# Appendix — Baehr v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0518%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1962 - **Citation:** 371 U.S. 888 ## Text , * la Le 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 “ J ° * 8a 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 - § ~~ 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 . + * o ° . - 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 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