to the court, so that protection could:

“be afforded. Such an opportunity stamps the fraud as,

intrinsic.’’ (Emphasis suppliéd.) |

~The ‘‘fraud’? involved in the instant ease is simply. the

finding’ by the Maryiand ceurt in a later action, that Sarah,

- did not possess the required bona fide intent as to domicil

when she testified before thy Névada court, and thereby

committed a ‘‘fraud’’ upon it. Nothing appears from the

_ record before us tending to establish that ‘Benjamin. was

prevented by Sarah’s ‘conduct from a fair opportunity to

assert his rights in or present his defenses to the Nevada

action. It is apparent that voluntarily éleeted‘to refrain

from entering an’appearance therein. Cle arly the “fraad’’

here contended for is intrinsic ;it is nof extrinsic.

Insofar as the question of fraud is concerned, we do not

find any solid basis for distinction between the case at bar

and the-cases of Confer’ v. District Court, supra, and

Chamblin v. Chamblin, supra. In,Confer vy. District Court,

supra, the husband obtained a Nevada divoree. The wife

appeared in the action by answer and- cross complaint.

After trial, the court entered a decree for the husband. Al-

most two years later the former wife commenced an inde-

pendent suit, ‘seeking to set aside the divorce. decree, claim-

ing that the eourt was without jurisdiction because the

plaintiff’s testimony therein was. false in that he never

intended to make Nevada his bona fide home and demicil.

This court found that the alleged fraud was not extrinsic

in nature, and dismissed the proceeding. In Chamblin v.

-Chambin, supra,-a former wite brought, an independent ac-

tion.to set aside her former husband’s decree, claiming

that it was obtained on perjured testimony. This court

held that the complainant had been afforded every oppor-

: ‘tunity to appear.and defend-the prior suit; that the claimed

fraud was not extrinsic in nature, and that a’cause of action

was not, therefore, asserted. We hold that the complaint

”

io

herein fails to state a Claim: tor relief based upon extrinsic’

- fraud.

Notwithstanding, Benjamin ‘urges that an independe nt

! ation tu set aside the prior default decree is proper mnder

NRCP 60 (b) beeanse such:prior decree is void..-His ‘argu-

ment in this regard. is that the Maryland decree had the

éffect of rendering the prior Nevada decree void. We find

nov merit in this argument. At is true that in La Potin v.

La, Potin, 75 Nev. 264, 839 P. 2d 123, we held that an‘ ‘inde-

_pendent action was proper, under tle mentioned rale, te set

aside a prior décree, where the record established that the

defendant in the prior ‘action was never served” with

process ; the court W az, in fact, without juris diction, and the

decree was. void. See also: Perry v. Seventh Judicial Dis

trict Court. 42 Nev: 284, 174 P. 1058. However, the instant

case is totally different: The record before us shows that

' the Nevada court had jurisdiction to’enter the decree. Pro

éedural due process was accorded the defendant ‘therein.

The decree was riot.void on the face of the record and, for

the reasons heretofore mentioned, extrinsic fraud has not |

f

been shown.

We. conclude, therefore, that the present action. is not

the ‘‘independent action *-* * to set aside a judgment for

-fraud upon the court,” contemplated by NRCP 60(b), and

that a claim for relief thereunder is not presented.

. This qction is not authorized by the Uniform Declara-

ine Judgments Act. The complaint herein does not specifi-

eally request relief under the Uniform Declaratory Judg-

ments Act. It does; however, contain ‘the ‘charge that the

‘marital status of the parties is uncertain. The7judgment

entered expresses the lower court’s-view: that Benjamin ‘is

entitled to have his marital rights and status clarified and

determined.’’ The briefs on appeal mentioned declaratory

_ relief, as did counsel in oral argument. Sarah, the respond.

ent, does not contend that we should ré ‘fase to consider said.

Act because“of the charactérization ‘of the complaint as one

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to ‘vacate eid set aside a deere: of divoree.’? Rather, she

has assumed that Hp, it. Therefore, we believe

ourselves compelled to determine whether the present ac-

_ tion is authorizd by that Act. NRS 30.010-30.160.

NRS 30.030 provides in part: et ; and such declara-

tion shall have the farce and effect of a final judgment or

- decree.’’ The tinal décree determining _thegmarital. status

of Sarah and Benjamin in Nevada was entered by the dis-

vt court, on June 30, 1955. "In Kress v. Corey, 65 Nev. -

~T, 26, 189 P. 2d 352, 364, this court quoted with approval a

statement from Borchard, Declaratory Judgments, wherein

“four requisite precedent facts for declaratory ‘relief are

summarized. One ot them is that ‘*the issue ‘involved in

the controversy musi be ripe for judicial determination.’

The question concerning marital status was ‘‘ripe for de-

termination’’. by the Nevada court in 1953, and was then,

determined. No appeal was taken from that determination.

.- The court was acting within its jurisdiction when it made

_it. It is not subject to attack upen the claim of extrinsic

fraud, for the reasons heretofore given: A justiciable issue

as to the parties’ marital status in Nevada, does not now

me Colby v. Colby, (Fla. 1960), 120 So. 2d°797; Garvin

v. Garvin, 306 N.Y. 118, 116 N.E. 2d 73. pe

We conclude that, under the circumstances of this case,

+4 claim for relief under. the Uniform: Declaratory Judg-

ments Act is not stated. ; we

_ 3. Full. Faith ana Credit: The: primary thrust of re-

‘spondent Benjamin’s argument in, support of the judgment

- entered below rests upon the full faith and credit clause of

the United States Constitution. Because of that claus’ he

insists that Nevada must recognize the Maryland decree

‘as the binding determination of the parties’ marital status

in Nevada. Sutton v. Leib, 342 U. S. 402, 96 L. Ed. 440, is

cited as supporting authority. We do not consider that

_ease to be in point. In Sutton v. Leib, supra, the marital |

status of the former Mrs. Leib was in issue. She was the

~_ —

tae . Ya

plaintiff. “Her marital status hdd’ never been before a

Nevada court tor determination. She. had never .been a

party to a judicial proceeding in Nevada: She had married

a Mr. Hehzel after he had obtained w Nevada. default

diveree, That marriage was later annulled and declared

void by a New York court with personal jurisdiction over.

«both parties. In holding that the Illinois federal court must .

vive full faith and credit to the New York annullment de-

eree (and stating, by dictum, that Nevada would have to

.- do the same), thy Supreme Court did not-indicate that Mr.

- Wenzel’s Nevado dirares was not valid in Nevada, That -

‘ question was not prése ‘nted for decision. It is presented in.

the case at bar. 5

. Analysis demands the conelusion that Benjamin does not

here ask us to merely accord full faith and credit to. the

. Maryland’ decree. Instead, we are asked to give it greater

eredit ‘and respect than the prior decree of our own State

lawfully entered. Full faith and credit does not require,

nor does it contemplate; such action from us. Perry v.

Perry, 51 Wash. 2d 358, 318 P. 2d 968; Hammell v. Britton,

79 Cal. 24°72, 119 DP. 2d 333; Martin Bros. Box Co. v. Fritz,

2IS8 lowa 482,.292.N.W. 143. - a

The judicial status of a prior default, decree in the state

that decreed it, hax not been definitely determined by the

United States Supreme Coprt. However, in Williams v.

North Carolina, 325 U.S. 226, 231, 239, $9 L. Ed. 1577, 1582.

1587. the majority opinion, written by Mr. Justice Frank-

furter appears to assume the validity of the prior Nevada

- default decree in Nevada, fdr he wrote, inter alia: ‘If a

finding by the Court of one State that domicil in: another

State has been abandoned were conclusive upon the old

domiciliary State; the policy of each State in matters of

‘most intimate concern could be subverted by the policy of

every other State. This Court has long ago denied. the

existence of such destructive power. The issue has a far .

reach.. For domicil ts the foundation of probate “oritingre

precisély as it is that of divorce. 9 My. Justice Murphy, i

19a

his concurring opinion in Williams -v. North ‘Carolina,

supra, stated : ‘The Stafe of Nevada has unquestioned ay-

thority, consistent with, procedural due process, to grant

divorces on whatever basis it seés fit to alf who meet its .

statutory requirements. It is entitled, moreover, to give its -

divorcee decrees absolute and binding finality within the con-

fines of its borders.’’ . ,

Mr. Justice Rutledge and Mr. Justice Black, in dissenting

; opinions in that case, each called attention to the fact that |

“the majofity opinion therein does not hold that the Nevada *

- judgment is invalid in Nevada.

We hold, therefore, ‘that the default decree of divorce ,

granted Sarah by the Nevada district court in 1955 is ‘a

valid, final and~ conclusive determination of the ‘marital

’ - status of Sarah and Benjamin in Nevada; that a claim for

relief is not asserted under the full faith and credit. clause

of the United States Constitution.

Reversed. |

: iets . THuompson, J.

We concur: , ey ; |

"Bapr, CJ... : : SS

— J.

inne. A full, true and Correct Copy. C. R. Davenport,

” Clerk of the Supreme Court.

Dorcas P. Wuson, Deputy. +

lla -

APPENDIX C

Judgments of the Supreme Court

‘Appeal - from the Kighth Judicial District Court, Clark

County, Nevatit. Honorable David Zenoff, Distriet ‘Judge

‘ Saran P. Conny, Appellant, . ——

. egrets. z ;

——

een

| Benxsamin Corny, Respondent.

Jones, Wiener & Jones

L. O. Hawkins ae

Attorneys for Appe lant

Rosert E. Jones

. Morse & Cinaves

Attornes ‘ys for Re spond nt

pee 2

-No. 4440 “

_ APPEAL FROM JUDGMENT

This case came Oo regularly to be heard on the 20th day

of March, 1962, it being a.regular day of the January 1962

term of this court, *°when Louis Wiener, Jr., Esq.; of - the

firm: Jones, Wiener & Jones, counsel for appellant, and

William R. Morse,-Esq.,-of the firm Morse & Graves, and

Robert E. Jones, Esq.,. counsel for respondent, were duly

heard in-oral argument on the nierits of the case for their |

respective clients. See Mi

Now, on this day, all and singular the law and ‘the

prémises having-been seen, beard and duly considered, and

the court being fully advised in the law, files with the clerk

of this court its opinion in’writing by Thompson, J., con-

eurred in by Badt, C. J., and McNamee, J., to the effect:

_ ‘Reversed. We cdy. /

. Whereupon, it is now ordered, adjudged and decreed

ais sees above.

a

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ep $ 12a ‘2 : ; i . | ae ;

Judgment entered this 27th day of March, 1962.

STATE OF. SS ace OT 82 GLO PET ST aS aa aaa

4 CR. Davenport, the duly “appointed and qualified

Clerk of the Supreme Court of said State of Nevada, do

hereby certify that foregoing is a full, true and correct copy

of judgment entered in Vol. 9 of judgment docket, at page

245, in the matter of Colby v. Colby, No; 4440. :

_Ix Wrrsess W HEREOF, I have hereunto eet t my hand and

affixed the seal of said Supreme Court, at my office in Car. " /

son City, Nevada, this 8th day of August, 1962.

C. R. Daveyporr *

Clerk of Supreme Court. of the

State of Nevada :

.

7

7

BRIEF IN OPPO S|-

TION TO PETITION

FOR WRIT be

"CERTIORARI

. Benszamrn Cosy, Petitioner

* ge ; ve GE s

Saran P: ; Respondent .—

BRIEF IN TO. PETITION FOR A WRIT .

_ OF CERTIORARI TO THE SUPREME COURT ws

i Lous Wrexer, Jn. pee ©

230 Las Vegas evard —

es Las Vegas, Nevada

Sonn A. Beck -

—._. Southern Building |

rs Fe Washington 5,D.C.

Southern Building _

Washington 5,D).C.°

Etizaseta R. Youna

o 3 a rag Washington 5, D. C.

peer . Attorneys for Respondent

. ; z . 5 3 ; ;

Puss of Breow S Apazes, Wasummeson, D.C. >

e ; Z +

INDEX

oe 2 : abe

SurrLemex tan STaTeMeNT OF Questions Preésextep ... 1V

SUPPLEMENTM. STATEMENT OF THE Case . ay BP Ape Ace

REASONS FOR Dexvixe JME Wut ..... LJ: AT RE ; Te

lL Tue Case Pesiawih No’ SPectan on. Importaxt

Reasons ror Geaxtine THe Wait or Certionar .. * 4 *

A. The Nevada ‘Distriet Court had jurisdittion .

, togrant Respondent a valid Decree of Divoree 4 / -

B. Sutton vy. Leib neither controls noF conflicts _

with thé Nevada judgment ..........-..... y

C, Williams vy. North Carolina decided thug" af

major question. whicp the Pe tion seebkayto’ -

. present 12.06. voseJecvccrenesouis Fe én LP o

P. The ruling of the Nevada Supreme Court is

‘ supported by the decisions of all the state

courts of last resort which th have ruled on. s.the

rei pet So cccsdicdevedse She cccesvces wigetovce Ww

AL Tur Newapa dene owext Dows No VicLesxct To THE

Due Process Cravse Becavse THe Nevapa Dis-

Thor Court Mane a Fisoixe or Fact Basen Urox

Evivesce, Tuat Mis. Cors¥ Hap tie Regr tyre

SOO 00 SENN oes cv awcb anda sd ass PPS Gt, C

COn amon i, co Licidapsdncnsscevesgrcertpeess ts fabs 12

TABLE OF CITATIONS

Cases: Tae ais

Colby. Colby (Nev ), 269 DP. (2d) tt Scasedomoecees 2

Hamell v. Britton. 19 Cak (2d) 72; 119 P. (2d) 323... 10

. Johnson v. Muelberqer, 340 US. 581 eee 6

Martin Bros, Box Co. x. Fritz, 228 Na, 482, 292 NW.143 WN

Perry ©. Perry. OV Wash. (24) 358, 319 P. (2d) ‘968 .. 10

Sulton v. Lieb, 342 U.S. 402 (1952) 2%... ccccccccaccne . 5,6

Tilt v. Kelacy, 207 US, 43 (A907) of cee eee ee eee 7

‘Williams vy. North Carolina 1,317 U.S. 287 (1942) ..4, 6,12

_ Williams v. North Carolina 11,225 US. 226 A945

4, 6,.7, 9, 10, 11, 12..

Worcester. County Trust. Co, vy, Riley, 302 US. 292

_ (1937) ° sec ccdprccmccegecccescctecscoesen eeeege 7

7°

+ 3. SS-PRE

preme Court of the Anited states

OcToBER TERM, , 1962

BENJAMIN CoLby, Petitioner

VW

‘Saran P. Corsy, Respondent

2

, - : a

% BRIEF IN OPPOSITION {TO PETITION FOR A’ WRIT

sega - OF CERTIORARI TO THE SUPREME COURT |

- OF THE STATE OF NEVADA

4

SUPPLEMENTAL STATEMENT OF QUESTIONS |

PRESENTED

Tn 1955, Responde nt instituted-an action for divorce

against Petitioner inthe Nevada District Court.’ Her

Complaint contained allegations of fact with reference

to her. period of donseite and physical presence in the

State of Nevada for more than six weeks preceding the

commencement of her action, sufficient to comply with

the applicable Netada statute.’ Constructive service

of process was made upon Petitioner hoth by personal

— service outside of Nevada aud by publication. He. did

.

+

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. - m 2

) . x

- vd ’ 5 .

.

not enter an appearance and his default was duly en-

~ tered. ‘Subsequently a hearing took place and evidence

_ was received by the Nevada District Court. After con-

sidering the evidence and the law, tlie-Nevada ‘District

Court made various findings of fact, including a finding

that Responderit had ‘been a hona fide and actual resi-

dent and domiciliary of the State of Nevada for the

requisite statutory period. A Decree of Divorce was

granted the Respondent.. Thereafter, the Marvland

proceedings described on Page 2 of: the Petition Or a

Ww rit of ¢ ‘ertiorari took place.

The questions presented are:

1. Whether’ the Full Faith and e redit Clause bition

Nevada to substitute the finding of fact of the Mary- °

renee Court on the question of domicil for the earlier

finding of the Nevada District Court and thereby

invalidate the’Nevada Decree of Divoree. .

2. Whether the 1955 Decree of Divorce of the Nevada

Supreme Court decision constituted a denial of, due

process for lack of requisite, jurisdiction.

. SUPPLEMENTAL STATEMENT OF THE CASE

- This supplemental statement is rendered advisable -

by the complete omission in the Petition of any refer-

ence to the domiciliary finding of fact in the original -

Decree of Divorce. Paragraph I of Respondent's Com-

plaint for Divorce reads as follows: |

“Por more than, six weeks immediately preced-

ing the commencement of this action, plaintiff hes

» been, and now is, a bona fide and actual resident

and domiciliary of the State of Nev ada, and has*

been actually and corporally present in’ said State

for more than six weeks prior to the commeénce-

ment of this action.” an >)

_ —™*

.

"

»

e «

The Decree of Divorce granted Re xpondent (plain-

tiff i that action) contains the following finding of

fact among others: '

“and the Court having duly ‘considered the law

and the evidence, finds that the plaintiff... for

more than six weeks prior to the commencenient

- + of this action was, and now is, a bona fide and — -

aetual— resident and domiciliary of the State of

Nevada.” ‘

In November, 1957, a Maryland Circuit Court judge

after consideration of a record made before a Com-

missioner, made her own finding ,of fact on the issue

of whether the Respondent had a bona fide domicil in

Nevada when she obtained her decree of: divorce.

Thé Supreme Court of Nevada rejected the conten-

tion that it is obliged by full faith and credit to invali-

date a Nevada trial court decree based’ on an express

_ finding of fact because of a conflicting finding of: fact

made subsequently by the Maryland court. In holding

the decree of divorce granted Respondent by the

’ Nevada District court to” he. a valid, final and con-.

clusive ‘determination of the marital status of Peti-

tioner and Respondent in Nevada, the Nevada Supreme

Court said: . * : :

b 6 °

‘Analysis demands the conclusion that Betija--

mir does not here ask: us to merely accord: full

faith and credit to the M: urvland decree. Instead,

we are asked to give it greater credit and respect

than the prior decree of our own State lawfully

entered. Pull faith and credit does not require,

nor dées it contemplate. such action from us.

Colby vy. Colby (Nev. )y 569 P, (2d) 1019. ;

4 . a °

“REASONS FOR DENYING THE WRIT

_ L. THE CASE PRESENTS NO SPECIAL OR IMPORTANT REASONS

FOR GRANTING THE WRIT OF CERTIORARI

A. The Nevada District Court Had Jurisdiction to Grant

Respondent a Valid Decree of Divorce

Williams vy. North Carolina 1., 317 U.S, 287 (1942),

settled affirmatively the jurisdiction of a state court to

gr: ant a decree ofydivorce to a spouse domiciled in that

State where the requirements of procedural due process _

have been satistigd, notwithstanding that >the other

spouse did not appear in the divorce suit and was not.’

personally served, with process in the State in avhich

the divorce was granted. That valid constructive serv-

ice of process was made on Petitioner in the original

divorce proceeding, in accordance with Nevada pro-

eedural law, is established by the finding of facet con-

tained in the decree of divorce. Whatever the courts

of any one or all of the other 49 States might subse-

_ quently rule or hold with reference to the. disputed

fact of domicil by Mrs. Colby in Nevada, it. is clear.

that under ‘the: holding of Wi/liams 1, the Nevada

Distriet Court had. thie requisite. authority and juris-

diction to grant the decree of divorcee based on its

finding that the plaintiff spouse had domici! in Nevada

of sufficient duration to satisfy the applicable Nevada

statute. That the Marvland. cotirt had the right to

-make its own inquiry into the faets of Mrs. Colby’s

Nevada domicil is equally clear. Williams v. North’

Carolina 11,325 U.S. °226 (7945). _ Any oné of ‘the

states ‘outside of Nevada, having personal jurisdiction

over the parties, could have so inquired. ‘That Mary-_

land beeame the forum for that purpose-was a mere

-happenstance.., The sfaryTatid court found that, Mrs.

Colby was nat, in. fact, domiciled in Nevada. Con-

- ‘eeivably, the courts of others of the remaining 49

o . .

2 .o

’

States would have arrived at the opposite conclusion.

Petitioner contends that the Nevada court is required

‘ov full faith and eredit to permit its own finding of

. fact of domicile to be-obliterated bv a contrary finding

made by the courf of the first sister State which happens

tu he called upon for a ruling.

The ‘foregofig contention does not warrant: review

of the Nevada judgment.

B. Sutton v. Leib Neither Controls nor Conflicts With the

Nevada Judgment

The facts in Sutton v. Leib, 342 U.S. 402 (1952),

present a situation distinguishable from the present.

one: Mrs. Sutton divorced her then husband, Leib, in... -:

_ Illinois; one Henzel, obtained a divorce in Nevada from

his wife whe had. not been served in Nevada nor ap-

peared in the Nevada proceeding. Subsequently, a

New York court declared the Nevada divorce decree

void. Mrs. Sutton then obtained a New York decree

abnulling her marriage with Henzel. “She then sued. *

her original husband, Leib, in Iinois for unpaid ali-

‘mony installments. The Court held that the New York

annulment decree was entitled to full faith-and credit’

in Illinois. , The case sheds no light: whatever on the

questjon of wheter Nevada Would have had to give full

faith and credit to the New York decree declariig the

earlier Nevada decree of divorce void for Jack of

‘domiciliary jurisdiction over the plaintiff in that pro-

ceeding, Mr: Henzel. The following statement appear-

‘ing on pp. 7-8 of the Petition is Inacetirate ;

** Actually in the Suttatr case this ¢ ourt “eversed

A specific holding below that the Nevada decree

was valid in Nevada. °° 342 U.S. at 404.

’

enamine eam

6 fe,

os 2 es

-

Petitioner this has confused the ** Nevada decree”’

with the “*Nevada marriage”. In discussing the basis

of. the affirmance of the Seventh Creat Court of,

Appeals, this Court said: | ;

“The afirmanee was. bottomed on the one binsdits

that, as the Nevada marriage of petitioner was —

valid in Nevada, it terminated the lability for

. alimony under the Illinois a of divorve.”’

The folléwing statement on page 8 of the Petition, .

is likew wise inaccurate:

“The question whistles Nevada's: 1955 decree

was ‘lawfully entered’ was the very question which

Was litigated for the first time in Maryland . vi

‘Under the ruling in Williams v. North Carolina TI,

supra, that question was litigated in the Nevada Dis-

trict Court im the original divorce proceeding in 1955. -

Mrs. Colby was before the Court which had jurisdiction

over Mr: Colby under Nevada procedural rules, by

constructive service. The issue of domicilé was, fully

tried and a clear finding of fact made. -Johsson ve

Muelberger, 34% U.S, 581 compels a state othe, than.

the state of original judame nt to subordinate its own

polity to a decree for which full faith and credit is

sought. Like Sutton v, Leth, supra, it does not require,

hold, or suggest that the courts of the state which issued

the original divorcee decree. must accept a finding of, .

fact made by the court of another state, or. conceivably, ..

by a jury, impanelled in another state, as in Williams.

v. Yorth ‘arolina Il, oupre, as a basis for.invalidating> ©

its own decree

— ~

-

‘

c. Williems v. North: Carolina II Decided the Major Question

- Which This Petition Seeks to Present

los holding. in w tHliais \. North ¢ ‘agolina i, supra,

that North Carolina had the power ‘to refuse full faith

and credit to the Ne vada divorcee dec ‘ree on the bast

ofLits own finding of fact that ne bora tide alomieil was

_acjitired in Nevada, this Court left no reom for doubt

that Nevada would not be required to vive full faith

and credit to the North Carolina judgment, therety

invalidating: its own decree, Mr. Justice Frankfurter

quoted with appre: al the following statement from

Ww oree ster ( ‘ounty Trust fio. Ve Rile 4. OP U.S. 202:

Neither the Fourteenth Arfendme nt nor the

_ full faith and credit clase requires uniformity iv.

the decisions of the courts of different states ‘as te

the place of domieil, where the exertion of «tats

‘power is dependent upon dotnieil ° ‘within it

Jhoundaries. ts a7

The i raling in Tit ve Kelsey, 207 UUS. 45, ts likew Wise

quoted with ay |’ rroval:

“On the contrary, it ix open to the aouirte of any

State in the trial of a collate ral Isane te determine

Hipon the evidence produced the trim domiet! of

- the deceased.”

After ruling that it would be ‘intolerable’ te permit .

the finding of domicil -by Nevada ‘te foreclose al}

States’, Mr. Justices Fr: ankfurter, on: page 232 miu

perfectly clear that by & parity of reasoning, North

Carolina: does not have the antherity or power to force

ean ‘ada to cancel ont its own decree of divorce:

“Rut to endow each State witli. controlling aut-

thority to nullify the power of a sister’ State to

grant a divorce based upon a finding that one

“

_

~

spouse had aequired a’ new (homed! Within the

divorcing State would, in the proper “Pumet ion wag”

of our Federal system. be equally indefensible.

Ne State court can assume conipreliensive atten

tion te the various and potentialiv? coonsthiet ange

_ Interests that several States may haye in the aneti-

thittonal aspects of marriage. ‘The Hecessary ne

commodation between the right of one State to

- safe tard its interest im the family relation of its

own people and the power of another State te grant

divorcees ean be left to neither Stafe.” (Page 252)

That the North Carolina finding of no domivil would

lave ty exist side by <ude with the conthieting ‘New nudis

. finding of comic ‘iloas thus stated:

yi ‘

: 62s We cannot lipset the Judgment ‘ fore ts.

And we antiet do so even if We alse Feorrnel. nh The

record of the Court of original judgment warrant

‘for its finding that m had jurisdietion.”’ (age

254) . . a

Again on Page 287, Mr, Justice Frankfurter ‘come,

ments that beth Nerth Cavelina and Nevada ave on

titled to their respective views on the question of

ee ee

‘And so we cunniot <i that North Carotna was

hot entitled to draw the inference, that — s

never abandoned their demicils in North Carolina,

particulavty since we conld not conseientionsly

prefer, were 7t ovr business to do so, the contrary

finding: of the Nevada Court.” emphasis gry

plied) ae

- That eonflieting rulings. of various state’ mil am

the factual issue of domici! must be permitted to sithsist

as “tone of those mnitoward results inevitable in a Fed-

eral system in whieh vegulation of domestic relations

:

has been deft with the States and not given te the:

ational authority’. i Mr. Justice’ Frankfurter’.

comelision. : 4 - ~! ‘

) Mr. Justice Miephis. in dus conemertig opinion, left

, Mw ream for donb its to bits agrees nent with the tac jor s

“epinion: nak , :

The State of Név oa hits upayestrasnal é ieuit hae

ify, consistent witli powevmeutyr rat! re | Were, To orrupt

. divaye exon Whaterser basi it sees fi torial Wihree rrneert

its statiters requirenients, Tt i entitled. amere: |

ver, te give fo tts, dis sopra: hncueee ubsehite smd

° binding finality within the confines of it> berber °°

7) Page 250) pee io

er

é

Firally, Mr. Justice Rutledge. in his dissenting opin

, ion affirms the validity of the Nevada divorce decree

2 within the confines of Nevada, aT plain teyras

** Novad.a’ - jude nt ii rheot heen verded.. It

eotild Jil beer, af thee ste test pp iee ~ for stistsin af

tis anphodde an "North ( arama ony det penny, I

<tands; with the marriages foudided typon tt. imine

peached: For all that’ has beer determined

“ead be, Hiless another change atin the making,

petitioners aredawfol husband and wife in Nevada

retat Bs Wiliams. North Carolia Loe -Willhams ve Nuvtl

; “Carolina fi.< f Page 244 — s

It is significant that Mr. Justice Rutledge cites the

majority opinion as authority in stipport of the fore-

coing view, Ut ts evident that he regards Williams I

as controlling on the very question whieh the Pett

tiener herein describes as “povel? Leaving te possible

doubt in the mind of anyone, Mr. Austice Rutledge

agin analyzes the majority riulimg: °° :

“What. exactly are-the effects of the Dakin <jron ?

et + The Court is eaureful Mot to sits that Neverda ‘= judg

P « Jj ‘

~~

\w

Y a

Hy)

nent is nyt valid in Nevada. To repeat, the Court

could not so deelare it, unless-a different test -

applies to sustain that. judgment than -stipports

North Carolina's. Presumably the same standard |

applies to both: and each state accordingly is free

to follow its own poliey, wherever the evidence,

' whether the same or different, permits conflicting

inferenves’ of domicil, as it always does wien the

question becomes important.” (Page 246)

His tast-word on the point is:

: 7 “The necessary conclusion follows that the Ne-

vada decree ‘was valid and remains valid within

her borders."’ ( Page 247)

It is Resjondent’s view that Mr. Justice Rutledge

apes 2 analyzed the majority opinion in Williams

North Carolina 11, supra, as holding that while --

North Carolina was not obliged to give full faith and

credit to the Nevada decree, Nevada was equally-with-

out obligation to vacate its own decree. — . °

D. The Ruling of the Nevada Suprems Court Is Supported by

iho Decisions of All Siate Ccerts of Lest Resost Which

“Have Ruled on the Polat. - :

os

a * ie _ Even before the decision of this Court ‘in Williams

. North’ Carolina: I1, supra, the Courts of all state

tape last resort cated upon to rule on’this point,

were undanimons in holding that the conrt of original

judgment is not bound by full faith at d credit te invali-

date is own judgment on the basis of a contrary finding

of jurisdictional facts by another state.

Perry y. Perry, 51 Wash. (2a) 358) 318 P. (2d).

Hammell v. Britten, 19 Cat (2d) 72,-:119 P. (2d) .

333 ‘4 ae

11 a.

Martin Brow Bor Co. x. Fritz, 228 La. $R2, 20ey?

N.W. 143 ,

The language of the Lowa Supreme Ort Was pre-

phetic of the rulings to be made many Vears later in,

Williams v. North ( ‘arolina Li, Up :

“We know of tio decision which would support

the proposition that, if a judgment has been adjudi-

cated to be valid and enforcible by a Court in Jowa,

bt enforcement of such judgment is thereafter |

refused by a court in Indiana, the Lowa Court+

thiust then follow the example of the Indiana Court

and alse refuse fo enforce such- judgment: We

ure willing to so construe the fil faith and ere “dit

clause.”

il. THE NEVADA JUDGMENT DOES ‘NO VIOLENCE TO THE DUE

' PROCESS CLAUSE BECAUSE THE NEVADA DISTRICT COURT

MADE A FINDING OF FACT. BASED UPON EVIDENCE, THAT .

MRS. COLBY HAD THE REQUISITE DOMICIL IN NEVADA

The argument appearing on pp. 9-11 of the Petition

rests upon the Fallaci ious reasoning that Mrs, Colby

was not domiciledin Nevada in 1955; because a Mary-

land court so found, subsequently. It completely’ iz-

nores the finding of fart of the Nevada District Court.

The ruling that the Nevada trial court had Jurisdiction

Ao enfer the decree is characterized as “groundless”,

rn of the Justiees.who wrote epinions:in the Williams

North €arolina 11, supra, Msagree with the foregoing

ne ‘terization. It would appear that the Petition

is itself based upon a shaw cope as of “cireular

reasoning’ *. It is there argued:

(1) Mrs. ¢ ‘olby Was not domie led in No vada in

1955, because

(2) Tlie Marvland olan <0 o found in A957.

ee. eee wre

a

a a. 12

.(3) Therefore the Nevada decree was yoid for

lack of jurisdiction and denial to petitioner of

“due process, - - * ices

The foregoing structure of reasoning collapse s when

it is oer that the Nevada District Court mule

a finding of thé fact of domicil, togethei with requisite

jurisdic tion over the defendant resting on constructive

service of process under the law of Nevada, Williams -

v. North Carolina I, supra, so hols and ix controlling,

The contention that the original decree of divorce

denied, the defendant due process is without merit and

dous not warrant the granting of certiorari,

* * CONCLUSION

The judgment of the Nevada Supreme Court is

‘Wholly in accord with the decision of this Court “in

Williams vz North Carolina I1j-supra. The present

Petition therefore fails to Satisfy the requirements of

_ Supreme Court Rule 19, t(a). All courts which have

ruled upon the question. under .consideration, this

Court and the Supreme Courts of Nevada, Washington,

California and Lowa are wianimous in holding that

full faith and credit does. not require the state of

original judgment to yield its-own judgment to that

" of a court or jury of another state. For the foregoing |

*

he denied.

oe 3

reasous, the Petition for a Writ-of Certiorari should

Respe-tfully submitted,

Lowis Wiener, Jn.

¢ ego OCs 230 Lax Vegas Boulevard

oe ‘South

‘ Las Vegas, Nevada 4

pati a 7 Joun A, Beck

4. Southern Building

October, 1962.

Wiéshington 5, D.C.

Noum an B. Frost

Southern Building

ce Washington 5, D.C:

Erizanern R. ¥ouxa

° ‘Southern Building

} Washington 5, D.C.

££ Wis for Respondent

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