Petition for a Writ of Certiorari — Howarth v. Howarth

Supreme Court brief1948

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SUBJECT INDEX

PAGE

Petition for writ of certiorari 1

Summary statement of the matter involved 2

This petition presents facts disclosing a failure and refusal

by the State of California to give full faith and credit to

a final judgment duly rendered and existing in the State

of Utah, and facts showing a denial by the State of Cali-

fornia to your petitioner of rights guaranteed to him

under the Fourteenth Amendment to the Constitution of

the United States

Petitioner’s contentions

Respondent’s contentions

Basis of jurisdiction of the United States Supreme Court to

review the judgment

1. Statutory provisions ...............

RE On Ee aS OD

3. Cases believed to sustain the jurisdiction of the Su-

preme Court of the United States...........

The refusal of the California District Court of Appeal

to give full faith and credit to the judgment of the

Utah court because of its nature is a ruling upon a

federal right subject to review by this court............

II.

“The United States Supreme Court is the final arbiter

of questions arising under the full faith and credit

EE ‘nihibnad iach ieeansientahttaintahainichtinniiiveninens wneniice

ii.

PAGE

ITI.

The Supreme Court of the State of California having

refused to grant a hearing therein, the judgment of

the District Court of Appeal of the State of Cali-

fornia is a final judgment 10

IV.

Certiorari and not appeal is the correct procedure

under the facts presented here ll

4. Grounds upon which it is contended the questions in-

volved are substantial ll

5. Stage in proceedings and method of raising federal

question 17

The questions presented 19

Reasons relied on for the granting of the writ. -_

Conclusion . 29

Brief in support of petition for writ of certiorari... 31

Opinions of the court DelOW.........ccoeeccccecccccsseeecesseeeeeeees 31

Grounds of jurisdiction... ceccecceccce-s. 31

Statement of the case viitesiiensihtiaesaeensii 32

Specifications of error.. 35

Summary of the argument 37

Argument sig 39

Point One. The California Court has failed to give to the

decree of the Utah Court the due faith and credit to

which it was entitled and has thereby violated the Con-

stitution of the United States............. 39

Point Two. The full faith and credit clause requires the

judgments of the courts of one state to be given the

same full faith and credit as they have by law or usage

in the state granting the judgment 41

Point Three. Claims under the “property settlement and

separation agreement” may not be relitigated in Cali-

fornia, without violating the provisions of the Constitu-

tion of the United States 41

Point Four. California may not deny full faith and credit

to the Utah decree on the theory that it may not be suffi-

cient to sustain contempt of court proceedings in Cali-

fornia 42

Point Five. “The property settlement and separation agree-

ment” merged in the Utah decree and all claims or rights

thereunder are now merged in every other state.

peter eweeeeeees

Point Six. Under the laws of Utah the sums described in

the California judgment are a money judgment enforce-

able as such in Utah by execution 47

Point Seven. The provisions of the “property settlement

and separation agreement for weekly installments payable

to and “for the support of the wife,” was a severable one

in the nature of alimony : 48

Point Eight. The common law rule that the obligation to

pay alimony terminates upon the death of either husband

or wife is not the law of Utah and the California court

has construed the Utah decree under that common law

tule .. 49

Point Nine. The Utah decree is res adjudicata not only as

to all matters litigated therein but as to all matters that

could have been litigated therein.... 52

Conclusion 52

ORE _ - oe —

Iv.

TABLE OF AUTHORITIES CITED

CasEs PAGE

Adler v. Adiler, 373 Ill. 361, 26 N. E. (2d) 504; cert. den.

311 U. S. 620 47

American Ry. Exp. Co. v. Levee, 263 U. S. 19, 44 S. Ct. 11,

68 L. Ed. 140 9, 32

Barber v. Barber, 323 U. S. 77, 89 L. Ed. 82.............. 10, 25, 26, 40

Barraclough v. Barraclough, 100 Utah 196 34

Bates v. Bodie, 245 U. S. 520, 62 L. Ed. 444

‘mak 14, 20, 25, 27, 44, 45, 52

Bazzo v. Bazzo, 425 Utah 625 34

Beesley v. Badger, et al., 66 Utah 194........ 16, 18, 20, 23, 34, 47, 50

Caruthers v. Corbin, 38 Ga. 75 28

Chesebro v. Los Angeles County Flood Control District, 306

U. S. 459 ; 16

Cody v. Cody, 47 Utah 456.............. | 50

Coe v. Coe, S. C. U. S., Oct. Term 1946, No. 958; cert. granted

Mar. 3, 1947, U. S. S. C., Adv. Op., Vol. 91, No. 9, p. 689....

-11, 22

Cromwell v. County of Sac, 94 U. S. 351 27

Damon v. Webber, 111 Me. 473, 89 Atl. 734 43

Davis v. Davis, 61 Okla. 275, 161 Pac. 190. 48

Davis v. Davis, 305 U. S. 32, 83 L. Ed. 26 15, 25, 40

Dry v. Rice, 147 Va. 331, 137 S. E. 473 28, 51

Estin v. Estin, No. 139, Oct. Term 1947; cert. den. Oct. 13,

1947 11, 24

Gilbert v. Hayward, 37 R. I. 303 48

Hamer v. New York Railways Co., 244 U. S. 266, 61 L. Ed.

1125 25, 27

Hamilton v. University of California, 293 U. S. 245.0000. 16

Harding v. Harding, 198 U. S. 317, 49 L. Ed. 1076....14, 25, 39,- 52

PAGE

Hart Steel Co. v. Railway Supply Co., 224 U. S. 294, 61 L. Ed.

1148 29

Heiser v. Woodruff, 326 U. S. 726 14, 15, 25, 27, 52

Herrick v. Herrick, 319 Ill. 146, 149 N. E. 820 47

Holloway v. Holloway, 130 Ohio St. 214, 198 N. E. 579............ 46

Hough v. Hough, 26 Cal. (2d) 605, 160 P. (2d) 15.2022... 47

Kreiger v. Kreiger, No. 371, Oct. Term 1947 11, 24

Kutchai v. Kutchai, 223 Mich. 569. 48

Laughlin v. Pink, 311 U. S. 707, 85 L. Ed. 459. 29

Lawson v. W. O. W., 88 Utah 267, 53 P. (2d) 432 28

Lynde v. Lynde, 64 N. J. Eq. 736 48

Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, 88 L. Ed. 149

25, 27, 40, 46

Milwaukee County v. White Co., 296 U. S. 268, 80 L. Ed. 220.... 40

Morris v. Jones, U. S. S. C., Adv. Op., Vol. 91, No. 6, p. 399...

10, 11, 25, 27, 40, 41, 42

NS v. Moyle, 17 Utah 113, 53 Pac. 1010............ 16, 23, 33, 50

Murphy v. Shelton, 183 Wash. 180, 48 P. (2d) 247.0000... 49, 50

National Surety Co., In re, 284 N. Y. 593; cert. den. 311 U. S.

707, 85 L. Ed. 859. 29, 51

Parker v. Parker, 193 Cal. 478, 225 Pac. 447 mealies 2

Pennoyer v. Neff, 95 U. S. 714. ‘< 12

Phy v. Phy, 116 Ore. 31, 236 Pac. 751 ... 48

Prime v. Prime, 172 Ore. 34, 13 P. (2d) 550.............. 23, 47, 49, 51

Riley v. New York Trust Co., 315 U. S. 343, 86 L. Ed. 885....

inkieimesnennihibitailpy tina ites 25, 26, 40, 41, 42, 43, 51

Roberts v. Higgins, 122 Cal. App. 170, 9 P. (2d) 517.................. 51

Schwartz v. Dunham, 52 Ariz. 256, 80 P. (2d) 453................. 47

Shreve Furniture Co. v. Manufacturers Assn., 168 Ark. 756,

RL a ear Renter PCa CRON PRI ee 29

—s

vi.

PAGE

Sovereign Camp W. O. W. v. Bolin, 305 U. S. 66, 83 L. Ed.

" Bares Bed 25, 28

Spencer, In re, 83 Cal. 460 48

Sun Indem. Co. v. United States, 91 F. (2d) 120. 29

Swift & Co. v. Boston & M. R. R., 82 N. H. 170, 131 Atl. 441... 29

Union Fire Ins. Co. v. Hansen, 237 Mo. App. 1110, 180 S. W.

(2d) 265 29

United States v. Thompson, 251 U. S. 407, 64 L. Ed. 333........ 10

United States v. United States Fidelity and Guaranty Co., 106

F. (2d) 804 29

Wallace v. Wallace, 74 N. H. 256, 67 Atl. 580. 47

Warren v. Warren, 116 Minn. 458, 133 N. W. 1009.........0..0000002.. 47

Williams v. North Carolina, 317 U. S. 287................+- 10, 15, 25, 40

Worthington v. Worthington, 224 Ala. 237, 139 So. 334.............. 47

STATUTES

California Civil Code, Sec. 139 6

California Constitution, Art. I, Sec. 13 6, 7, 21

Judicial Code, Sec. 237(b), amended Feb. 13, 1925, Chap. 229,

Sec. 1, 43 Stat. 937; Jan. 31, 1928, Chap. 14, Sec. 1, 45 Stat.

54; April 26, 1938, Chap. 440, 45 Stat. 466 (28 U.S. C.A,,

Sec. 344) 9, 31

United States Constitution, Art. IV, Sec. 1 8, 19, 35

United States Constitution, Fourteenth Amendment, Sec. 1..........

£7, 2,3

Utah Code, Title 40, Secs. 3-5 (C. L. 17, Sec. 3000).................... 50

Utah Complied Laws (1907), Sec. 1212 6, 7, 12, 20, 34

DN ee ere

IN THE

Supreme Court of the United States

Frep J. Howarta,

Petitioner,

US.

Mare K. Howarta,

Respondent.

PETITION FOR WRIT OF CERTIORARI.

To the Chief Justice and Associate Justices of the Sw

preme Court of the United States:

The petition of Fred J. Howarth for a writ of cer-

tiorari directed to the District Court of Appeal of the

State of California, Second Appellate District, Division

One, respectfully shows to the Honorable Court:

online

SUMMARY STATEMENT OF THE MATTER

INVOLVED.

This Petition Presents Facts Disclosing a Failure and

Refusal by the State of California to Give Full

Faith and Credit to a Final Judgment Duly Ren-

dered and Existing in the State of Utah, and

Facts Showing a Denial by the State of Califor-

nia to Your Petitioner of Rights Guaranteed to

Him Under the Fourteenth Amendment to the

Constitution of the United States.

Respondent brought an action to recover $2640 alleged

to be due under a “Prope** Settlement and Separation

Agreement.” Her comp). ‘ entitled “Complaint for

Money Due Under the 1 ~_ of Written Contract.”

[R. 1.]

The evidence at the trial disclosed: That on July 3,

1941, respondent and your petitioner were husband and

wife [R. 24]; that said agreement contained recitals that

they were then living apart, that they were “mutually de-

sirous of effecting a property settlement and separation

agreement” [R. 25]; that said agreement after making

provisions for the “custody and control” of the minor

children of the parties [R. 28] and for their education

and support [R. 28], set forth a covenant in Paragraph

12 thereof whereby petitioner agreed to pay the sum of

$35.00 weekly to respondent [R. 29] which was followed

by an express declaration that “The weekly payments

provided by Paragraph 12 are for the support of the

wife” [R. 30] and that they were “not . . . assign-

able” by her [R. 30]; that other paragraphs provided

that said payments were to be made during the life of the

—

wife, if she did not remarry [R. 29], and that the hus-

band’s estate would be liable for such payments after his

death if she remained unmarried [R. 30]; that subse-

quently and on June 2, 1943, your petitioner was awarded

an interlocutory decree of divorce in the District Court

of the Third Judicial District, Tooele County, Utah [R.

61], which decree became final six months thereafter [R.

61]; that a copy of said “Property Settlement and Sepa-

ration Agreement” had been attached to petitioner’s com-

plaint in said action and by reference made “a part of

.(said) complaint” [R. 48]; that respondent entered

her written appearance in said action whereby she ad-

mitted service of said complaint upon her and waived

time to answer and consented to the matter being heard

as a default. [R. 55.]

The evidence further disclosed that the Utah Court

made written Findings of Fact [R. 58, 59, 60], and

among other things, recited that petitioner was entitled to

a divorce because of the acts of cruelty complained of

[R. 59] and that the said agreement “. . . attached

to the complaint herein. . . is by reference made a

part of these findings of fact” [R. 59]; that the Court

found “that such agreement is just and proper in its

terms” [R. 59] and that although petitioner was a “fit

and proper person to be awarded the care and custody”

of the child that was still a minor that for the “present

time said child should remain with her mother.” [R. 59.]

The evidence further disclosed that the Conclusions of

Law signed by the Utah Court provided that said agree-

ment was “conformed and approved” [R. 60] and that

the said interlocutory decree, after awarding a divorce to

petitioner subject to the provisions of the Utah statute

aan

as not being final and absolute until six months later, con-

cluded with the following recital:

“2. That the property settlement and agreement

attached to the complaint on file herein which has

been entered into by and between the parties hereto

relative to their property is hereby confirmed and ap-

proved.” [R. 61.]

At all times during the trial petitioner objected that

the Court lacked jurisdiction of your petitioner and of

the cause of action [R. 75], as the contract under which

recovery of the support payments was sought was incor-

porated in the Utah decree and had merged therein and

that the contract had become superseded by the decree and

that the sole obligations of petitioner thereafter imposed

were not those imposed by contract but were those im-

posed by decree and that the sole remedy of respondent

was obtainable only through an action brought on the

Utah decree. [R. 76.]

The trial court overruled the contentions of your peti-

tioner [R. 78] and made a finding that the sum of $2640

“remained due, owing and unpaid . . . under and by

virtue of the terms of said ‘Property Settlement and Sepa-

tion Agreement.’” [R. 34.]

The trial court then proceeded to interpret and construe

the decree of the Utah Court in accordance with the law:

of California and in error then drew the legal conclusion

that “. . . the Property Settlement and Separation

Agreement . . . was not by said Court (Utah), in

said action, mcorporated in nor made an operative part

of the decree of divorce therein rendered.” [R. 35.]

The faulty reasoning underlying such error appears in

the next conclusion of the trial court, for notwithstanding

—5—

the clear and positive deciaration of the parties set forth

in the Property Settlement and Separation Agreement

that “The weekly payments provided by Paragraph 12

are for the support of the wife . . .” [R. 30] it is

there stated: “That said payments were not in the nature

of alimony, but were by way of property settlement.”

[R. 35.]

Judgment was entered in the sum of $2640 in favor of

respondent and against your petitioner. [R. 37, 38.]

Your petitioner appealed from the judgment of the trial

court to the District Court of Appeal, Second Appellate

District, State of California, which Court, on the 18th

day of August, 1947, rendered its decision affirming the

judgment of the trial court [R. 82-94]; that on the 16th

day of October, 1947, and within the time provided un-

der the laws of the State of California, your petitioner

filed his petition in the Supreme Court of the State of

California, praying that a hearing be granted in said

Court after the decision of the said District Court of

Appeal, which petition was denied by said Supreme Court

on the 16th day of October, 1947, two of the Justices

dissenting. [R. 96.] ‘

The said District Court of Appeal also construed and

interpreted the Utah decree and in error held that, because

said decree could not in its opinion be enforced “by con-

tempt proceedings” [R. 87] and “did not order either

party to do anything with respect to the agreement” [R.

87], and because “the husband was not ordered to pay

the wife the sum specified in the agreement” [R. 87] that

said Property Settlement and Separation Agreement had

not merged in said decree. The said Court, further con-

struing the Utah decree, in error held that said decree is

“not only legally insufficient to warrant the docketing of

any money judgment against the plaintiff, but is wholly

insufficient to support contempt proceedings . . .” [R.

89.] Said Court also in error held that the “duty or obli-

gation imposed upon the plaintiff in the Utah divorce ac-

tion was not at all ascertainable from the decree itself

.” [R. 89.] The said Court then proceeded, without

any citation of authority, to declare that petitioner’s “con-

tention that he may not be deprived of the right to have

the support provisions of the Utah Court decree modified

as provided by the laws of the State of Utah without

denying to him the rights guaranteed him by the provi-

sions of section 13, article I of the Constitution of the

State of California and by subdivision 1 of the Four-

teenth Amendment to the Constitution of the United

States, “cannot be sustained.” [R. 90.] The said Court

then noted that “it is true, as urged by appellant, that

section 1212, Compiled Laws, 1907, of the State of Utah,

confers upon the courts of that state powers in reference

to support provisions set forth in a divorce decree similar

to those provided in section 139 of the Civil Code of

California . . .” but said Court declared that said sec-

tions were dependent upon support provisions being incor-

porated in the decree. [R. 90.] Finally, the Court in

error construed the Utah decree not under the laws of

Utah but under the alleged authority of Parker v. Parker,

193 Cal. 478, 225 Pac. 447, so as to establish that the

legal effect of the words “the weekly payments provided

by paragraph 12 are for the support of the wife” to mean

-_.

niin

that they were not for that purpose at all but that “it

was an award to her of a life annuity so long as she did

not remarry, given to the wife as part of a property set-

tlement contract.” [R. 91, 92.]

PETITIONER’S CONTENTIONS.

That the decision of the District Court of Appeal con-

strues the decree of divorce granted to petitioner in the

State of Utah contrary to the express provisions of both

the laws of Utah and of California in declaring that the

Property Settlement and Separation Agreement providing

for payments “for support of the wife” should be con-

strued as not providing for payments for the svnport of

the wife but, on the contrary, as being“. . . an award

to her of a life annuity so long as she did not remarry,

given to the wife as part of a property settlement con-

tract” [R. 91, 92], notwithstanding that the Utah Court

incorporated in its decree an express declaration “that

the property settlement and agreement . . . is hereby

confirmed and approved.” [R. 61.] Petitioner contends

that he has thereby been deprived of the right to have the

support provisions of the Utah decree modified from time

to time as provided by Section 1212, Comp. Laws, 1907,

of the State of Utah, thus denying to him rights guar-

anteed him by the Constitution and laws of the State of

Utah and by the provisions of Section 13, Article 1, of

the Constitution of the State of California and by sub-

division 1 of the Fourteenth Amendment to the Constitu-

tion of the United States. [R. 90.] Petitioner further

contends that the decision of the said District Court of

—

Appeal is erroneous in that it fails to give full faith and

credit to the divorce decree rendered by the State of Utah,

as provided by the provisions of Article IV, Section 1

of the Constitution of the United States.

RESPONDENT'S CONTENTIONS.

Respondent contended in the trial court and in the

District Court of Appeal that the Property Settlement and

Separation Agreement containing express provisions for

the “support of the wife” and for the mairitenance and

education of the children of the parties was not in its

entirety incorporated in the decree and, consequently, it

was not wholly or in part merged in the decree notwith-

standing the fact that the Utah Court expressly made said

agreement a part of its Findings of Fact and provided in

its judgment that said agreement was thereby confirmed

and approved, which contention was predicated in great

part upon respondent’s belief that the Utah decree was

wholly insufficient to support contempt of court proceed-

ings under the laws of the State of California. Respond-

ent further contended that said decree should be construed

under the authority of Parker v. Parker, 193 Cal. 478, as

providing for a life annuity to her rather than for pay-

ments “for the support of the wife” as expressly declared

in said decree. The said contentions of your peitioner

were all overruled and denied by the trial court and by

the District Court of Appeal and said contentions of re-

spondent were all sustained by the trial court and the

District Court of Appeal.

—9—

BASIS OF JURISDICTION OF THE UNITED

STATES SUPREME COURT TO REVIEW

THE JUDGMENT.

1. Statutory Provisions.

The statutory authority believed to sustain the jurisdic-

tion of the Supreme Court of the United States to issue

a writ of certicrari in the cause is Judicial Code, Section

237(b), as amended February 13, 1925, Chap. 229, Sec.

1, 43 Stat. 937; January 31, 1928, Chap. 14, Sec. 1, 45

Stat. 54, and April 26, 1938, Chap. 440, 45 Stat. 466

(U. S.C. A., Title 28, Sec. 344).

2. Date of Judgment.

The decision of the District Court of Appeal sought to

be reviewed was rendered on the 18th day of August,

1947. [R. 82.] Petitioner did not file a petition for

rehearing but did file, within the time allowed by the

“Rules on Appeal” governing petitions for hearing in the

Supreme Court of the State of California following de-

cision by the District Court of Appeal, a petition for a

hearing in the Supreme Court of the State of California,

which petition was considered by the Court and denied

by it on the 16th day of October, 1947. [R.96.] The

judgment then became final. A petition for a writ of cer-

tiorari presented to this Honorable Court within three

months thereafter is in time.

American Ry. Exp. Co. v. Levee, 263 U.S. 19, 21,

44S. Ct. 11, 68 L. Ed. 140.

—xy

3. Cases Believed to Sustain the Jurisdiction of the

Supreme Court of the United States.

The Refusal of the California District Court of Appeal to

Give Full Faith and Credit to the Judgment of the Utah

Court Because of Its Nature Is a Ruling Upon a Federal

Right Subject to Review by This Court.

“The refusal of the Tennessee Supreme Court to

give credit to that judgment because of its nature

is a ruling upon a federal right and the sufficiency

of the grounds of denial is for this court to decide.

Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, 431,

88 L. Ed. 149, 157, 64 S. Ct. 208, 150 A. L. R. 413,

and cases cited.”

Barber v. Barber, 323 U. S. 77, 89 L. Ed. 82.

II.

“The United States Supreme Court Is the Final Arbiter of

Questions Arising Under the Full Faith and Credit

Clause.”

Morris v. Jones, U. S. S. C. Adv. Op., Vol. 91,

No. 6, pp. 399, 403;

Williams v. No. Carolina, 317 U. S. 287, 302.

ITI.

The Supreme Court of the State of California Having Re-

fused to Grant a Hearing Therein, the Judgment of the

District Court of Appeal of the State of California Is

a Final Judgment.

The existence of jurisdiction is to be tested by the sub-

stantial operation of the judgment.

United States v. Thompson, 251 U. S. 407, 412,

64 L. Ed. 333, 341.

-— }

IV.

Certiorari and Not Appeal Is the Correct Procedure Under

the Facts Presented Here.

“Certiorari and not appeal is the proper method

of obtaining a review of the state court’s decision

by the Supreme Court of the United States on the

ground that full faith and credit has not been given

to a judgment of the courts of another state.”

Morris v. Jones, U. S. S. C. Adv. Op., Vol. 91,

No. 6, Page 399 (Syl. 1).

4. Grounds Upon Which It Is Contended the

Questions Involved Are Substantial.

At the outset your petitioner desires to direct the at-

tention of this Honorable Court to the fact that the ques-

tions presented herein are of nationwide importance and

are very similar in certain aspects to one or more of the

questions presented in Martin V. B. Coe v. Katherine C.

Coe, 5S. C. U. S., October Term, 1946, No. 958 (Certiorari

granted March 3, 1947, U. S. S. C. Adv. Op., Vol. 91,

No. 9, Page 689), and to the fact that in very similar

matters presenting not identical but closely related points,

certiorari was granted by this Honorable Court on No-

vember 24, 1947, in the matter entitled Louis Kreiger v.

Helene Kreiger, No. 371, October Term, 1947, and that

subsequently certiorari has been granted in Joseph Estin

v. Gertrude Estin, No. 139, October Term, 1947, upon

rehearing following a denial of certiorari on October 13,

1947,

This case presents a question of fundamental impor-

tance under the Full Faith and Credit Clause in refer-

ence to the judgment of one state predicated upon a con-

tract between husband and wife concerning “payments for

the support of the wife” and the construction and inter-

pretation of said judgment by the courts of a sister state,

which construction and interpretation were based upon its

laws and not upon the laws of the state rendering the

judgment.

There is no question here as to the validity of the Utah

judgment as both petitioner and respondent have at all

times proclaimed its validity. The Court had personal

jurisdiction over both parties and therefore had the

power to enter a valid personal judgment. Pennoyer v,

Neff, 95 U. S. 714. wii

The action of the California courts here, if allowed to

stand, would establish a precedent whereby all courts in

all states could circumvent the operation of the Full Faith

and Credit Clause by simply stating that “We do not

refuse to consider the judgment of the sister state but we

do propose to declare that what has been adjudicated else-

where is what we declare was there adjudicated, and that

our laws will be applied in determining same.” The ex-

treme danger of any such precedent is apparent here for

your petitioner is protected under the Constitution and

laws of the State of Utah and particularly by the provi-

sions of Section 1212, Comp. Laws, 1907, of that state,

if all states are required to give full faith and credit to

the judgment rendered by Utah in his favor, in this, that

from time to time as circumstances or conditions warrant

it he may appear before the courts of that state and seek

7 —13—

a modification as provided by its laws of the support pro-

visions embodied in the divorce decree, whereas this right

has been completely and effectively and finally, except for

the intervention of this Honorable Court, denied him by

the courts of California, in construing said decree in ac-

cordance with its laws, so as to make the alimony pay-

ments provided for therein and declared to be “for the

support of the wife” not payments for the support of the

wife at all but, on the contrary, “an award to her of a

life annuity as long as she did not remarry, given to the

wife as part of a property settlement contract. (Parker

v...Parker, 193 Cal. 478, 480, 481, 225 P. 447.)” [R.

91-92. }

II.

This Honorable Court has been called upon, heretofore,

to consider a similar failure of the courts of California

to grant full faith and credit to the decree of a sister

state in a separate maintenance action and, finding the

question substantial, this Honorable Court assumed juris-

diction and after disposing of the main contention of the

Supreme Court of California by the following state-

ment :

“But conceding without deciding that the California

law is as asserted the proposition of fact upon which

the argument rests amounts simply to denying all

effect to the Illinois decree’ ;

then declared:

“From these conclusions it necessarily follows that

the issue presented in this action for divorce was

——x

identical with that decided in the suit in Illinois for

separate maintenance. This being the case it follows

that the Supreme Court of California, in affirming

the judgment of divorce, failed to give to the decree

of the Illinois court the due faith and credit to which

it was entitled and thereby violated the Constitution

of the United States.” (Emphasis added.)

Harding v. Harding, 198 U. S. 317, 340, 341, 49

L. Ed. 1076.

ITI.

Found substantial also by this Honorable Court was

the questions presented in Bates v. Bodie, 245 U. S. 520,

62 L. Ed. 444, where the appellant successfully contended

that the failure of the courts of Nebraska to observe that

“the findings and decree” of the courts of Arkansas in

reference to alimony constituted a denial to him of rights

guaranteed under the Constitution of the United States.

This Honorable Court, in sustaining his contentions, said:

“Our rule is that an estoppel by judgment is ‘not

only as to every matter which was offered and re-

ceived to sustain or defeat the claim or demand, but

as to any other admissible matter which might have

been offered for that purpose.’ Cromwell v. Sac

County, 94 U. S. 352, 24 L. Ed. 197.”

Bates v. Bodie, 245 U. S. 520, 525, 62 L. Ed. 444,

449.

IV.

The failure to apply said “rule” was recently found to

present a substantial question in Heiser v. Woodruff, 326

U. S. 726, where this Honorable Court said:

al —15—

“In general a judgment is res adjudicata not only as

to all matters litigated and decided by it, but as to

all relevant issues which could have been but are not

raised and litigated in the suit.”

Heiser v. Woodruff, 326 U. S. 726, 735, 90 L.

Ed. 970, 977.

Noted as substantial also were the similar questions

presented in Davis v. Davis, 305 U. S. 32, 83 L. Ed. 26,

where this Honorable Court declared that each state is

required to give not some but full faith and credit to judi-

cial proceedings of other states.

VL.

The questions presented must be regarded, too, as be-

ing substantial when viewed in the light of the rule stated

by this Honorable Court in Williams v. North Carolina,

325 U. S. 226, 228, 89 L. Ed. 1577, 1581:

“In short the Full Faith and Credit Clause puts the

Constitution behind a judgment instead of the too

fluid, ill defined concept of comity.”

The failure of the courts of California to observe that

it was declared in that case that the correct procedure

under the Constitution, for the collection or enforcement

of a judgment recovered in another state, was to first sue

on. it and recover a judgment on it; not only presents a

substantial question but invites the supervision of this

Honorable Court here.

—16—

VIL.

A like question most certainly is presented when we

note that, notwithstanding the fact that the Supreme

Court of Utah has declared that “. . . the court may

make such order respecting the property and the mainte-

nance of the wife and children, as is just and equitable,

and such order and decree may be made to continue in

force after his decease . . .” (Emphasis added.)

Murphy v. Moyle, 17 Utah 113, 120, 53 Pac. 1010; which

rule said court expressly upheld in Beesley v. Badger, et

al,. 66 Utah 194, 199; that the courts of California in con-

struing the final judgment of the Utah Court herein ex-

pressly declared that “The legal obligation imposed by

law to support the wife by payment of permanent alimony

come to an end upon the death of either party.” [R. 91],

and that therefore the judgment of the Utah Court pro-

viding for “payments for the support of the wife” [R.

91] ‘ “were not in the nature of alimony but were by way

of property settlement’” [R. 91] and “It was an award

to her of a life annuity so long as she did not remarry

.” [R. 91.)

VIII.

If this Honorable Court is unable to say that every

question presented has been foreclosed by prior decisions

and are clearly not debatable, it cannot be said that no

question of substance is presented.

Chesebro v. Los Angeles County Flood Control

District, 306 U. S. 459, 463;

Hamilton v. University of California, 293 U. S.

245, 258.

—

5. Stage in Proceedings and Method of Raising

Federal Question.

When the action was called for trial in the Superior

Court your petitioner, the defendant therein, moved to

dismiss because of the lack of jurisdiction [R. 75-76] by

reason of the fact that the agreement sued upon had be-

come merged in the Utah judgment. [R. 76.]

The respondent opposed such motion and argued that

notwithstanding the admitted fact that the agreement

sued upon had been attached to plaintiff’s complaint in

the Utah action, and expressly made a part thereof; and

the fact that by the prayer thereto plaintiff sought a de-

cree of divorce and judgment that the said agreement be

confirmed, and for “equitable relief” [R. 48]; and not-

withstanding that the Utah court, in its Findings of Fact

expressly made said agrement “. . . a part of these

findings of fact” [R. 59]; and included in its “Conclu-

sions of Law” a recital that said agreement “be and is

hereby confirmed and approved” [| R. 60]; and embodied in

its decree a declaration that said agreement “. . . is

hereby confirmed and approved” [R. 61]; that said agree-

ment had not merged in said judgment.

The motion of your petitioner was denied upon the

ground that the Utah decree was not enforceable by con-

tempt proceedings [R. 77] and the Superior Court pro-

ceeded to enter a money judgment under the agreement in

favor of respondent and against your petitioner [R. 78:

37-38]; notwithstanding that as declared by the Su-

eniliien

preme Court of Utah in Beesley v. Badger, 66 Utah 194,

respondent’s claim for unpaid weekly support payments

was, under said decree, “. . . upon the same footing

as an ordinary money judgment(s) and may be enforced

in the same manner that ordinary money judgment(s)

may be enforced.” (Page 199.)

Your petitioner appealed from the said judgment and

in both his opening and closing briefs upon appeal and

in his petition to the Supreme Court of the State of Cali-

fornia following decision by the District Court of Appeal,

urged said points and protested that rights guaranteed to

him under the Constitutions and Laws of both Utah and

California and under the Constitution of the United

States had been denied him.

Your petitioner, upon oral argument before the Dis-

trict Court of Appeal, argued at length that his rights

guaranteed to him by said State Constitutions and by the

Constitution of the United States had been denied to him;

and said Court, in response to your petitioner’s request

then made, did, in its decision, expressly pass upon the

question of the violation of your petitioner’s rights under

the Constitution of the United States, which Court, how-

ever, there held, without the citation of authority, that

“Appellant’s contentions . . . cannot be sustained.”

[R. 91.] The Supreme Court, after considering the same

matters by a divided court then refused to grant your

petitioner a hearing.

—

—19—

THE QUESTIONS PRESENTED.

1. It being conceded that there is no question here of

the validity of the divorce decree of the Utah court; may

the court of California refuse to give full faith and credit,

as required by the provisions of Article IV, Section 1, of

the Constitution of the United States to that decree, be-

cause, in the opinion of the courts of California, said de-

cree could not be enforced in California “by contempt pro-

ceedings” [R. 87]?

2. May the courts of California construe the divorce

decree of the Utah court, providing for weekly payment

“for the support of the wife” as not being “in the nature

of alimony” [R. 91] but as being “an award to her of a

life annuity. . . .” [R. 91] “given to her as part of a

property settlement contract” [R. 92]; which construction

is predicated upon the declaration, as long held by the

courts of California, that “The legal obligation imposed

by law to support the wife by payment of permanent ali-

mony comes to an end upon the death of either party” [R.

91]; which contention is expressly contrary to the laws

of not only Utah but also of such states as Massachusetts,

West Virginia, Washington, Oregon, Arizona and Min-

nesota; without violating the provisions of the Full Faith

and Credit Clause of the Constitution of the United

States ?

3. May the courts of California hold, without violating

said Clause, that the “Property Settlement and Separa-

—~»

tion Agreement” presented to the Utah court and by it

expressly made a part of its Findings of Fact and ex-

pressly confirmed and approved by it in its decree “was

not incorporated in nor made an operative part” of said

decree [R. 89] and did not merge therein, because said

decree was in California “wholly insufficient to support

contempt proceedings” [R. 89], and, in California, “legally

insufficient to warrant the docketing of a money judg-

ment against plaintiff’ [R. 89]; particularly when con-

sidered in the light of the fact that the Supreme Court

of Utah, relying on Bates v. Bodie, 245 U. S. 520, 62

L. Ed. 444, and other decisions cited, has held in Smith

v. Smith, 77 Utah 60,56“. . . that the final judgment

in an action granting a divorce settles all property rights

of the parties, and ts a bar to action afterwards by either

of the parties to determine the question of alimony or any

property rights which might have been settled by such

judgment” (emphasis added); and has held in Beesley

v. Badger, et al., 66 Utah 194, 199, that past due and un-

paid installments of alimony described in a decree for

alimony “. stand(s) upon the same footing as

ordinary money judgments and may be enforced by exe-

cution in the same manner that ordinary judgments may

be enforced”? (Emphasis added.)

4. Did the District Court of Appeal of the State of

California err in expressly holding that the denial to your

petitioner of the right existing in him, under the Consti-

tution and Laws of the State of Utah, and particularly

under the provisions of Section 1212, Comp. Laws, 1907,

of that state; to appear before the courts of that state, as

circumstances required it, and seek modification of the

support payments embodied in the divorce decree; did not

—

deny him rights guaranteed to him by the provisions of

subdivision 1 of the Fourteenth Amendment to the Con-

stitution of the United States and by the provisions of

| Section 13, Article I, of the Constitution of the State

of California.

5. May, under the Full Faith and Credit Clause, the

| question of payments for the support of the wife be re-

| litigated in California following the presentation of that

question by both husband and wife to the Utah Court in a

| divorce action between them in which a final judgment

was entered, that as shown by the Findings of Fact, the

Conclusions of Law and the Decree, expressly considered

and determined that question?

REASONS RELIED ON FOR THE GRANTING

OF THE WRIT.

The District Court of Appeal of the State of California

has decided a Federal question of substance which is of

nationwide importance in this, that it concerns the effect

of agreements between husband and wife in reference to

their property and of a division thereof and of separation

agreements containing provisions “for the support of the

wife,” when such agreements are presented by the parties

thereto to a court of competent jurisdiction; which court

proceeds to determine rights thereunder and then causes

the result thereof to be embodied in a decree of divorce,

which decree, after becoming final, is duly presented in

the courts of a sister state as a bar, under the Constitution

of the United States, to an attempted relitigation of mat-

ters expressly determined, in the decree of the other

state.

—

This Honorable Court has granted certiorari in ‘the

matter entitled Martin V. B. Coe v. Katherine C. Coe,

No. 958, October Term 1946, where one of the questions

presented is clearly quite similar to one of the questions

here. Petitioner there states under the heading “Reasons

for Granting the Writ,” in part as follows:

“3. This case presents a question of importance

under the Full Faith and Credit Clause with respect

to the property incidents of marriage which has not

yet been decided by this Court. The Nevada judg-

ment at the instance of respondent dealt with ques-

tions of support and the property rights of the par-

ties. The decree of the Court approved and adopted

a contract entered into by the parties and therefore

had the power to enter a valid personal judgment.

Pennoyer v. Neff, 95 U.S. 714. . . . Thus, in

the instant case, the Nevada judgment, made with

both parties before the Court, finally determining

questions of support and property, is held void,

thereby depriving petitioner of the benefits of the

Nevada judgment, which finally disposed of such is-

sues. Cf. Yarborough v. Yarborough, 290 U. S.

202.” (Petition for a Writ of Certiorari, pp. 12 and

13.)

Petitioner in the Coe case also points out that

“In the second Williams case, supra, at pages 233-

234, this Court stated: ‘The burden of undermining

the verity which the Nevada decrees import rests

heavily upon the assailant. But the respondent in

this case has been made to bear no such burden. On

the contrary it has been the petitioner who has been

made to bear the burden of the Nevada decree, the

ll =23—

effect of which has been ignored by the Court, appar-

ently upon the theory that, since it is a Nevada di-

vorce, it is ipso facto invalid.’” (Pet. pp. 9 and 10.)

As there, so here, the California Court has ignored the

effect of the Utah decree apparently upon the theory that

it is insufficient to sustain “contempt proceedings” in Cali-

fornia and is insufficient to justify the “docketing of a

money judgment in California.”

Not only has the effect been ignored by the California

Court, but the decree of the Utah Court has in effect

been declared void, upon the theory that “payments for

the support of the wife” cannot be such but are an “award

of a life annuity,” which theory is predicated upon the

contention that in California alimony payments cease upon

the death of either husband or wife. The fact that the

Supreme Court of Utah has held in Murphy v. Moyle, 17

Utah 113, 120, 53 Pac. 1010, that “. . . the Court

may make such order respecting the property and the

support and maintenance of the wife and children, as is

just and equitable, and such order or decree may be made

to continue in force after his decease” (Emphasis added)

(approved in Beesley v. Badger, 66 Utah 194, 199), has

been ignored by the California Court in construing the

decree of the Utah Court. See Prime v. Prime, 172 Ore.

34, 49, 50, 13 P. (2d) 550, where upon the considera-

tion of a Property Settlement and Separation Agreement

which had been “approved as fair in the divorce decree”

by the trial court the Supreme Court, after holding that

even though the support provisions were included in the

same instrument with the property settlement provisions:

that they “are to be deemed separable” and to “be viewed

in the nature of alimony,” then proceeds to describe a

“conflict of authority” as to “whether the court has the

power to extend! such payments beyond the lifetime of the

defendant.” The Court, after setting forth a list of cases

from Utah, Massachusetts, West Virginia, Washington

and Minnesota, which it states “support the view that a

decree unsupported by contract may validly impose an

obligation to pay alimony which will bind defendant’s es-

tate”; sets forth a list of cases from California and New

York and a reference to C. J. S. (“citing authorities on

both sides’) in support of the contention “that the court

cannot by divorce decree extend the obligation of support

in the nature of alimony so as to bind the husband’s

estate.”

HL.

This Honorable Court has also granted certiorari on

November 24, 1947, in Louis Kreiger v. Helene Kreiger,

No. 371, October Term 1947, and shortly thereafter, upon

rehearing, granted certiorari in Joseph Estin v. Gertrude

Estin, No. 139, October Term 1947. The questions pre-

sented in both of these cases are not identical but are

closely related matters to certain of those presented here.

Petitioner states, in the Krieger case, under the heading

“Reasons for Granting the Writ”:

“2. The decisions in New York made prior to the

decision in Williams v. North Carolina, 317 U. S.

287, held that a valid divorce decree ended the right

of a woman to collect alimony from her former hus-

band under a pre-existing separation decree and are

of the same type as respect the manner in which the

divorce was obtained, as are the Pennsylvania cases

cited by the majority opinion of this Court in Esen-

wen v. Commonwealth of Pennsylvania (supra), as

fixing the law of that Commonwealth.” (Petition for

Certiorari, pp. 6, 7.)

—

The difference here is that the California Court has en-

tered judgment for alimony under a contract providing

for such, existing prior to the decree of divorce, granted

the husband in the State of Utah, which decree expressly

determined the rights of the wife as to alimony.

IV.

The decision asked to be reviewed here is contrary to

the decisions of this Honorable Court in the following

cases :

Bates v. Bodie, 245 U. S. 520, 38 S. Ct. 182, 62

L. Ed. 444;

Morris v. Jones, U. S. Sup. Ct. Adv. Op., Vol. 91,

No. 6, pp. 399, 401;

Williams v. North Carolina, 317 U. S. 287, 302,

87 L. Ed. 278, 288;

Magnolia Petroleum Co. v. Hunt, 320 U. S. 430,

439, 88 L. Ed. 149, 155;

Riley v. New York Trust Co., 315 U. S. 343, 348,

86 L. Ed. 885, 891;

Davis v. Davis, 305 U. S. 32, 88 L. Ed. 26:

Sovereign Camp W. O. W. v. Bolin, 305 U. S.

66, 83 L. Ed. 45;

Barber v. Barber, 323 U. S. 77, 89 L. Ed. 82;

Hamer v. New York Railways Co., 244 U. S. 266,

61 L. Ed. 1125;

Heiser v. Woodruff, 326 U. S. 726, 735, 90 L. Ed.

970, 977;

Williams v. North Carolina, 325 U. S. 226, 229,

89 L. Ed. 1577, 1581;

Harding v. Harding, 198 U. S. 317, 388, 49 L.

Ed. 1066, 1075;

Barber v. Barber, 21 Howard (62 U.S.) 582,

oo?

This Honorable Court has recently said in Barber v,

Barber, 323 U. S. 77, 89 L. Ed. 82:

“The refusal of the Tennessee Supreme Court to

give credit to that judgment because of its nature

is a ruling upon a federal right, and the sufficiency

of the grounds of denial is for this Court to decide.

Magnolia Petroleum Co. v. Hunt, 320 U. S. 430,

443; 88 L. Ed. 149, 157; 64S. Ct. 208; 150 A. L. R.

413 and cases cited.”

Here, California has refused to give credit to the Utah

decree not only because of its nature but upon the ground

that contempt proceedings cannot be sustained thereunder

in California, and because the decree provides for con-

tinuing alimony payments following the death of the

husband, which payments, while clearly allowable in Utah,

are, as viewed by the California Court, non-allowable in

California.

This Honorable Court has also said, when speaking of

the Full Faith and Credit Clause, that it is not only ef-

fective in requiring that a judgment of one state “Con-

trols in other states to the same extent that it does in the

state where rendered” but what is of even greater im-

portance here:

“This is true even though the cause of action

merged in the judgment could not be enforced in the

state where the enforcement of the judgment is

sought.”

Riley v. New York Trust Co., 315 U. S. 343, 348,

349, 86 L. Ed. 885, 891.

-—

—27—

A final judgment of a court having jurisdiction of the

parties and of the subject matter operated as res adjudi-

-cata. Morris v. Jones, U. S. Sup. Ct. Adv. Op., Vol. 91,

No. 6, pp. 339, 402.

As stated by Mr. Justice Brandeis, when speaking for

this Honorable Court in Hamer v. New York ‘Railways

Co., 244 U. S. 266, 61 L. Ed. 1125:

“If there is any one principle of Jaw settled beyond

all question it is this, that whensoever a cause of

action, in the language of the law, transit in rem

judicatum, and the judgment thereupon remains in

full force unreversed the original cause of action is

merged and gone forever.”

Generally, too, a judgment is res adjudicata as to all

matters which could have been litigated therein. Heiser

v. Woodruff, 326 U. S. 726, 735, 90 L. Ed. 970, 977;

Magnolia Petroleum Co. v. Hunt, 320 U. S. 430; Crom-

well v. County of Sac, 94 U.S. 351.

Relying upon Bates v. Bodie, 245 U. S. 520, and other

cases cited, the Supreme Court of Utah has applied this

rule in Smith v. Smith, 70 Utah 60, 66, in determining

whether a decree of divorce constituted a bar to a subse-

quent attempt to collect alimony. We quote from page

66 as follows:

“In Roe v. Roe, 52 Kansas 724, 35 Pac. 808, 39

Am. St. Rep. 367, it is said that the final judgment

in an action granting a divorce settles all property

rights of the parties, and is a bar to action after-

wards brought by either of the parties to determine

the question of alimony or any property rights which

might have been settled by such judgment. To the

Sees

—28—

same effect are the following: Muckenberg v. Hol-

ler, 29 Ind. 139, 92 Am. Dec. 345; Behriey v. Behr-

ley, 93 Ind. 255; Hardin v. Hardin, 38 Texas 617;

Taylor v. Taylor, 54 Or. 560, 103 Pac. 525; Bates

v. Bodie, 245 U. S. 520, 38 S. Ct. 182, 62 L. Ed. 444,

L. R. A. 1918C, 355; Allen v. Allen, 159 Cal. 197,

113 Pac. 160; Barnett v. Barnett, 9 N. B. M. 205, 50

P. 337.”

Smith v. Smith, 77 Utah 60, 66.

VI.

The California Court has failed to note that it has been

said that courts cannot alter, amend or repeal judicial pro-

ceedings of another state without violating the Full Faith

and Credit Clause of the Federal Constitution. Dry v.

Rice, 147 Va. 331, 137 S. E. 473.

It has also been held that courts should not determine

what part of a judgment of a court of another state will

be effective and what part not; if such a judgment is

regular on the face of the record it must be given full

effect in all its terms. Caruthers v. Corbin, 38 Ga. 75.

This rule has been expressly violated by the Court below

as has been heretofore shown.

This Honorable Court has held that upon the deter-

mination of a controversy in accordance with the laws

of another state, it is required that full faith and credit

be given to the judgment of that state construing its own

laws. Sovereign Camp W. O. W. v. Bolin, 305 U. S. 66,

83 L. Ed. 45. Utah has expressly recognized that rule in

Lawson v. Woodmen of the World, 88 Utah 267, 53 P.

(2d) 432. The California Court has, however, failed to

recognize that rule here but has, on the contrary, con-

strued the judgment of the Utah Court in accordance with

California law and expressly contrary to the laws of Utah

as existing and as declared by its Supreme Court.

The construction and interpretation of a judgment are

governed by the law of the state where it was rendered.

In re National Surety Co., 284 N. Y. 593, certio-

rari denied, Laughlin v. Pink, 311 U. S. 707,

85 L. Ed. 459;

Shreve Furniture Co. v. Manufacturers Assn., 168

Ark. 756, 271 S. W. 954;

Union Fire Ins. Co. v. Hansen, 237 Mo. App.

1110, 180 S. W. (2d) 265;

Swift & Co. v. Boston & M. R. R., 82 N. H. 170,

131 Atl. 441.

VIL.

The doctrine of res adjudicata is not a technical de-

fense. It is a rule of fundamental and substantial jus

tice, of public policy and peace and must be enforced by

the courts.

Hart Steel Co. v. Railway Supply Co., 224 U. S.

294, 61 L. Ed. 1148;

Sun Indem. Co. v. United States (C. C. A. 3d),

91 F. (2d) 120;

United States v. United States Fidelity and Guar-

anty Co. (C. C. A. 10th), 106 F. (2d) 804.

Conclusion.

Your petitioner presents here highly important prob-

lems in reference to property rights and the right of

maintenance arising out of the marriage relation as well

as important questions affecting all States in reference to

what sort of full faith and credit shall, under the Con-

oe LS

stitution of the United States, be given decrees of sister

States dealing with such matters, and presents an im-

portant question of denial of rights under the Four-

teenth Amendment to that Constitution. See article

entitled “The Divorce Snafu” appearing in Collier’s, De-

cember 13, 1947, which speaks of “. . . enormous con-

fusion and hardship afflicting large numbers of Americans

all the time” which, as seen by the publication’s editors,

arise “because we have 48 different state divorce laws.”

To the question there asked: “Can anything be done

about it?” your petitioner respectfully suggests that there

is an obvious answer and that is that each State in all

cases, where fraud and collusion are not present, obey the

Constitution by giving full faith and credit to the di-

vorce decrees of other states, and that in those cases

where there is a failure to do so; that this Honorable

Court, upon behalf of the People of the United States,

exercise its superior jurisdiction and require obedience,

by each state, of the will of the People as expressed in

their Constitution.

Petitioner prays that this petition for a writ of cer-

tiorari be granted, and that the judgment below be re-

versed.

Respectfully submitted,

Hiram T. KELLOGG,

Attorney for Petitioner.

LAWRENCE M. CAHILL,

Of Cowmsel.

IN THE

Supreme Court of the United States

Octoser Term, 1947

Frep J. HowarTH,

Petitioner,

US.

Mae K. Howarth,

Respondent.

BRIEF IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI.

Your petitioner respectfully presents this brief in sup-

port of his petition for a writ of certiorari directed to the

District Court of Appeal of the State of California, Sec-

ond Appellate District, Division One, to review the judg-

ment of that Court rendered in the case entitled “Fred J.

Howarth v. Mae K. Howarth.”

Opinions of the Court Below.

The opinion of said District Court of Appeal is reported

in 81 Advance California Appellate Reports at page 324.

Grounds of Jurisdiction.

The jurisdiction of this Honorable Court is invoked

under Section 237 (b) of the Judicial Code (28 U. S. C.

A. Sec. 344 (b).) The decision of the said District Court

of Appeal sought to be reviewed, was rendered on the

—

allies

18th day of August, 1947. [R. 82.] Within the time

allowed by the “Rules on Appeal,” adopted by the Judicial

Council of the State of California on March 30, 1943,

your petitioner filed a petition for a hearing in the Su-

preme Court of the State of California, which petition

was considered by that Court, and by a divided Court (2

of the Justices voting for a hearing) was denicd on the

16th day of October 1947. [R. 96.] The judgment then

became final. A petition for a writ of certiorari presented

to this Honorable Court within three months thereafter is

in time.

American Ry. Express Co. v. Levee, 263 U. S. 19,

21; 68 L. Ed. 140.

Statement of the Case.

A complete statement of the case has been made in the

petition under the headings: “Summary Statement of the

Matter Involved” p. 2; “Petitioners Contentions” p.

7; “Respondents Contentions” p. 8. Therefore in

the interest of brevity and because of the fact that the

petition and this brief are to be bound under a single

cover, the facts of the case will not be repeated here,

other than to say that the facts presented disclose a fail-

ure and refusal by the State of California, to give full

faith and credit to a final decree of divorce duly rendered

and existing in the State of Utah, determining, not only

that a divorce be granted to your petitioner, but also de-

termining property rights, custody of a minor child, and

payments for the support of the wife, which denial was

based upon the grounds that because the decree was “in-

sufficient to support contempt proceedings” in California

[R. 89]; and was “legally insufficient to warrant the

docketing of a money judgment” [R. 89] in California;

—

= oe

and because under California law “The legal obligation

imposed by law to support the wife by payment of per-

manent alimony comes to an end upon the death of either

party” [R. 91], that the “Property Settlement and Sepa-

ration Agreement” [R. 50, 55], containing provisions for

“weekly payments . . . for the support of the wife”

[R. 53]; did not become “incorporated in nor made an

operative part” [R. 89] thereof, notwithstanding the fact

that the totally uncontradicted evidence disclosed the fol-

lowing:

(a) That the document entitled “Property Settlement

and Separation Agreement,” which contained pro-

visions “for the support of the wife” and for the

custody, education and support of the children of

the parties was in its entirety attached to plaintiff’s

complaint in the Utah divorce action and by re-

ference expressly made a part thereof;

(b) That the Utah Court made a finding that said

agreement was “By reference made a part of these

findings of fact.”, and a further finding that “Such

agreement is just and proper in its terms.”

of law a recital that said agreement “Be and is

hereby confirmed and approved” ;

(d) That the Utah Court incorporated in its decree an

express declaration “That the property settlement

and agreement . . . is hereby confirmed and

approved.” (Emphasis added.)

These conclusions were reached by the California Court

in construing the Utah decree in accordance with the laws

and decisions of California, and in disregard of the fact

that the Supreme Court of Utah has held in Murphy v.

aan

Moyle, 17 Utah 113, 120, 53 Pac. 1010, that “. . . the

court may make such order respecting the property and

the support and maintenance of the wife and children, as

is just and equitable, and such order or decree may be

made to continue in force after his decease” (emphasis

added), which holding was expressly upheld by that court

in Beesley v. Badger, 62 Utah, 194, 199.

It was necessary also for the California Court, in reach-

ing such conclusions to ignore the declaration of the policy

of the People of Utah, in reference to such matters,

which as stated by its Supreme Court in Smith v. Smith,

77 Utah 60, 66 as follows:

“

the final judgment in an action granting

- divorce settles all property rights,of the parties and is

a bar to action afterwards brought by either of the

parties to determine the question of alimony or any

property rights which might have been settled by

such judgment.”

The facts presented also disclose a denial by the Cali-

fornia Court of the right existing in him under the Con-

stitution and laws of Utah and particularly under the pro-

visions of Section 1212, Comp. Laws 1907, to appear be-

fore the Courts of Utah and ask that they modify the

support provisions in the divorce decree granted to him,

which right has bee nexpressly declared to exist, by the

Supreme Court of that State, in Bazzo v. Bazzo, 425

Utah 625; and it has been held in Barraclough v. Barra-

clough, 100 Utah 196, that the Courts do not lose the

power to modify their decrees if the Court adopts the

—

suggestions of the parties to a divorce action regarding

alimony.

Your petitioner contends that either the denial of such

rights or of the rendering them ineffective by the Cali-

fornia Court constitute not only a violation of the pro-

visions of Article IV, Section I of the Constitution of

the United States, but also a denial of rights guaranteed

by the provisions of subdivision I of .the Fourteenth

Amendment to the Constitution of the United States.

Specifications of Error.

The Court below erred:

In failing to give full faith and credit to the Utah

decree;

In holding that the Utah decree was not a bar to

the recovery by respondent of a money judgment

under the terms of the “Property Settlement and

Separation Agreement” [R. 87];

In holding that the “Property Settlement and

Separation Agreement” had not been made an

operative part of the divorce decree, by the Utah

Court [R. 86];

In holding that the “Property Settlement and

Separation Agreement had not merged in said

decree [R. 86, 87];

In holding that your petitioner’s contention that he

may not be deprived of the right to have the sup-

port provisions of the decree of the Utah Court

modified as provided by the Constitution and Laws

mn)

PTS tte eG

10.

of the State of Utah, without denying to him

rights guaranteed to him under the Constitution

of the United States, as well as under the Con-

stitution of the State of California; “cannot be

sustained” [R. 90];

In being in any manner concerned with the avail-

ability of contempt of Court proceedings in Cali-

fornia, as a means of enforcing the Utah decree

[R. 89];

In holding that “The legal obligation imposed by

law to support the wife by the payment of perma-

nent alimony comes to an end upon the death of

either party [R. 91];

In holding that the words “The weekly payments

provided by paragraph 12 are for the support of

the wife” [R. 96], are not payments for the sup-

port of the wife [R. 91]; but “ . . was an

award of a life annuity so long as she did not

remarry given to her as part of a property settle-

ment contract” [R. 91, 92];

In failing to find that the Utah decree was res

judicata and entitled to full faith and credit as

to all of the following:

a. The termination of the marriage relation;

b. The division of the property;

c. The custody of the minor child;

d. Payments for the support of the wife.

In affirming the judgment of the Superior Court

of the State of California in and for the County

of Los Angeles.

a iy A

Summary of the Argument.

POINT ONE.

THE CALIFORNIA COURT HAS FAILED TO GIVE TO THE

DECREE OF THE UTAH COURT THE DUE FAITH AND CREDIT

TO WHICH IT IS ENTITLED AND HAS THEREBY VIOLATED

THE CONSTITUTION OF THE UNITED STATES.

POINT TWO.

THE FULL FAITH AND CREDIT CLAUSE REQUIRES THE

JUDGMENTS OF THE COURTS OF ONE STATE BE GIVEN THE

SAME FULL FAITH AND CREDIT IN SISTER STATES AS THEY

HAVE BY LAW OR USAGE IN THE STATE GRANTING THE

JUDGMENT.

POINT THREE.

CLAIMS UNDER THE “PROPERTY SETTLEMENT AND SEPA-

RATION AGREEMENT” MAY NOT BE RE-LITIGATED IN CALI-

FORNIA WITHOUT VIOLATING THE PROVISIONS OF THE

CONSTITUTION OF THE UNITED STATES.

POINT FOUR.

CALIFORNIA MAY NOT DENY FULL FAITH AND CREDIT

TO THE UTAH DECREE ON THE THEORY THAT IT MAY NOT

BE SUFFICIENT TO SUSTAIN CONTEMPT OF COURT PRO-

CEEDINGS IN CALIFORNIA.

POINT FIVE.

THE “PROPERTY SETTLEMENT AND SEPARATION AGREE-

MENT” MERGED IN THE UTAH DECREE AND ALL CLAIMS OR

RIGHTS THEREUNDER ARE NOW SO MERGED IN EVERY

OTHER STATE.

POINT SIX.

UNDER THE LAWS OF UTAH THE SUMS DESCRIBED IN

THE CALIFORNIA JUDGMENT ARE A MONEY JUDGMENT

ENFORCEABLE THERE BY EXECUTION.

A OTT ICR re

POINT SEVEN.

THE PROVISIONS OF PROPERTY SETTLEMENT AND SEPA-

RATION AGREEMENT FOR WEEKLY INSTALLMENTS PAYABLE

TO AND “FOR THE SUPPORT OF THE WIFE” WAS A SEVER-

ABLE ONE IN THE NATURE OF ALIMONY.

POINT EIGHT.

THE COMMON LAW RULE, THAT THE OBLIGATION TO

PAY ALIMONY TERMINATES UPON THE DEATH OF EITHER

HUSBAND OR WIFE, IS NOT THE LAW OF UTAH AND THE

CALIFORNIA COURT HAS CONSTRUED THE UTAH DECREE

UNDER THE COMMON LAW RULE.

POINT NINE.

THE UTAH DECREE IS RES JUDICATA, NOT ONLY AS TO

ALL MATTERS LITIGATED THEREIN BUT AS TO ALL MAT-

TERS THAT COULD HAVE BEEN LITIGATED THEREIN.

—39—

ARGUMENT.

POINT ONE.

The California Court Has Failed to Give to the Decree

of the Utah Court the Due Faith and Credit to

Which It Was Entitled and Has Thereby Vio-

lated the Constitution of the United States.

This Honorable Court has long ago declared such vio-

lation under very similar circumstances. In determining

whether the separate maintenance decree entered in

Illinois upon the stipulation of the parties, was conclusive

in the Courts of California in a subsequent divorce ac-

tion this Honorable Court said:

“But conceding without deciding that the Cali-

fornia law is as asserted, the proposition of fact upon

which the argument rests amounts simply to denying

all effect to the Illinois decree.”

Harding v. Harding, 198 U. S. 317, 338, 49 L.

Ed. 1066, 1075.

Elsewhere in its decision we note the following:

“This being the case it follows that the Supreme

Court of California, in affirming the judgment of

divorce, failed to give to the decree of the Illinois

Court the due faith and credit to which it was en-

titled and thereby violated the Constitution of the

United States.”

Harding v. Harding, 198 U. S. 317, 340, 341.

—

This point is also fully sustained by the following cases:

Morris v. Jones, 91 U.S. Sup. Ct. Adv., Op. Vol.

91, No. 6, p. 399;

Magnolia Petroleum Co. v. Hunt, 320 U. S. 430

88 L. Ed. 149;

Riley v. New York Trust Co., 315 U. S. 343, 86

L. Ed. 885;

Williams v. North Carolina, 325 U. S. 226, 89 L.

Ed. 1577;

Barber v. Barber, 323 U. S. 77, 89 L. Ed. 8&2.

pohliDiciee

’

The Honorable Court has also declared the rule to be,

that each state is required to give not some but full faith

and credit to judicial proceedings.

Davis v. Davis, 305 U. S. 32, 83 L. Ed. 26.

And, as stated in Milwaukee County v. White Co., 296

U. S. 268, 277, 80 L. Ed. 220, 228:

“The very purpose of the Full Faith and Credit

Clause was to alter the status of the several states as

independent foreign sovereignties, each free to ignore

obligations created under the law or by the judicial

proceedings of the others, and to make them integral

parts of a single nation, through which a remedy

upon a just obligation might be demanded as of right

irrespective of its origin. That purpose ought not

lightly to be set aside in deference to a local policy,

which, if it exists, would seem to be too trivial when

weighed against the policy of the constitutional pro-

vision and the interest of the state whose judgment

is challenged.”

-—

POINT TWO.

The Full Faith and Credit Clause Requires the Judg-

ments of the Courts of One State to Be Given the

Same Full Faith and Credit as They Have by

Law or Usage in the State Granting the Judg-

ment.

It has been expressly so held in the following cases:

Morris v. Jones, U. S. Sup. Ct., Adv. Op., Vol.

91, No. 6, p. 399, 401, 403;

Riley v. New York Trust Co., 315 U. S. 343, 348,

349, 86 L. Ed. 885, 890.

POINT THREE.

Claims Under the “Property Settlement and Separa-

ration Agreement” May Not be Re-Litigated in

California, Without Violating the Provisions of

the Constitution of the United States.

This Honorable Court has said:

“The full faith and credit to which a judgment is

entitled is the credit which it has in the state from

which it was taken, not the Credit that under other

circumstances it might have had.”

Morris v. Jones, U. S. Sup. Ct., Adv. Op. Vol. 91,

No. 6, pp. 399, 403.

At page 403 the Court, speaking of a final judgment

said:

“That determination is final and conclusive in all

courts.”

“For the Full Faith and Credit Clause established

‘throughout the federal system the salutary principle

of the common law that a litigation once pursued to

judgment shall be conclusive of the rights. of the

“Se a

—12—~

parties in every other court as in that where the

judgment was rendered.’ Jd. p. 439. And see Riley

v. New York Trust Co., 315 U. S. 343, 348, 349, 86

L. ed. 885, 890, 891, 62 S. Ct., 608. The nature and

amount of petitioners claim may not thereafter, be

challenged or retried in the Illinois proceedings.”

(Emphasis added. )

Morris v. Jones, U. S. Sup. Ct., Adv. Op. Vol. 91,

No. 6, pp. 399, 403.

A further reason for the rule was given in Riley v,

New York Trust Co., 315 U. S. 343, 348, 349, 86 L. Ed.

885, 891, from which case we now quote as follows:

“Were it not for this full faith and credit provi-

sion, so far as the Constitution controls the matter,

adversaries could again wage their legal battles when-

ever they met in other jurisdictions.”

POINT FOUR.

California May Not Deny Full Faith and Credit to

the Utah Decree on the Theory That It May Not

Be Sufficient to Sustain Contempt of Court Pro-

ceedings in California.

Diligent research has failed to reveal a case where, as

here, one of the reasons assigned for the refusal to give

full faith and credit to the judgment of a sister state has

been that it appeared to be insufficient to sustain contempt

of court proceedings, but did reveal a case where the trial

court refused to grant such faith and credit because the

right did not exist to directly issue writs of execution

upon the judgment. The Supreme Court of Maine in

brushing the objection aside as being without foundation

said:

“It was also claimed, as in this case, that the act

cannot have the effect contended for, because it does

_—

not enable the courts of this state to issue executions

directly on the original judgment, and the court says:

‘This objection, if it were valid, would apply to every

other court of the same state where the judgment was

rendered. But it has no foundation. The right of a

court to issue executions depends upon its own powers

and organization. Jts judgments may be complete

and perfect, and have full effect, independent of the

right to issue execution.’ See Mc Elmoyle vy. Cohen,

13 Peters 312; Bissell v. Briggs, 9 Mass. 462. Hamp-

ton v. McConnell, 3 Wheat. 234.” (Emphasis added.)

Damon v. Webber, 111 Maine 473, 477, 478, 89

Atl. 734.

This Honorable Court has stated the rule effective, even

in those cases where the cause of action, merged in the

judgment, could not be enforced in the State where the

judgment is taken. We quote from Riley v. New York

Trust Co., 315 U. S. 343, as follows:

“That clause compels that controversies be stilled so

that where a state court has jurisdiction of parties

and subject matter, its judgment controls in other

states to the same extent that it does in the state

where rendered. Roche v. McDonald, 275 U. S. 449,

451, 72 L. ed. 365, 368, 48 S. Ct. 142, 53 A. L. R.

1141. This is true even though the cause of action

merged in the judgment could not be enforced in the

state where the enforcement of the judgment is

sought. (Christmas v. Russell, 5 Wall. (U. S.) 290,

302, 18 L. ed. 475, 478; Fauntleroy v. Lum, 210 U. S.

230, 236, 52 L. ed. 1039, 1041, 28 S. Ct. 641.”

Riley v. New York Trust Co., 315 U. S. 343, 348,

349; 86 L. Ed. 885, 891.

—»

ities

POINT V.

“The Property Settlement and Separation Agree-

ment” Merged in the Utah Decree and All Claims

or Rights Thereunder Are Now Merged in Every

Other State.

We have hereinbefore referred several times to the de-

cision of this Honorable Court in Bates v. Bodie, 245

U. S. 520, 62 L. Ed. 444, where it was held that the divorce

decree, which provided for alimony as set forth in a con-

sent agreement of the parties, and “the findings” of the

Arkansas Court were entitled to full faith and credit in

the Courts of Nebraska and constituted a full and complete

bar to plaintiff’s right to recover additional alimony under

the laws of the State of Nebraska.

Mr. Justice McKenna, speaking for the Court, said at

page 525:

“The case is not in broad compass and depends

upon the application of the quite familiar principle

that determines the estoppel of judgments, and the

principle would seem to have special application to a

judgment for divorce and alimony. They are usually

con-comitants in the same suit—some cases say must

be—or rather, that as alimony is an incident of di-

vorce, it must be awarded by the same decree that

grants the separation. And it is the purpose to unite

them, as alimony necessarily depends upon a variety

of circumstances more adequately determined in the

suit for divorce, not only the right to it, but the meas-

ure of it—all circumstances upon which it depends

then naturally brought under the view and judgment

of the Court. Whether, however, the right to it

should be litigated in the suit for divorce or may be

sought subsequently in another the principle is appli-

cable that what ts once adjudged cannot be tried

again.” (Emphasis added.)

Bates v. Bodie, 245 U. S. 520, 525, 621 L. Ed. 444,

449.

Elsewhere in said decision we find the rule stated, which,

if applied here, necessarily leads to the identical final con-

clusion there stated: ‘We think, therefore, that due

faith and credit required by the Constitution of the

United States was not given to the decree.” (P. 531.)

The rule referred to was declared as follows:

“But how find the matters in issue of the points

controverted upon the determination of which the

judgment was rendered? The obvious answer would

seem to be that for the issues we must go to the plead-

ings; for the response to them and their determina-

tion, to the judgment; and each may furnish a defini-

tion of the other. National Foundry and Pipe Works

v. Oconto Supply Co., 183 U. S. 216, 234, 46 L. Ed.

157, 169, 22 Sup. Ct. Rep. 111. If there be generality

and uncertainty, to what extent there may be specifi-

cation and limitation by evidence aliunde there is some

conflict in the cases. But we are not called upon to

review or reconcile them. Our rule is that an estoppel

by judgment is ‘not only as to every matter which

was offered and received to sustain or defeat the

claim or demand, but as to any other admissible mat-

ter which might have been offered for that purpose.’

Cromwell v. Sac. County, 94 U. S. 352, 24 L. ed.

197.” (Emphasis added. )

- Bates v. Bodie, 245 U. S. 520, 525, 62:L. Ed. 444,

449.

LE eee

The point made here is fully sustained also by the

declaration made by this Honorable Court in Magnolia

Petroleum Co. u Hunt, 320 U. S. 430, 88 L. Ed. 149,

quoted as follows:

“

so that a cause of action merged in a

judgment in one state is likewise merged in every

other.” (P. 439; 88 L. Ed. 155.)

As to he presentation of property settlement and separa-

tion agreements to Courts in divorce proceedings for ad-

judication the rule is well stated in Holloway v. Holloway,

130 Ohio St. 214; 198 N. E. 579, where the Court found

that the obligation for support allowances was on the de-

cree and not upon the agreement providing for same,

following the presentation of the agreement to the Court

in the divorce proceedings for determination.

We quote therefrom, starting at page 580:

“A decree is valid as such regardless upon what it

may be grounded. There is nothing in the law to

render a decree invalid or ineffectual merely because

it was predicated upon an agreement of separation,

which agreement is incorporated bodily in the decree.

A decree which incorporates an agreement is a decree

of court nevertheless and as soon as incorporated

into the decree the separation agreement is super-

seded by the decree and the obligations imposed are

not those imposed by contract but are those imposed

by decree and enforceable as such. Once the contract

is merged into the decree, the value attached to the

separation agreement ts only historical.” (Emphasis

added. )

, 8

The following State Court cases declare the same rule:

Adler v. Adler, 373 Ill. 361, 26 N. E. (2d) 504

(cert. den. 311 U. S. 620);

Herrick v, Herrick, 319 Ill. 146, 149 N. E. 820;

Warren v. Warren, 116 Minn. 458, 133 N. W.

1009;

Wallace v. Wallace, 74 N. H. 256, 67 Atl. 580;

Worthington v. Worthington, 224 Ala. 237, 139

So. 334;

Prime v. Prime, 172 Ore. 34;

Hough v. Hough, 26 Cal. (2d) 605, 160 P. (2d)

a5;

Schwartz v. Dunham, 52 Ariz. 256, 80 P. (2d)

453.

POINT VI.

Under the Laws of Utah the Sums Described in the

California Judgment Are a Money Judgment En-

forceable as Such in Utah by Execution.

Utah has expressly so held. We quote the words of

its Supreme Court:

“By the weight of authority, and we think the bet-

ter reason, although there are cases to the contrary,

a decree for alimony, in a gross sum as wel! as to

past due and unpaid installments stands upon thd

same footing as ordinary money judgments and may

be enforced by execution in the same manner as ordi-

nary money judgments may be enforced.”

Beesley v. Badger, 66 Utah 194, 199.

= wn

POINT VII.

The Provisions of the “Property Settlement and Sepa-

ration Agreement for Weekly Installments Pay-

able to and “for the Support of the Wife,” Was a

Severable One in the Nature of Alimony.

It has been definitely determined that when payments

described in a property settlement and separation agree-

ment are described as being for the “support” of the wife

that such payments are alimony. The authorities appear

to be unanimous in holding that sums for the support of

the wife are alimony and that alimony is money allowed

for the support of the wife.

In re Spencer, 83 Cal. 460;

Davis v. Davis, 61 Okla. 275, 161 Pac. 190-191;

Phy v. Phy, 116 Ore. 31, 236 Pac. 751;

Kutchai v. Kutchai, 223 Mich. 569;

Lynde v. Lynde, 64 N. J. Eq. 736.

“Maintenance” (support) and “permanent alimony”

are synonymous and constitute an allowance in money for

support of innocent party.

Phy v. Phy, 116 Ore. 31, 236 Pac. 751, 752, 42

A. L. R. 558;

Gilbert v. Hayward, 37 R. I. 303.

The Supreme Court of Oregon has been called upon re-

cently to determine the effect of an agreement of the

parties, providing for a division of property rights and

for the payment of future installments for maintenance.

The Supreme Court after stating that “An agreement of

the parties approved as fair in the divorce decree may

provide for a division of property rights and also for the

payment of future installments for maintenance” then de-

clared:

“Although both provisions be included in the same

instrument they may be treated as separable, the pro-

visions for the division of the property being binding

and beyond the power of the Court to modify, the

provisions concerning future installments for main-

tenance being, however, subject to modification in the

event of changed conditions. The many authorities

cited can be explained on no other theory than that

the executory provisions are to be deemed separable

from the provisions relative to a division of the prop-

erty. As to the executory provisions, the parties are

deemed to have contracted in view of the statute au-

thorizing modification thereof.” (Emphasis added.)

Prime v. Prime, 172 Ore. 34, 49, 50, 139 P. (2d)

550.

POINT VIII.

The Common Law Rule That the Obligation to Pay

Alimony Terminates Upon the Death of Either

Husband or Wife Is Not the Law of Utah and

the California Court Has Construed the Utah De-

cree Under That Common Law Rule.

The rule at common law has recently been stated by the

Supreme Court of Washington as follows:

“Under the rule at common law, the obligations to

pay alimony is regarded as a personal one and termi-

nates upon the death of either husband or wife. . . .

(Citing cases. )”

Murphy v. Shelton, 183 Wash. 180, 48 P. (2d)

247.

The rule in Utah has been declared by its Supréme

Court as follows:

“. . the court may make such order respect-

ing the property and the support and maintenance of

the wife and children, as is just and equitable, and

such order or decree may be made to continue in

force after his decease. v7

Murphy v. Moyle, 17 Utah 113, 120, 53 Pac. 1010.

The rule there stated was noted with approval in Bees-

ley v. Badger, et al., 66 Utah 194; and the Utah Supreme

Court construing Sections 3-5, Title 40, Utah Code (C.

L. 17, Sec. 3000) in Cody v. Cody, 47 Utah 456, 463,

said:

“The legislature in adopting this section intended

to, and did, enlarge the common law powers of our

courts . . . in divorce proceedings.”

What was said there is noted as being very similar to

what was said by the Supreme Court of Washington, im-

mediately following the foregoing statement of the rule at

common law. We quote as follows:

“This rule has been modified by statute in many

States so that now, generally, the courts have the

power to provide in their decrees that alimony shall

continue after the death of the obligor and be pay-

able out of his estate.’ (Emphasis added.)

Murphy v. Shelton, 183 Wash. 180, 48 P. (2d) 247.

The rule, however, as stated by the California Court,

in construing the Utah decree is the common law rule

which it states as follows:

“The legal obligation imposed by law to support

the wife by the payment of permanent alimony comes

to an end upon the death of either party.” (R. 91.)

_—

California courts have evidently made a practice of so

holding.

Roberts v. Higgins, 122 Cal. App. 170, 9 P. (2d)

517.

ssl actin

See, also, Prime v. Prime, 172 Ore. 34, 51, 53, 139 P.

(2d) 550, where, as seen by the Supreme Court of that

State, the conflict between the states on this question dis-

closes California and New York on one side and Utah,

Massachusetts, West Virginia, Minnesota, Michigan and

Washington on the other.

It would appear that what this Honorable Court has

said in Riley v. New York Trust Company, when speak-

ing of the Full Faith and Credit Clause, should be con-

trolling here. We quote as follows:

“That clause compels that controversies be stilled

so that where a state court has jurisdiction of parties

and subject matter, its judgment controls in other

states to the same extent that it does in the state

where rendered.”

Riley v. New York Trust Co., 315 U. S. 343, 349,

86 L. Ed. 885, 891.

It has been held that courts cannot alter, amend or re-

peal judicial proceedings of another state without violat-

ing the provisions of that clause.

Dry v. Rice, 147 Va. 331, 137 S. E. 473.

Also, that the construction and interpretation of a

judgment are governed by the law of the state where ren-

dered.

In re National Surety Co., 284 N. Y. 593 (cert.

den. 311 U. S. 707, 85 L. Ed. 859).

cor Oe

POINT IX.

The Utah Decree Is Res Adjudicata Not Only as to

All Matters Litigated Therein but as to All Mat-

ters That Could Have Been Litigated Therein.

As shown herein under “Point V” this Honorable

Court has so held upon facts very similar to the facts

here. The rule as declared in Bates v. Bodie, 245 U. S.

520, 62 L. Ed. 444, has been set forth under that point at

length.

This Honorable Court, has, however, so recently re-

stated the rule in Heiser v. Woodruff that it may not be

improper to direct attention to that case.

We quote as follows:

“In general a judgment is res adjudicata not only

as to all matters litigated and decided by it, but as to

all relevant issues which could have been but are not

raised and litigated in the suit.”

Heiser v. Woodruff, 326 U. S. 726, 735, 90 L. Ed.

970, 977.

Conclusion.

For the reasons stated it is clear that the Courts of the

State of California have failed to give to the divorce de-

cree obtained by your petitioner in Utah, the full faith

and credit required by the provisions of Article IV, Sec-

tion 1, of the Constitution of the United States, and that

the effect of the judgment of the California Court is to

deny right guaranteed to him by the provisions of the

Fourteenth Amendment to that Constitution. The ob-

servation made by this Honorable Court in Harding v.

Harding, 198 U. S. 317, 49 L. Ed. 1066, 1075, that if the

¥s California law is as asserted, the proposition of

oe)

fact upon which the argument rests amounts simply to

denying all effect to the Illinois decree,” would appear to

be fully applicable to the facts here, and calls for here, as

there, the exercise of the supervisory control of this Hon-

orable Court.

It is respectfully submitted that, not only in the interest

of the general welfare, but in order that the will of the

People of the United States as set forth in the Constitu-

tion but not only observed but respected and obeyed, a

writ of certiorari should be granted in order that this

Honorable Court might review the judgment of the Dis-

trict Court of Appeal of the State of California, Second

District, Division One, and reverse such judgment.

Hiram T. KELLoce,

Attorney for Petitioner.

LAWRENCE M. CaH8ILL,

Of Counsel.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.