Brief of Respondent in Opposition to Petition for Writ of Certiorari — Astor v. Astor (No. 248)

~TSAMES & BROWNING Clerk

ooo j

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM.- 196

‘~~ °« No 248.

DOLORES FULLMAN ASTOR,

Re spondent

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI.

+

a * ie Se :

ScorTt XIicCar HY TE é. ( I

414 First I

INDEX °

Astor v. Astor. Fla... 107 Se2d 201 .1 1958 |

I. Introduction 1-2

Il. Jurisdi¢tion 2-8

ITI. Question Presented $

IV. Statement of the Case 8-13

V. Argument -_ 19-23

VI. Conclusion 23

Authorities. Cited

Astor vy. Astor, 7 Fla. Supp. 29, 33 9g

Adam v. Saenguer, 303 U.S. 59, 58 S. Ct. 454. 82 L. Ed.

* * 649 7

American Railway Exp. Co. v. Levee, 263 U.S. 19. 44S.

Ct. 11, 68 L. Ed. 140 * 6-7

Ansin v. Thurston, (Fla.; 101 So.2d 808. 810 . 1958, 3-4

4.13. 14-15, 17, 18-19

Astor y. Astor, 160 N.Y.S.2d 103. 106 PES och

Astor v. Astor, 165 N.Y.S.2d 767 1i-12..18

Astor v. Astor, Fla., 89 So.2d 645 9-10)

Astor v. Astor, Fla., 120 So.2d 176 (1960) 4-5

Edelman vy. oe 344 U.S. 357: 73 S. Ct. 293, 97

L. Ed. 387 (1952 22

Ellis v. Dizon, 349 U.S. 458, 99 L. Ed. 1231, 75 S. Ct. 850

(See i cs it BC

Elrod.v. City of Daytona Beach, 132 Fla. 23, 180 So. 378

(1938 ) : 23

Godchaux Co. vy. ‘Estopenal, 251 US. 179, 40 S. Ct. 116,

64 L. Ed. 213 (1919) ey “ 22

Great. Northern R. Co. v. Stnburet ‘Oil & Ref. Ca:. 2e7 ‘

U.S.-358, 53 S. Ct. 145, 77 L. Ed. 360 (1932, 22

“a INDEX

Norfolk & S. Turnpike Co. v. Virani, 995 U.S. 264. 32

S. Ct. 828, 56 L. Ed. 1082

Pacific Mut. Life Ins. Co. of Cal. v. Barton. 50 PF 2d 362.

Cert. denied 284 U.S. 647. 52.S. Cr. 29. 76 L. Ed. 550

(C.C.A: 5, 1931) 2

Partmar Vv. Paramount Theater Corp., 347 U.S. 89, 74S.

€t:-444,-99-L—Ed.-532 (1904) 15-16

Radio Station WOW, Inc., V- Johnson, 326 US. _ 65 ;

S. Ct. 1475, 89 L. Ed. “092 (1945) : 22

Rorick v. Bd. of Com’ rs, 3 F.2d 1048 (1932) 23

Second Nat. Bank vy. First Nat. Bank, 242 U.S. 660, 37

S. Ct. 236. 61 L. Ed. 519 0

Sutton v. Lieb. : 342 U.S. 402. 72 S. Ct. 398. 96 L. Ed 448

(1951) 20-2!

Western U. Teleg. Co. v. Crov Oo. 290 U.S. 364, 31 S. Ct.

399. 55 L. Ed. 498

Western Union Sad di 9h Co. v. Priester, 276 U 5S. 22.

48 S. Ct. 234, 72 L. Ed. 555

_m

Constitution of the State of Florida, Sec. ie . 9

Florida Statutes, Sec. 65.10 ..... ..-..... 4

” Rebertson & Kirkham, J UrispEEeeaee of Supreme Cc art

of the United States, Sec. 52, 1%51

°

—

IN THE

SUPREME COURT OF THE UNIT ED STATES

“OCTOBER TERM. 1960 :

JOHN ASTOR.

Petitioner,

-~

VS. : <

DOLORES FULLMAN ASTOR.

Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI.

5.

INTRODUCTION.

Petitioner, John Astor. was the plaintiff in the State

rial court and will be referred to as Petitioner or stor.

Respondent. Delores Fullman ‘Astor. was the ‘defend-

ent below and will be referred to as Respondent or Dolores

In this brief the following symbols will be used:

»

"R.—Original Record. * | ;

* PX.—Petitioner’s Exhibits.

P.App.—Appendix to Petitioner's Briet

R.App.—Appendix to Respondent's Brief.

P.Br.—Petitioner’s Brief.

‘R.Br.—Respondent's Brief.

II.

JURISDICTION.

The Petition herein is entitled a “Petition for Writ of

Certiorar: to the Supreme Court of the State of Florida.:

The Petition states that «P.Br. 1):

“Petitioner seeks certiorari for the review of a de-

cree of the Supreme Court. of Florida entered May

1960 (R. 204-2035). declined to set aside on tehearing «

decree of an intermediate appellate court, the Distr:

Court of Appeal of Florida. Third District, rencere’

December 2, 1958 (R. 159)."

The Petition 1s concluded as follows:

“Therefore. Petitioner respectfully requests tha:

4 writ of certiorari issued to the’ Supreme Court of the

State of Florida for the review of: the judgment. de

eree or orders referred to herein and more specifica! is

described) wi tue Assignments cf. Error.

At the outset. we assert that this Court lacks turisdic-

tion here for the issuance or granting of a writ of certiora::

in this cause to the Supreme Court of the State of Florida.

Xlso. we contend that the Supreme Couft of Florida has

never in this cause rendered a “final judgment or decree

within the contemplation of Section 1257, Title 28, VS.C

The “final judgment or decree” contemplated by Sev:

tion 1257. Title 28, .U.S.C., in this cause is the decision «*

the Distract Court of Appeal of Florida, Third Distric®,

rendered December 2, 1958 (rehearing denied Dec. 41.

455 which is reporte tat 107 Sot 201. and included tn the

appendix te Petitioner's Petition commencing at. page 1A.

Any writ of certiorari which could have been issued bv this

Court would have had to have been issued ta'the District

Court of Appeal of Florida, Third District. to review its

decision. This is confirmed by the applicable constitu-

tionul provisrons, statutes and arian of the State of.

Florida and Section 1257 . Title 2 28. US C.. and the decisions

of this Court.

Under Section?) of Article V 6f the Constitution of

the State of Florida, appeals may be taken, to the District

Courts of Appeal of Florida as a matter of right. However,

‘the Jurisdiction of the Supreme Court of Flafida to review

decisions of the District Courts of Appeal is proscribed in

Section $12 Article V of the Constitution of the State of

Fiorida as follows: ,

“Appeals from district courts of appeal may be

taken to the supreme court, as a matter of right, onls

from decisions titially passing upon the validity of a

state statute or a federal statute or treaty, or initially

construing a controlling provi: son of the Florida or

federal constitution. ‘The supreme court maa review

by certiorari.ans decision of a district court of appeal

that affects a class of constitutional or state officers, 01

that pass€s upun au. question certified by the district

court of appeal to be a great public interest, gr that -

is 1n direct conflict with a decision of ancther district

court ot appeal or of the supreme court on the same

pomntvaf law. and may. issue Writs of certiorar: to com-

nussions established bv law.’

In connection with the jurisdiction of the Su preme

‘Court af si ida to review decisiens of the District Courts

cD Appeal. the Florida Supreme Ccurt stated in Ans? \

Thisreton, Fia., 10! Sud 808, 610 (1958). as follows:

.

4

“We have heretofore pomted cut that under the

-constitutiona! plan the powers of this Court to reviey

decisions ef the district courts of appeal are limited arc

strictly prescribed. Diamond Berk’ Insurance Agenc:

Inc. vv. Geldstein. Flo. 1!0 So.2d 420: Sinnamon

Fowlkes, Fla.. 101 So.2d 875. It was never intended

that the district courts of appeal should be interme-

diate courts. The‘revision and modernization of the

Florida judicial svstem at the appellate level wa,

prompted by the great volume of cases’ reaching the

Supreme Court and the consequent delay in tne ad:

- ministration of justice. The new article embodic

throughout its terms the idea of 2 Supreme. cpsseeds which

functions as a supervisory body in the judicial systen

for the State’*exercising appellate power in certan

specified areas nei? to the settlement of issues ©!

public importance and the preservation 6f uniform

of principle ete pence he with review by ‘the dis strict

courts in most instances being final and absolute.” ”

In the instant case. Petitiener neither.ceuld nor dic

appeal to the Supreme Court of Florida from the Distr:

Coagrt of Appeal. He petitioned the Supreme Court 1°

Florida for a writ of certiorari to the District Court of At-

neal to review its decision (i. e.. the decision reported a.

197 So.2d 201. P.App. 1A1 (Astor v. Astor, Fla. 120 Se.2

176.1960). P.App BA:. This Petition was denipd «P.Ap:

oA a a) ees

t

a €e

ree aaiue at

Aver natitrarad the Sunreme Carpet

at esha OeK. Gave san ue estan meee ees Senne ~ :

er in

of Florida for « rehearing of its denial of Petitianer’s Pet

tion for Writ of Certiorari to the District Court of Apnea:

‘PApp. 8A... The Petition for Rehearing was granted

but om rehearing grantect the Supreme Court of, Florid.

‘adhered ‘to its former ruling and we quote its pe curt®:

order in full

“A rehearing Having heen granted in this cause

“and the same having been further considered™gpon the

record and briefs :nd oral argument of the attorneys

for the respective varties: it 1s. therefore. ordered anc

adjudged by the Court that the order entered bv this

Court im the cause or April 7. 1959. denvinge HeUition

for certiorari. be and is hereby reaffirmed and adhered

to on rehearing.” (P.App. 8A. 120 So.2d 176).

Five justices concurred in the per euriam denial and two

justices dissented ‘P.App. 8A, 120 So.2d 176). Hence the

eniy action which the Supreme Court of Jf lerida has taken

ie this case is to deny a discretionary petition tor WTit.of

certiorar: to review the appellate court's decision. then to

grant a rehearing of-the denial and reaffirm the denial on

rehearing —- Petitioher im‘his Petition herein erroneously

Gesignates this Supreme, Court Order “a decree of the Su:

preme Court of Florida” (P.Br ‘1).

Although admittedly ut Was necessaty for Petitione:

to petition the Supreme Court of Florida’ for a writ of

certiorari to the District Court of Appeal to revie® its

decision reported at 107 So.2d 261 (P “App. LA, et seq. :

order to exnaust his remedies in the State courts teat

Section 1257. Title 28. U.S.C.. nevertheless. having done SO -

and the Supreme Court of Florida hav ing declined to exer-

cise its discretionary power in denying the petition and re-

fusing to review tie decision of the District Court ot Ap-

pea. it then was mandatory on Petitioner in order to seek

to invoke the jurisdiction ef this Court to seek a writ of

veruorari to the Distriet Court o* Appeal of Fiorida, Third

District : instead of the Supreme Court of Florida) to .re-

View the decision or final judgment or decree of such

District Court of Appeai instead of the order of the Su-

breme Court of Florida reaffirming. on petition for re-

he caring granted, its denial of Petitioner's petition for writ

of cer -tiorari to the Distriet Court of ‘\ppea! )

In the ground above stated. without more. the Peti-

en snoulca be dismissed. Myr. ea ce White in Norfoll «

vv. Le = <a re ° oe - *). . , = a

* eurnpike Cov. Virainia. 225 U.S. 264, 32S. Ct. 8°28. 56 L.

+)

Ec. 1082, stated the proposition suceinctiv

6

‘se 2 8 . “4° t |

we now state that from and after the open-

ing of the next term of this court, where a writ of error

is prosecuted to an alleged judgment or a decree of a

-court of last resort of a state, declining to allow a writ

_of error to or an appeal from a lower state court, unless

it plainly appears, on the fage of the record, by an af-

.

firmance fn express terms of the judgment or decree .

sought to be reviewed. that the, refusal of the court to

allow an appeal or writ of error was the exercise by it

of jurisdiction to review the case upon the merits. we

shall cunsider ourselves constrained to apply the rue

announced in the Crovo Case, and shall therefore, by

not departing from the face of the record, solve against

jurisdiction the ambiguity created by the form in

which the state court has expressed its action.”

Even before this decision the announced ‘principle was

Well established. See Western U. Teleg. Co. v. Crovo,

adhered to the rule. Second Nat. Bank v. First Nat. Bens,

“4 U.S. 600, 37 S. Ct. 236. 61 i... Ed. O19: American Railway

Exp Co. v/ Leree, 263 U.S. 19. 34S. Ct.. 11, 68 L. Ed. 14%

wherein, Mr. Justice Helmes stated: ™

“A preliminary objection is urged that the.present.

writ of certiorari was addressed to the court of appeal,

and not to the supreme court. But, under the Const-

‘tution of the state, the jurisdiction of the supreme court

ig discretionary iart. 7, $11); and although it, was

necessary for ihe petitioner to invoke that jurisdiction

in order to make it- certain that the case could go no

tirther (Stratton v. Stratton, 23d U.S. 55, 60 L. Ed. 142

36 Sup. Ct. Rep. 26. when the jurisdiction Was decline’

the court of appeal was shown to be the highest court

of the state in which a deciSion cow be had. Another

section of the article cited required the supreme cour

to give its reasons for refusing the writ: and there-

fore the fact that the reason happened to be an opin"

upon the merits rather than some more technical con-

sideration did not take from the refusal] its ostensible

re) uS. 264. 31S. Ct. 399, 55 L. Ed. 498. Later cases have.

~

‘

character of declining jurisdiction. Western U. Teleg.

Co. v. Crovo, 220 U.S. 364, 366, 55 L. Ed. 49°. 499. 31.

Sup. Ct. Rep. 399: Norfolk & S. Turnp. Co. v. Virginia.

225 U.S. 264. 269, 56 L. E@. 1002. 1086. 32 sup. Ct. Rep.

628. Of course. the limit of time for applying to this

‘ court was from the date when the writ of certiorari was

' refused.” wg

See also Western Union Telegraph Co. v. Priester. 276

WS, 252. 48 S. Ct. 234, 72 L. Ed. 555: Adam.v. Saengaer,

“3 US. 59.58 S.Ct. 444. 82 L. Ed. 649: Robertson & Kirk.

fram, Jurispridehte’ of Supreme Court of the United States,

‘ my 4 aad ‘ .

sec. 32. 1951. r

While we submit \that the foregoing is dispositive of

the petition, the Petitionsc has sought to have this court take

jurisdiction on other. grounds and accordingly, we do discuss

them. ——

Petitioner seeks to invoke the jurisdiction tf this Court

under the provisions of Title 28. United States Code. Sec-

.

.

tion 1257 “for the reason that the Supreme Court of the

State of Florida has decided a federal question of sub- ©

stance not heretofore determined by this Court” (P.Br. 2).

Thereafter he states that the federal questions are: “full

faith and credit and due process and equal protection”

(P.Br. 8)... Actually “due process” and “equa! protection”

were fatally belatedly sought to be raised for the first time

in Petitioner's Petition for Rehearing of his Petition for

Certiorari in the Florida Supreme Court ‘R. 195-200). Al-

though the question of ‘full faith and credit” was raised

in the trial court (and the District Court of Appeal and the

Plerida Supreme Court). the real question here does not

concern “full faith and credit.” The real question js and .

#48 been res judicata er estoppel by Judgment: . This ques-

>

ton has certainly been heretofore determined by this Court

and also by the courts of Florida in this and other cases.

>)

Since this issue ‘as been determined in other cases hs

this Court. this Court shOuid retuse to grant the Petits:

As tocthe “fall faith and credit™ tasis, we asrert there

! ovnd for this Court to take Jurisdictton on it, DEC

“ “FI iorida Court, did give “fuil faith and credit” to the

Nee York decree but held it did not require the instant t

court to set aside the pilor decree pertaining to differen

parties. There was no denial of ° ‘full faith and credit” an:

aceord:ny!¥, no such ground on which to take neal

,

IV.

QUESTION PRESENTED.

Petitioner hus failed to state a question as a questien

and we have been unable to determine from Petitioner's

brief just precisely what he considers the question to be.

We submit that the only question hete 1s:

Whether a State Trial Court Should Review and

Set Aside a Decree of Another Trial Court of That

State Wherein the Same Matters Had Already

Been Litigated Between the Same Paities and

Were Not Appealed and Became Res Judicata or

Subject to Estoppel by Judgment.

V.

STATEMENT OF THE CASE.

Respondent deems it necessary to restate the case in

order to correct the inaccuracies and omissions in Pet:-

tioner’s statement.

In 1954, Aster went to. Mexico and obtained a divorce:

from his wife Gertrude, a New York resident tR. 110-121

He then married the Respondent Dolores, a Florida resi-

Gq

dent. He and Dolores thereafter separated. She com-

menced an action im the Cireuit Court of Dade County,

Korda «R.App. A '3.R. 141-3). for support under Sectron

M0 Florida Statutes. we Icn pravydes:

“65.10 Alimony unconnetted with causes of di-

veree --If any husband-having ability to maintain or

contribute to’the maintenance of his wife or minor

children shall fafl to do so. the wife. living with him

or living apart from him through his fault. may ob-

tain such’ maintenance or contribution upon gom-

plaint filed and suit prosecuted as in other chancery

causes: and the-court shall make such orders as may

be necessary to secure to her such maintenance or con-

tribution.”

Astor sought by his pleading and proof passively to defeat

Doleres’ claim and actively ti annul the marriage or for

divorcee, all on the ground that Astor had a living wife at

the time of his marriage to Dolores because the ‘Mexican

cecree Which he obiained against Gertrude was invalid (R.-

App. 196 R. 151-2:. The trial court held (R.App. es R38:

“The defendant, asserting that he has not been

divorced from a formor, wife Because the decree of a

Mexican court sought and obtained by him is void, con-

tends that the parties are not husband and wife. The

contention, in my Opinion, is not tenable. It is my

View that he cannot question the Validity of the Mexican

' decree -because he not only sought and procured it.

but took advantage of it by remarrying.” (See 7 Fla.

Supp. 29, 33).

Dolores appealed as to only the amount of the award. but

Astor neither appealed’ nor cross-appealed as is reflected in

the decision of the Florida Supreme Court ( Astor vs Astor,

Fla.. 89°So.2d 645): .

“In this case the appellant wife brings hefore us for

review a circuit .court decree awarding her alimony

1°

uncommected with enuses of diverce under Section 65 '

”~

Florida Statutes 1955. F.S.A The onlv question im

heed ri trie ipreal . the ati wntafialy } iv. i}

by the lower court, WV hich appre Nant seeks tu have

creased.

* * o * @

“Appellee responded’ to the complaint with an an-

ewer denying that he was validly married to appellar

or that he was guilty of the misconduct ‘charged in the

comet int. Wath his answer appellee included a coun-

terclaim asking that his marriage to appellant be an-

@ rile’ on the grounds of a prior subsisting marriace

and fraud and deceit on the part of appellant, or th.t

he he granted an absoluté divorce on the ground of

extreme cruelt

“!fter hearing the evidence, the chancellor found

that the parties were living apart through the fault of

iopellee, that appellee was under a duty to support h: is

wife, that he wis estopped to denv the validity of the:

marriage. and that appellee failed to prove by a pre-

-ponderance of the evidence either his residence in the

State of Florida or his charge of extreme cruelty.”

By ..stor’s failure to appeal or cross-appeal the ruling tht

he’was estopped to assert.the invalidity of the Mexican

decree and based thereon. the denial of his defense to

Dolores’ action and his so-called cross-claim for annulment.

sich matters became ‘final. See £59.08. Florida Statutes

(R.App. 1G.

Thereafter, Gertrude obtained a decree in New York.

which correctly declared that the Mexican divorce was

invalid as to Gertrude (P.App. 284A’). Dolores was not a

party to this action and Gertrude had not been a party to

Dolores’ Florida action.

Thereafter Astor brought a suit in New York against

both Gertrude and Dolores and obtained -personal sery.ce

7?

i

on both He sought a declaration as to which was his wife

The decisions therein of the Supreme Court of New York

re reported at 160 NYS 2d 108: 161 NYS2d 443: 16°

NYS2d 87 dnd 165 N.Y.S2%d 767. In the second New

York decision, the court Stated:

“The New York decree in favor of Gertrude and

against this plaintiff is binding upon the latter since

the New York court concededly had jurisdiction over

plaintiff, The Florida decree in favor of Dolores is

likewise binding upon this plaintiff as the Florida court

admittedly possessed jurisdiction over him. The two

decrees are. however, not mecessarily inconsistent.

* * * «© *

“The Florida decree, in effect. adjudicates that

‘Dolores is the wife of this plaintiff because the fatter

is estopped to question the validity of the Mexican

divorce decree whereas the New York decree adju-

dicates that Gertrude is the wife of this plaintiff by

reason of the fact that no valid decree of divorce ter-

mirated her marriage to plaintiff. Plaintiff may not,

in this*action, procure relief which would deprive either

defendant of the provisions for support contained in

such defendant's decree against plaintiff. The Florida

decree in favor of Dolores does not, however. consti-

tute an adjudication binding on Gertrude (who was

not a party to the Florida action) that Dolores is t

‘Dlaintiff’s lawful wife for all purposes, especially sin

the issue of whether the Mexican divorce decree was

valid and left plaintiff free to marry Dblores was not

adjudicated.” (160 N.Y.S.2d, p. 106).

In the last New York decision the Court stated:

“On March 6. 1956, cur courts declared that Ger-

-trude is plaintiff's lawful wife and awarded her sep-

arate maintenance. Thus Gertrude already has the

protection of the courts of New York and presents no

busis for the relief herein sought by plaintiff.

»

-

‘In Florida defendant Doleres has obtained a de-

cree for Separate maintenance as the lawful wife of

plaintiff herein. See 7 Fla. Supp. 29, affirmed by the

Supreme Court of Florida, $9 So.2d 645, 646.. That

cose follows Flerida decisions on marital status. Wood

vy Wood. 56 Pla. 882-887, 47 Bo. 560. The Florida de-

cree is a fihal judgment entitled to recognition in this

state. This in noemanner militates against the equally

‘enforcible judgment of our courts in Gertrude’s case

against this plaintiff. Thus both Florida and New

York have finally passed upon the respective status

of defendants vis-a-vis plaintiff. The complaint sets

forth no presently necessary justiciable controversy

between plaintiff and defendants. The plaintiff's Mexi-

cain divorce against defendant Gertrude adds nothing

to rights herein and certainly cannot move this court in

plaintiff's direction ir exercising a possibly available

discretion. See Statter v. Statter, 2 A.D.2d 81, 153

N.Y.S.2d 471, reversed 2 N.Y.2d 668, 163 N.Y.S.2d 19,

and the carefully documented opinion of Judge Burke,

dismissing complaint therein.

. The arguments advanced by plaintiff do not ap-

peal to this court's discretion. Florida certainly has

authorized defendant Dolores to use the name MS}

Astor. That presents no basis for this court to erter-

tain plaintiff's action. The fact that the courts of two

states “Florida and New York) have entered respective

judgments does not warrant anv action in behalf of

plaintiff.” (1635 N.Y.S.2d 767-8: R.App. 16).

Again Astor failed and again he did not’ appeal. In-

stead he returned to Florida and commenced this action

acainst Dolores and Gertrude came to Florida and obtained

a quick, uncontested ‘diverce from Astor even before. this

case Was at issue.

In this case Astor sought identically the same relief as

to Dolores which he had sought in ‘his so-called cross-

claim in the initial Florida action by Dolores,\i. e., an an-

sg

Astor has petitioned here.

13 ;

nulment of the marriage to Dolores, on the ground that the

New York court in Gertrude’s action had held that the

‘\Texican decree was invalid as to Gertrude and that Astor

was entitled to have full faith and credit accorded it as to

Dolores in Florida. Dolores asserted defenses of res judi-

cata and estoppel by judgment and that accordingly, full

faith and credit to Gertrude’s New York decree did not

require Florida to alter Dolores’ earlier Florida decree. The

“es rdicata and estoppel by judgment defenses were prem.

ised on Dolores’ earller action wherein Astor unsuccess-

fully defended her action and, also unsuccessfully alterna-

tively claimed for annulment or divorce. al] on the ground

that he had a living wife because of the invalidity of his

Mexican deeree, Which, adverse rulings Astof had never

appealed (R. 27-33)... The trial court here dismissed Astor's

Cause at the conclusion of -his evidence (R.App. 1§, R.

102B. 103). Astor appealed to the Florida District Court

of Appeal, -Third District, and it unanimously affirmed

'P.App. 1A). Astor then petitioned for certiorari t6 the

Florida Supreme Court and the petition was denied 1 P.App.

vei. He thereupon petthoned far a réhearing and only

then included as additional grounds a “denia! of due pro-

cess” and “equal protection” under the Federal Constitu-

lion. This petition was granted and on the rehearing the

denial of the petition was adhered to and reaffirmed by five

justices .with two justices dissenting (Astor v. Astor, Fia.,

120 So.2d 176, P.App. 8.\, et seq.). Itis from this denial that

VI

ARGUMENT.

Thé question heretofore stated-was. and is. as the deci-

Sion of the’ Florida: District Court of Appeal stated. the

“Geterminative question.” The case was decided on the

14

issue of whether Dolores had established a defense of

res judicata based on the earlier, unappealed decree in

Dolores’ action against Astor in the same court. That this

- was the issue is eminently clear in the decision of the

Florida Distriet Court of Appeal and, in addition, the c@irt

stated the applicable Florida law: ”

“The determinative question is whether the later

_ New York decree invalidating Astor’s Mexican divorce.

_ entered in a suit by Gertrude against Astor to w hich

Dolores Was not a party, compelled the: chancellor in

the instant. case to vacate the earlier Florida separate

maintenance decree. We must answer that questicn

in the negative. This is so because the Florida decree.

which, in effect. held that Astor was estopped to use

the invalidity of his Mexican divorce as a shield against

Dolores’ claim for separate maintenance or as a sword

to terminate his obligation for her support. and deny-

ing Astor's counterclaim for annulment on the same

basis, continues binding on him, and is res judicata as

to these parties. Prall v. Prall, 58 Fia. 496. 50 So. 867.

870; Grey v. Gray, 91 Fla. 103. 107 So. 261, 262; ying

dage v. O'Berry, 101 Fla. 320, 134 So. 520, 522 The

estoppel imposed on Astor by the Florida decree was

broad enough to cover any and all methods by which

Astor might have sought to prove or establish the in-

validity of the Mexican divorce, and it is sufficient.

as implemented by res judicata. to cover the, effort in:

the instant case to establish the invalidity of the Mexi-

can divorce by showing the New York decree so held- ,

ing. entered in a suit in which Dolores was not a party

See Gordon v. Gordon, Fla. 1952, 59 So.2d 40.

‘Where the defendant interposes -a- counte!

claim and judgment on the merits is rendered agains*

him-on the counterclaim. he cannot thereafter mazn-

tain an’action on the cause of action stated in the

counterclaim, but he is not precluded from main-

taining such an action if the judgment is not on tre

merits. Restatement, Judgments, £59.

“ifs decision 1s sinks

15

‘Where a judgment is rendered m favor of the

plaintiff or where a judgment on the merits is ren-

Sind in favor of the defendant. the plaintiff is pre-

chided from subsequently maintain: ing a second ac-

tion based upon the same transaction. if the evi-

aaee needed to sustain the second action would

have sisteined the first action.” £61 ibid.”

Certainly this case was not decided on a question, with-

in the intent of Section 1257, Title 28;U.S.C. The case was

decided en a non-federal gyound. The d a pg bv a

State gourt that there exists a valid defenke of es judicata

or estoppel by judgment based on an earlier decree of the

same State court between the same parties a and involving

the same issues, does not present a Federal question. ‘Phis

is a determination to be made only by the State court and

¢ .

The law on res judicata and estoppel by judgment as

pronounced by this court is the same as the Florida law

“A judgment is an absolute bar to a subsequent

_ action on the same claim. But where the second action

between the.same parties is upon a different claim or

cemand, the judgment in the prior action operates as

an estoppel only as to those matters in issue. or paints

controverted, upen the determination of which the find-

ing or verdict was rendered.” i(U nited States v. Inter-

national Bldg. Co.. #45 U.S. 502. 73.S. Ct. 897. 97 L. Ed.

1182, 1953). :

In Partmar Corp. v. ‘Paramount Theater Corp., 347 U.S. 89.

+5. Ct. 414, 98 L. Ed. 532 (1954). this Court Said:

“We have often} held that under the doctrines of res

judicata a judgment entered in an action conclusive] lv

setties that action as to all matters that w ere or might

have been litigated or adjudged therein. But a prior

judgment between the parties has been held to operate

aS an estoppel! in a suit on a cause of action different

a é -

«y4

16

from that forming the basis for the original suit ‘on!y

as to those matters in issue or points controverted.

upon the determination of which the finding or verdict

was rendered.’ This latter aspect of res judicata ts the

doctrine of collateral estoppel by judgment. establishec

as a procedure for carrying out the public policy ot

avoiding sn tac litigation.”

So that even if this court were to accept jurisdiction. the

only purpose to be served would be for this court to re-

view whether the Florida court properly applied the same

law to the facts of this case.

In Ellis v. Dixon, 349 U.S. 458, 99 L. Ed. 1231, 75 S. Ci

gn) (1955), this Court was confronted with the question

as to whether the State appellate:court had rested its dec:

sion on a federal or a nontedera! — and this Cour

stated: : :

“In these circumstances we must ascertain whethe:

that court's decision ‘might’ have rested on a non-

federal! ground, for if it <i we must decline to take

turisdiction. Stembridge v. Georgia, 345 U.S. D4 e545

96 L. Ed. 1180, 1193. 725 Ct. 89¢ (1952: seetalso Lyn

v. New York, 293 U.S. 52, 54, 79'L. Ed. 191, 192, 59S. Ci

16 (198

In this case. there is no reason for speculation, because

the ubeve quo ted portion of the decision of the Florida D:s-

trict Court ef» Appeal in this case explicitly stated tho’

tnis cease was decided on-a nonfedera!l ground: uv e., Tes

sudicata or estoppel by judgment was a valid defense

That being true, there is no basis under the Statute or

under Rule 19 of this Cott for granting Astor's petition.

We submit that the foregoing argument should comne!

denial of Astor's petition. However, since he has raise

the “full faith and credit’ argument, we discuss it also. Ths

contention is that the Florida courts failed to give “fu.

—"

~”"

‘

faith and credit” to the Nei York decree obtained bv Ger-

trude in an action against John only which declared his

Mexican decree invalid as to her and ineffective to disturb’

‘their marital status. by taihne to modife the earlier and

final decree obtained by Dolores against Jehn in the same

Flomda court and on the basis of such modification’ failing

to grant Astor an annulment of his marriage to Dolores.

This was what was sougnt by Astor’ s Complaint ‘in this

‘ase (RR. 1-6), although the issue is contorted in Astor's

etition | P.Br. 6-7). We submit that. this contention 1s

completely and correctly answered ‘in the decision of the |

Flor ida District Court of Appeal iP. App. 1A-7A), includ-

‘ing’ the i ree decisions of the New York Supreme Court,

iti? N.Y.S.2d 103; 162 N.Y.S.2d 87: 165 N.Y.S.2d 767.

The Fiorida District Court of Appeal in its decision

in this case ; tated (P. App. 38A-44 }:

@

“Astor filed suit in New York on’ Februa ary 14,

i957, against Gertrude and Dolores, seeking a déclara-

tory Judgment to determine, in light of the Florida ‘and

New York decisions above referred to, which of the

two women detendants was his lawful wife. and seek-

ing an adjudication that his Mexicon divorce was void.

‘and relief from the effect of the Florida separate maii-

tenance decree.’ The New York court rejected that

suit on the ground, among others, that Dolores’ separate

maintenance decree was res judicata.” '

In the second decision of the New York Supreme Court in

“Astur’s suit agiinst both Gertrude and Dolores. the court

had stated (160 N.Y.S.2d 103,°106):

“The Florida decree. im effect. adjudivates that

Dolores is the wife of this plaintiff because the latter

is estopped to question the validity of the Mexican

divorce decree whereas the’ New York dec: ‘ee adjudi-

Cates that Gertrude ‘is the wife of this plaintuff bv

reason of the fact that no valid decree of divorce ter- |

6

x

18

ainaned her marriage to plamtitl Plainti ff. mav not

in this action, procure relief which would deprive

either catenent of the agetncoy for support con

- tamed in such defendant's decree agpinst plamtiff.”

In the fourth and last decision of the New York Supreme

Court in that case the court stated further | 165 N.¥.S.2c

a

sui F

e

“On March 6. 1956. our courts declaréd that Ger

trude is plamtiff’s lawful wife and awarded her sey

arate maintenance. Thus ,Gertrude already has the

protection of the courts of New York and presents he

basis for the relief herein sought by plaintiff.

‘New York coufts do not. generally speaking,

look with favor upon actions brought by a nonres!

dent plaintiff, whose matr imonial domicile Was 10%

in this: State and who seeks to use our courts ior

deciaratory relief with respect to marita! status, un-

iess there are substantial reasons for saieraod = the

exercise of our judicial power. * Engel v. Engel.

App. Div. 14, at page 16, 07 N.Y.S.2d 1, at page 4

“In Florida defendant Dolores has obtained a de-

cree for separate maintenance as the lawful wite 0!

plaintiff: herein. pag Fla. Supp. 29. affirmed by the

Supreme — of Florida. 89 So.2d 645, 646. That

case follows & Sous degisions on marital §tatus. Wood

Wood. 56 Fla. 882-887. 47 Se. 560. The Florida de-

_eree is a final judgment entitled to recognition im this

Sgate. This in no manner milriates UGALNst the equa!

entoreible judgment oF Our COUTTS in Gertrude's eas

against this plamnefr, Thus both Florida and New York

nave finally passed Uporr the respective status of de

fendants Vis-a-VIs plamtift. “Emphasis ours }.

The Florida District Court of Agent in the instant case 1!

concluding its decision stated (P.App. 3A-6A):

“While the New’ York decree invalidating Asto:

divorceis entitled to full taith and credit, it-does :

19

follow that it may affect the earlier Florida separate

maintenance decree. In the suit which Aster brought |

against Gertrude and Dolores in New York for declara-

tory decree he asked the New York court to hold

that the earlier New York decree obtained by Gertrude

invahdating his Mexican divorce was a sufficient

ground to upset the Florida: separate maintenance de-

cree which Dolores had obtained. The New York court

refused to so rule, and dismissed his suit. regarding

the Florida decree as res judicata.

“The New York decree invalidating Astor’s Mexi-

can divorcee is not entitled. under the reauirement tor

full faith and credit to be assigned a Credit or effect in

Florida greater than a coy in the state’in which it

Was rendered was willing te accord it- See Noraes vy.

Brewer, 356 U.S. 604. 78 S. Ct. 963.2 L. Ed. 1008. Cf.

Sutton v, Leib. 342 US. 402.72 S. Ct. 398. 96 L. Ed. 442

“The New York Court, in dealing with Astor’s suit

for declaratory decree, pointed out that the earlier

New York decree and the Florida decree rendered in

the separate muintenance suit were not necessarily in-

consistent or repugnant. Tha‘ court further noted that

the decree for separaté maintenance did not purport to

hold that Astor and Dolores were validly married. but

rather that Astor Was estopped to deny the marriage

under the circumstances.”

In the last analvsis, Astor's contention here is that the

Florida courts denied fulefaith and credit to Gertrude’s

New York decree, evén though the New York Supreme

Court had adjudicated that Dolores’ earlier Florida decree

Was entitled to full faith and credit in the New York

courts und wus not affected bv Gertrude’s New York de-

cree. The contention is that the Florida court should give

effect to Gertrude’s New York decree which the New

York court was unwilling to give it. Actually the Florida

courts have given full faith and credit to Gertrude'’s New

York decree th that in this proceeding they have given it

—_—_

a

however, object to Fet.

20

no more and no less effectathan did the New York court in

the case where John. Gert:ude and Dolores were all parties

The only wev thot the Florida courte cou id have siven ful.

faith and credit to Gertrude’s New York .decree would

be to give it the same effect which the New York court

cave it in the actio# where the court had jurisdiction ove:

all three of the parties and had both Dolores’ Florida de-

cree and Gertrude’s New York decree in ‘issue before 11.

And to corrv the argument further. if the Florida courts in

ceos@ hod heid abat Gertride s ew York decree he

ing Astor's ae diverce against Gertrude eae he

turn V1 that Dolores’ Florida decree. then the Florids

eaurts in this case would not have been civing full fan!

nd. eredit to the Gecisions' of the New York Supren:

Coun t in the action where all three ‘were parties and both

Gertrude’s and Dolores’ decrees were before the court. since

those decisions held that neither Gertrude’s New. York

decree nor Dolores’ Floridé decree aftected.or altered the

other and that .both were recognized by see New Yoros

and were enforceable

While we do not believe Petitioner's other points mer

ere a sere re Lage ‘ e . ~ oe \ : ‘ a ee

consideration bv .this equrt. we nevertheless respond to

- . . . rw, ‘ .

“Under his Poirt Il. Petitioner also arcques that Sut?

-

:

ve Lich, 342 U.S. 402, 72 S. Ct. 398.96 L. Ed. 448 ©1951!

reauires that Gertrude’s New York .decree be given ful!

faith and credit and then races headlong to his conclusict

that Sution v. Lich requ.red Florida to hold the marriace

of Astor and Dolores void. We shall not attempt to analyee

a ae pans nee Leo oer ° ve 34) oom ware +¢

whether his premise is right or wrone because we acce,*

@ PPVODWCSi. eth! Ree k i's ANS y UH Late =

eee Peait Ieee ° — } vere Te | ) ie Pe e ? ee. | ‘ See

siven full faith and creat in Flonda. We certainiy

a |

soner’s concusion, net Oriiy be

cauce -the New York courts have. he.d that their decree

> -

s .

21

obtained by Gertrude is compatible with Dolores’ Florida ,

decree of separate maintenance, but also. because Sutton

v. Lieh, supra. exemplifies a rule ef law just opposite to

sPeutioner’s contention that the marrince of Astor and

Dolores must Be ceclared void. In Sutton v. Lieb, this court »

said:

“Full faith : to the New York annulment, which is

conclusive everywhere as to the marriage status of

Spetiioner ond Henzel. compels Elinois to treat thei:

Nevada marriage ceremony as void. ‘The force of that

rule. however, does not require that the effect of the

New York snnulment en rights incident to this dec-

laration of the invalidity ofa the Nevada marriage

ceremony shall be the same in all states. * * * Wuith-

out reference to the effect of a divorce on incidents of

‘the marriage relation where bot! spouses are’ actually

before the court, we think it equally clear, as a matter

of constitutional law. that Illinois is free to decide for

iwself the effect of New York's declaration of annul-

MeN Po ON wt CD NEuluenis respar dent, a Stranger ta

that decree.”

So this Court held that even thouch New York had

heid the second marriage void and therefore Petitioner

oncaliy was never remarried. nevertheless, Tins could

sterminate @limony payments from the first morriace and

Stil give full faith and credit to the New York annulment

By wnalogy here the Florida ard New York courts mav

give full faith and credit to both Dolores’ Fl lorida decree

rd Gertrude’ New York decree and in fact thev have and

ve found them compatible

:

rea’

aad

“nder his eee int III. Fetitionér argves that in Sutton’

! . . ‘

r tise.’ B2,,8*¢ ear ain net kee vy Wal Pot ators

: ist ae = ‘ Ge ane} atal VOeCOMmMe E€ESti Pye ‘

%. ‘, 34 F } fo« Ft : oe Fret} « 4 - — . .

om C.acming the benefits of the full: faith and credit

. aes . 5 ee cr , , . Fr mye ” 2% } « . ; , Tas

Cecuise bY entering into a void marriage. This h# absolutels

°

ining to do with our present situation. Astor here is

on

not estopped from claiming the benefits of the ful! faith and

credit clause for Gertrude’s New York decree. That de-,

cree has been given full faith and credit by the Fiorid:

ty muirts, 4) LS Cp be ie full farth and eredit does not recur

that Dolores’ Florida decree be setraside. This is the verv.

crux of ‘the matter and both the New York and Floritis

courts have spoken. as one. on this point.

Petitioner's. Points IV arid V (P.Br. 12). if even in-

tended to assert rounds for granting the petition, never-

theless seek to raise only puters vy nonfederal questions,

Petitioner's Points V1 throus th IX argue that he wo:

vemed echer equal protection or duc process or both

the Florida courts: As stated above, these points were not

seasonably «raised below-and therefore cannot be argu

here. Petitioner states they were “last fully presente ;

to the Florida Supreme Court in the Petiiioner’s petitior

for rehearing (Ro 195-2005.° ¢P.Br. 8+.” This ts also the firs’

and the only-place they were raised or even mentioned

Neither Petitioner's Complaint in the trial court (R. 1-f

nor his Assignments of Error in the Distriet Court of Ap-

peal «R. 104-105). nor his Petition for Writ of Certiofay

fried in the Fiorida Supreme.Court, contain them. It ha

beer dong settled that first presenting the federal questior |

nia petition tor’: rehearme in the ‘St ate court is too hate

«© Gotehena Col vo Estoptnel, 2501S. 179 48S. Ce Ti

6+ L. Ed. 213 :1919.: Gren: Saniora R. Conv Seakice. Qi’

& Ref. Co. 287 U.S. 358. 53 S. Ct. 145, 77 L. Ed. 360 (1922

Ped Stason WOW, luc. \. Jolson. 326 ‘ 3.120; 65'S: C

475, 8Y L. Ed. 2092 . 1945). A recent case. Ede/mear \

Ci. Fornia. 344 U.S. 3857. 73S. Ct. 208. 85 Lo Ed: SRF (1082

stuted the tollowing:

“It is clear that this, Courf is without power *

decide whether constitutional rights have beer violated

|

9

. tn

when the federa! questions are not seasonably rained

In accordance with state law

It is equally clear that in Florida a federal question

not be entertarned.on appeal when not raised by the

pleadings in the tria! ‘ourt of assignments of error filed in

the cause © See Pacifie Mut. Lite Ins. Co. of Cal. ¥. Barton.

MP F2d 862. cert. li -8¢ U.S. 647, 52 S. Ct. 29. 76 L. Ed.

atl CoC A. 5: 198) « Rorel:¢. 5d of Com'rs, 57 Fiod 104%

1932 Sordid City of Deytone Beach, 132 Fla 24. 180 So.

And here Petitioner sought to raisé these

questions firstin his Petition for Rehearing of tné denial by

the Florida Supreme Court of Petitioner's Petition for

Writ of Certiorari to the District Court of Appeal

VII

“CONCLUSION,

The Petition should be dismissed or denied on anv

one of the multiple grounds which we have discussed

Respecttuliv submitted,

1S ANS

Winiram C. Sreez.

1414 First Nation&Al Bank Bldc..

ye)

Miami 32, Florida’

] HEREBY ( CERTIF Y that a copy ef the foregoing brief

Was miaued to the offices of W. F. Parker. Esq.. Ingraham

* i. ~ ape) . } ‘ ° . ; ‘ a

buudine? Mian $2. Flormda. Attorney tor’ Petitioner. this

' day’ of or . ; 1960

" bas a Ct

APPENDIX

INDEX TO APPENDIX.

Astor v. Astor, 160 NYS 2d 13

Astor v. Astor, 161°N.Y.S.2d 442

Astor v. Astor, 162 N.Y¥.S 2d 87

Astor v. Astor, 165 N.Y S.%q 767

Dolores’ Florida Support Action Complaint

. - .

Excerpts from Crossclaim ot Astor te Do

Support Action

Excerpts from Final Decree of trial court in instant

CaUsC

.. coon tas as BC Ce,

Section 5998, Florida Statutes

Excerpts from Final Decree dated Apri

tered in Dolores’ Florida Support Action

A-]

A-8

Al

(160 New Lagi Supplement 2nd 103.)

John ASTOR. Plaintiff. ¥. Dolores Fullman ASTOR and

Gertrude Gretsch Astor, Defendants.

se sed Court, Special Term, New York County, Part IIT

Feb. 14, 1957

- GOLD, Justice.

This is ¢ motion by defendant, Dolores Fullman Astor.

to dismiss the complaint in a declaratory judgment action

commenced by plaintiff against Gertrude Gretsch Astor

ind Dolores Fullman Astor. Plaintiff seeks a declaratory

asin (1) as to which of the defendassts is his lawful

wife, (2) that a’Mexican decree of divorce obtained by

him from defendant. Gertrude. be held invalid. and (3)

that a Florida decree obtained by Dolores was ineffective

to adjudicate that she is his lawful wife. —

The notice of moticn is based on the contention that:

‘Florida detree is res jvdicata and entitled ‘to full faitn

oi eredit in the courts of this state. - The main brief sub-

mitted by the movant. under the praver of the notice of

motion for “other and further relief” asserts as an agiditiona]

round for dismissal, that the complaint does not state a

subsisting justiciable contre, rsv between plaintiff and

_the movant. Plaintiff's m. . brief and the reply briefs

of beth movant and the plaintiff discuss this questicn at

length. In the circumstances, the motion will be treated

as based upon both grounds. No useful purpose would be

erved by requiring defendant to make a new motion based

upon the second ground. |

Tt appears from the complaint and the affidavits sub-

mitted on this motion that in an action brought by defend:

ant. Gertrude Gretsch Astor. against plaintiff in this court.

shé obtained a decree of separation, the court holding that

Ad

a Mexican divorce decree which this plaintiff had thereto-

fore obtained was invalid as to Gertrude because she had

not been served with process or appeared. It further ap-

pears that in an action in Florida, brought by the movant..

Dolores, against this plaintiff. Dolores obtained a decree

of separation and support.” The’ Florida court didi not

determine whether or not the Mexican divorce was valid,

holding that this plaintiff having obtained the divorce de-

ree ard having remarried in reliance thereon was estopped

ite asserting its invalidity.

(1-3) The New York decree in favor of Gertrude and

against this plaintiff is binding upon, the latter since the

New York court concededly had jurisdiction. over plan

tiff. The Florida decree in favor of Dolores is py oibed

binding upon this plai intiff as the Florida court idm L.

possessed jurisdiction over him. The two ee dare

however, not necessarily inconsistent. In Krause v. race,

282 N.Y. 595, 26 N.E.bd 290. the defendant was held es-

topped, in an action for a separation. to set up a defense

that a foreien decree of divorce. which he himegelf had ob-

tuined from his former. wife. was tmvahd.: The court

pointed out. 282 N.Y.. st pages 359-360, 26 .N.E.2d. at paz

299 that to refuse to permit the defendant to escape his

obligation to suppert the plaintiif did not indicate recogn!

tion by our court of the validity of the foreign decree

The court added, 282 N.Y.. at page 360, 26 N.E.2d. at pace

2y?. “Nothing in this de¢ision should be taken to mean that

because the defendant may not in these proceedings aval!

himself of the invalidity of his Nevada decree he is not the

husband of his first wife.” The Florida decree, in effect,

adjudicates that Dolores ts the wife of this plaintiff be-

cause the latter is.estopped to question the validity of the

Mexican divorce decree whereas the New York decree-a‘-

judicates that Gertrude is the wife of this plaintiff by

x

A3

reason of the fact that no valid decree of divorce ter-

minated her marriage to plaintiff. Plaintiff may not, in this

action, procure relief which would deprive either defend-

ant of the provisions for support contained in such de-

ferdant’s decree against plaintiff. The Florida decree in

vor of Dolores does not. however. constitute an-adjudi-

cation binding on Gertrude (who was not a party to. the

Ficrida action) that Dolores is this piaintiff's lawful wife

for all purposes, especially singe the issue of whether the

Mexican divorce decree was valid and left plaintiff free

to marrv Dolores was not adjudicated. There may be

situations presenting a necessity for determining the ques-

tion of which of the defendants is the lawful wife of plain-

uff. Insufficient facts are. however, set forth in the present *

compiaint to show that plaintiff. is faced with an immediate

and practical necessity for having that problem determined.

Ail that is stated in the pleading is that “The question

- Which of the defendants herein enjoys the status of the

plaintiff's lawful wife creates doubts as to certain right's

and interest in and to the plaintiff's property and estate.”

‘Par. 20). This allegation is a mere conclusion without

any ultimate facts to support it. It is entirely too vague

and indefinite to justify this court in entertaining and try-

ing the present action. What the property and estate

consist of and where they are situated are not disclosed,

nor are other facts alleged which show that it is necessary ,

for plaintiff's benefit to determine which defendant is the

lawful wife. For aught that is alleged, the plaintiff is

seeing a deterfiination as to a purely abstract question.

itis well settled that an action for a declaratory judy-

ment must be dismissed if it does: not seek determination

of an actual problem, the decision of which is presently

necessary for practical reasons. .Guibord v. Guibord, 2

A.D.2@ 34,2153 N.Y.S.2d 457; Westerman v. Westerman. 1

LO Oe

*

AG

AD2d 892. 149 N.Y.S2d 330: Prashker v. United State:

Guarantee Co.. 1 N.Y.2d 584, 154 N.¥.S.2d 910.

In the reply brief submitted bvplaintiff’s attorneys they

disavow, as a basis for this action. the need for a declar:-

tory judgment to meet the contingency that plaintiff micht

predecease both defendants without either -having divorced

him—in which event a question might arise as to Dolores’

right to share in plaintiff's estate. The reply brief de-

clares (p. 16) “we deny having advanced any such ‘pre-:

text’ for the present action.” The reply brief acknow!-

edges ‘p. 16) that “declaratory judgment procedure is in-

tended to deal: with actual problems and not with re-

moie possibilities which may never eventuate”. but — :

the position that plaintiff is confronted with four act:

problems. The brief then goes Gn to state these pee é

“actual Seagal None’of them is alleged in the com-

plaint itself.

(4; To withstand a motion to dismiss, ‘the pleading

must allege facts Warranting the maintenance for an action

for a declaratory judgment. Statements in briefs cannot

supply or cure the omissions of the compla:nt. se8 from

this, however, the four so-called “actual. problems” re-

ferred to in he reply bref would not, even if al lleged in the

complaint, justify the maimtenance of the present action.

The first “actual problem” appears to be plaintiffs

alleged need for determining which of the defendants 1:

entitled to receive support from him. Plaintiff is not con-

fronted with any such necessity, for, as So ob-

served, a judgment in this action ‘that Gertrude is plain

tif's lawful wife would not deprive Dolores of her richt

to support under the Florida decree. Krause v. Krause

supra. The facts alleged in the present complaint neca-

tive any possibility that Dolores is. the plaintiff's lawl.

AS.

wife. for plaintiff affirmatively alleges (Par. 8) that Ger-

trude was not served with process in his Mexican divorce

action and did not appear therein.

(5) The second “actusl] problem” asserted to con-

front plaintiff is the necessity of deciding which defendant

he may be reconc''ed with without risking the commis-.

sion of a crime in the state where the other defendant

possesses a decree of separation. Plaintiff does not, how- °

ever, state that he wishes to become reconciled to either

ct the defendants, or that either of the defendants is will-

ing to become reconciled with him. Thexze is also the

possibility .that plaintiff mav not wish to become recon-

cled with the particular defendant who would be de-

ciared his lawful wife if this action were to proceed or. that

said defendant would consent to such a reconciliation.

The following’ comment in one of the briefs submitted

on behalf of the movant is pertinent: “Does the plaintiff

really want this court to believe that plaintiff's choice of

‘a wife will depend upon the provisions of a declaratory

judgment which this court might give him?" Clearly the

second “actual problem” is at best a contingent one which °

_muy -never-eventuate to confrent plaintiff with the need”

for its determination.

‘ (6) The third “actual problem” referred to by plain-

uff's attorneys arises by reason of the fact that the taxing

wuthorities permit the filing of a joint return by a married

‘man oniy with his lawful Wwite. Plaintffs reply briefs

state that “if plaintiff remains validly married to Gertrude,

re could. if reconciled, file joint returns with her only” ¢p.

lv) and that if plaintiff “has become the lawful husban

of the movant. upon reconciliation with. her. he could

fue joint returns with the movant only.” (p. 18). This

problem jis likewise wholly contingent. It presupposes,

A6

(1) plaintiff's readiness to become reconciled with at leust

one of the defendants, (2) said defendant's readiness to

become reconciled with him, (3) said defendant's willing-

ness to file a joint return with plaintiff, and (4) plaintiffs

willingness‘to file a joint return with said defendant. There

‘is nothing before the court to indicate that the so-called

problem is not purely hypothetical and abstract.

The fourth “actualsproblem™ yelied upon in plaintiff's

reply brief relates to the.right of a taxpayer to deduct pav-

ments made pursuant to a court decree of separation,

Plaintiff's brief states that he does not know which pav-

menfs (those to Gertrude or those to Dolores) will be rec-

ognized by government authorities as deductible. It ts.

however, possible that the taxing authorities may recos*

nize the payments to both Gertrude and Dolores as deduct:-

tle rnade as they would be. pursuant to final decrees of

separation by the courts of different states.

At the present time there appears to be ineutti cier

vasis for anticipating a contrary ruling by the tan authori-

ties. Moreover, plaintiff may apply to the latter for a

ruling as.to whether both sets cf payments will be allowed

ns deductions. or, if not. which set of payments wW! ul he

allowed. He may then govern himself accordingly. He

does not,.at this time. at least. need a declaratory jud.-

mient of this court. Whether, if plaintiff is dissatisfied

with the ruling he may be in a position to sue for a de-

claraicry judgment as to which defendam is his la wful

Wile, is a Guestion Whose prese:.t determination is prema-

ture. *

The motion to dismiss is granted, with leave to serve am

amended: complaint within ten days.from the sefvice of

a copy of this order with notice of entry.

Settle order.

A7

- (161 New York Supplemets 2nd 443.)

John ASTOR, Plaint: ff, v. Gertrude Gretsch ASTOR and

Dolores Eullman Astor, Defendants.

Supreme Court, Special Term: New York County, Part 1.

Jan. 28, 1957.

STEUER. Justice.

The plaintiff brings this action ‘against two women,

each of whom not only claims to be his wife but each of

whom has a. judgment to support her claim. He asks for

a declaratory judgment declaring the marital status ‘of the

parties. The moving defendant is a‘resident of Florida;

She appeared in the action by her attor nev. It is not dis-

puted that the appearance was a general one. Thereafter

the other defendant served an answer containing a counter-

claim against her. This counterclaim seeks a declaratory

judgment to the effect that that defendant is the lawful

wife. The answer was served on the moving defendant's

attorneys. “The motion is to dismiss the counterclaim on

the Ground thut witheut personal ser ice the equrt has

no jurisdiction of the counterclaim.

(1,2) It is a bit difficult to see why the counter-

claim is necessary and also what objection there may be to

it. Determination of the plaintiff's action wil] dispose

Of any issue. raised by the counterclaim. The counter-

Claiming defendant under the pleadings has a right to

a complete presentation of her marital position. The

counterclaim gives her no greater rights either to present

vidence or obtain relief that she has without it. Never-

theless. the question must be decided. A non- resident who

voluntarily appears in an action subjects himself to juris-

diction in the plaintiff's suit against him for all purposes.

The question is does he also sub ject himself to jurisdiction

for the determination of a1 ny claim that a party other than

‘A8

the plaintiff may assert against him. In seeking the answe:

to this p problem, it is futsle to Gopsider the provisions of the

Civil Practice Act which direct how different parties

an action are to proceed against each other and how the

court is to make determinations between fhem. Such pr

visions control where there is jurisdiction but thev car-

not corifer it against a‘non-resident. Authority musi he

found. if it exists. elsewhere.

]

(3. 4) And iat only is authority lacking for the prop-

osition, there is comtrolling gqutheritv against. Matte:

of Indiana Transportation*Co.. 244 Cs. 456. 37 S. Ct: 717

61 L. Ed. 1253; Restatement on-dudgments. section 5. The

opposition’s reliance on Adam v. Saengaer, 303 U.S. 59. :54

Ct. 454. 82° L. Ed. 649, is misplaced. The decision there

held that institution of a counterclaim against the plaintif!

by.means of notice on his attorhey is proper even if the

plaintiff is a non-resident. As pointed out. 313 LS. at Por

6°. 58 S. Ct. 454. there is nothing arbitrary in a state

statute ma .ng a plaintiff who seeks the jurisdiction pres

ent for ali purposes ar

-

The motion is granted

‘ (162 New York Supplement 2nd 87.1

Toahn ASTOR. Plaintiff. v. Gertrude Gretsch ASTOR <a:

Dolores Pullman A tor. Defendants

e

meawee = a ~ San 9 m owen , PET

Supreme Court, Special Term. New York Coun ty. Part |

T ne “ 14

‘ March 29, 1957

. . vere e-

GOLD. Justice.

(i2 Plaintuff bases this motion for.rearcument up 7

certain autherities. not hitherto cited . viz.: Baumann *

b & v. - es 64 ~ . > ~* « ; r 5 F

Baumann, 250 N.Y.-382, 165 N.E. 819. and a number

cases to the same effect In each of the cases now relied

’

Ag

upon by plaintiff. a wife was permitted to maintain an ac-

tion for a declaratory judgement as to the effect upon her *

marriage of a foreicn diverce decree obtained by her hus-

band subsequent to the marrage. In none of saidcases.

however. had there been a prior adjudication as to the

“validity of the foreign decree-in an action between the

plaintiff. and her husband. In the instant case. on the

contrary, there has been an adjudication in the courts of

this state. in an action between the present plnintiff and

Ge: trude Gretsch Astor. one of the defendants. that a Mexi-

con divorce obtained by the plaintiff from her is invalid

und void and that Gertfude js therefore his lawful wife,

notwithstanding his purported remarriage* to defendant.

Dolores Fullmsn Astor, That adjudication is binding upon

“plaintiff and cannot be undone or sct aside in this action

There is. therefore. as far as presently appears. no need

at this time for the maintenance and trial of the present

action. The existence of a decree of a Florida court hold-

ing that plaintiff is estopped from claiming that defendant.

Dulcres, is his wife does not. in and of itself. create a neces-

sity for the prosecution of the instant suit. This is so be-

cause the Florida cowrt did not hold that the Mexican di-

Pe War MI aid that plantif bad acenrdi uv heen

free to marry Dolores, but merely determined that for the

Purposes of the actien for ‘ppert brought by Dolnrre:

“he present plaintiff could not be heard to urge as a defense

het a divorce decree which he himself had procured was

invalid. The Florida decree does not purport to destroy

the status of Gertrude as plaintiff's lawful wife nor does

pugpert to adjudicate Dolores as the lawful wife of

plaintiff except for the purposes of her action for Support

. There can be only ore lawful wife at anv given time. AS

our Court of ‘Appeals pointed out in Krouse v Krause. 282

* ¥. 345, at pace 360. 26 N.E.2d.290, 999. a getermination

. : . : J . ~

‘hat a defendant who obtained an invaud divorce *mas

e

Al .

not set up the invalidity of the divorce as a defense to

an actiun for support by cne whom he purported to marr

subsequent.to such diverce, Cos not mean that he is net

the husband of his first wife. As plaintiff has failed t

extublish the existence of any practical necessity for the-

1aintenance and prosecution of this action in the light of

‘the prior determination that Gertrude is his lawful wife

and the absence of a contrary determination by the Flords

court. this court adheres to its original determination: that

the present complaint should he dismissed. It- is to be

noted, in this connection, that tn none of the cases now’ ¢ ited

by plaintiff was the action for a declaratory judgment -

_ declaring a foreign decree void brought. by the very spouse

who had procured the foreign decrec. It should also be

mentioned that the complaint. whose sufficiency is at-

tacked, does not even allege that Dolores claims to be

plaintiff's wafe for any purpose except the right to be sup-

ported by him: Paragraph 17 of the pleading merely alieve>

that the Florida decree held Dolores entitled, as plaintuls .

wife, to a support decree.

The motion for reargument is granted, but upon such

rearcument the original determination is adhered to.

+465 New York Supplement 2nd 767.:

John ASTOR. Plaintiff.ev. Gertrude Gretsch ASTOR

Delores Fullman Astor, Defendants

Supreme Court, Special Term, New York County, Part Ai

June 14, 19957. .

EPSTEIN. Justice. ;

This action is brought ‘by plaintiff. Jonn Astor, for 4

declaratory judgmednt. seeking to have this court: Gete:

mine which of the two named defendants is “duis lwtu.

wife.” Both plaintuff and defendant Dolores Fullman Ast:

a | All’

*

are Florida residents. Defendant Gertrude Gretsch ‘Astor.

alleged to be a resident of New York. is a defendant, and

has interpesed an answer esking for judgement declaring

her to be the lawful wife of plaintiff. On the argument,

however. Gertrude was not represented and has filed

‘po ‘brief. herein. That is very understandable because

Gertsude has a determination of the New York courts in’

her favor. On March 6. 1956, our courts declared that

Gertrude is plaintiff's lawful wife and awarded her Stp-

arate Maintenance. Thus Gertrude already has the pro-

tection of the’courts of New York and presents no basis

‘for the relief herein sought by plaintiff.

“New York courts do not. generally speaking. look

with favor upon actions brought by a nonresident plaintiff,

whose mafrimonia! domicile was not in this State and who

seeks to use our courts for declaratory relief with respect

‘9 marital staius, unless there are substantial reasons for

invoking the exe: cise of pur judicial power.” Engel v. En-

sel. 275 App. Div. 14, at*page 16, 87 N.¥.S.24 1, ut page 4.

In Florida defendant Dolores has obtained a decree

for separate maintenance as the lawful wife of plaintift

terein See 7 Fla: Supp. 29, affirmed by the Supreme

Court of Florida, 89 S0.2d 645. 646. That case follow:

Florida decisions on ymarita! status. Wood v. Wood, 56

Fla. 882-887, 47 So. 560. The Florida deeree is a fina! judg-

ment entitled to recognition in this state. This in no

manner militates against the ugually enforcible judgment

ef our courts in Gertrude’s case ugainst this plaintiff. Thus

both Florida and New York have fin: lly passed upon the

respective status of defendants Vis-a-Vis plaintiff. The

Complaint sets forth no presently necessary justiciable

“Onreversy between plaintiff and defendants. The plain-

‘“afS Mexican divorce against défendant Gertrude adds

“thing to plaint:ff's rights herein and certainly cannot

. . Al2

move this court in plaintiffs direction in exercising a pos-

oe availuble discretion, See Statter v. Statter, 2 A. sf

CRO ANT SY oe Bel, reversed’? N.Y.2d 668, 163 N.Y.S

: 3, and the carefully documented opinion of Judge Bur)

dismissing complaint therein.

The arguments advanced by plaintiff do not appeal

to this Court’s discretion. Florida certainly has authoried

defendant Dolores to use the name Mrs. Astor. That eee

sents no basis for this court to entertain plain tiff's on.

The fact that the courts of two states (Flor ida and ne

York) have entered respectrve judgments does not war

rant any action in behalf of plaintiff. Suppose plaintiff

should again resort to Mexico's jurisdiction for anotoe

judgment -not available for reeounition’ in this state, to set

hirn free upon the sea of matrimony’ once more. Should he

then again be allowed to come into the courts of New York

to ask our courts to tell him which of three-is his wife? But

plaintiff's reasons advanced herein are equally uncon-

seionable. He would like to be rid of the burden of ce-

ciding what deductions he may take on his income tax

returns. To that end he can await the action of the Bu

reau of Internal Revenue and a review of their realns

by the Federal Courts. Nor is this court me ved by the

plaintiff's ‘alleged sl in ‘the event that he shoul:

-decide to seek*t-recerc:hation with either one or the othe:

of the two defendants. He fears Florida (his lega! re--

Geneve) if hggremgrries Ge:trude and he fears New ¥

if he remarries Dolores. Neither of the women has in-

dicated anv such lkelihecd and plaintif!’s suggesti nis

braven. Nor is the court moved by the possible battic for

plaintiff's remains or effects atte: his demise. That

talniv is not a presentiv forceful argument for entertain-

. ‘ ‘ss . :

- rae 1S reP vy " : “+ , . ay : “wer

jurtsdichion in benhat Of a non-resident.

’

a

Al3

Both as a matter of ! saw and in the exercise of discre-

tion, the complaint is dismissed a: setting forth no souhd

basis for a declaratory judgmetr

See also Bickford v. Bickford. Sup., 50 N.Y.S.2d 15,

affirmed 269 App. Div. 657, 5% N.Y.S.2d 461: Leitman v.

Leitman, 284 App. Div. 959,

v. Guibord, 2 A.D.2d 34, 153 N.Y.S.2d 457

Delores' laint against Astor filed

Nov. 22, 1 in Circuit Court, Dade

Co., Fla., Chancery Case Mo. 174,368,

(R.92-5,- Def. Ex. 1, R.141-2)

2

at Miami Beach, Florida and has

of Florida continuously

The Plai

res} dent

ntiff resides

been a since December:

1953. -The Defendant also resides in Miami Beach. Florida

IT.

.

The parties. were married August 6, 1954 at Ar! ton

‘" : te vee ‘) atric: i RS } a 4)

virginia Thev lived together as husband and wife unti!

a one = ae yb | IO

Cpicmoer Zt, 1954 .

Tv"

i oe »

On September 21, 1954 the Plaintif¢

e laintiff has been living

apart from Defendant throuch his fault, that is

of the Defendant's threats to inflict bodily

misconduct of

commenced living

With her“ par nts. Since then

Dp

because

injury on het

}

and because of other

1} Sy 7 ee eayer a i canal a | are ad F

ture that the Plaintiff would prefer not to allege it but

ef which Defendant is fully aware.

Defendant gave Plaintiff ¢190 when they parte

~nce tnen he has failed and refused to,give her anv mone

135, N.Y.S.2d 518: Guibord °

such an intimate .

a

Al4

to maintain herself or to contribute to her maintenance

The Defendant is a man of vreat inherited wealth. He

has ample ability to maintain and contribute to the main-

tenance of the Plaintiff. Plainuff has-no money. He:

parents. although under no iegal obligation to do so, have

nonetheless supported ‘and maintained her. Plaintiff has

not the means with which to maintain herself and to em-

ploy counsel to bring and prosecute this action.

Wherefore, Plaintiff prays

1. For a decree pendente lite:

‘a’ Requiring Defendant to pay Plaintiff such sum

or sums of money as may be reasonable under th.

circumstances of the parties for:

I} Temporary alimony or maintenance, and

II) Attorneys’ fees and court costs. - .

(b) Enjoining Defendant from molesting, haras-

7

s? om ’

sing or harming Plaintiff.

2. For a final decree:

(a} Granting Plaintiff maintenance or alimony

from’ Defendant unconnected with causes of divorce

under Section 65.10, Florida Statutes.

se tin, laine ff "y . °c” . anel . aed

(b) Granting Plaintiff attornevs’ fees and cou

7 @ «- .

420 Sols

? | a

ao. & Wi

such other and further reiief as Plaintiff mav

be equitably entitled to receive.

Rucerpt frem Astor's so-called Croes |

Claim filed ia the Circuit Court, Dade

Co., Fla., Chamcery Case Zo. 174,368.

(R.93-S, Def. Ex. 1, R,151-2)

727)

be Suck ARAASE. dakawe’ Meee

tc

b) The: said putative marriage was induced bv

eit and fraud on the part of the plaintiff

(ec) -The plaintiff has practiced extreme cruelty upon

the defendant.

‘di That the defendant had a living wife at the time

the aforesaid putative marriage was entered inter

Inasmuch, Therefore. as the defendant is without relief

in the premises save in a court of equity. he respectfully

prays that the aforesaid putative marriage between him

and, the plaintiff be decreed by this Honorable Court to

be null and void, in initio. and forthwith cancelled and

annulled. or. in the alternative. that’ he be given a decree

of divorce a viniculo Matriment from the plaintiff.

And that he may have such other and additional re-

hef in the premises as In equity he mav he entitled to re-

ceive. -

Final Decree entered February 24, 1959. recorded on Feb.

ruary 25, 1958. in Chancery Order Book 1326 page

443, as follows: (A (02 4 =

‘Caption omitted |

This cause-came on for final hearing on the Complaint

‘as amended and Answer. At the conclusion of the plain-

tiff's evidence and the plaintiff Raving closed his case,

defendant moved to dismiss the action. The Court reserved

Twing on the Motion, Defendant thereupon put on her

evidence and rested and the plaintiff thereupon rested

The case was then argued by counsel for. the respect:ve

parties. Defendant ‘also put on evidence in support of her

Petition for Attornevs Fees and Expenses incurred and

‘plaintiff put on evidence ‘in response thereto. Upon con-

sideration thereof it is

Ordered, Adjudged and Decreed that:

1. The Court has jurisdiction over the parties and the

subject matter.

Al6

9 Defendant's Motion to Dismiss this action at the

conclusion of the plaintiff's case be and it is hereby

granted and the Bill of Complaint be gnd it 1s hereby

dismissed.

Section 59.08 Florida Stat ites

55.08 Time for Taking Appeals or Filing

Petitions for ‘Certiorari.

Appeals, including petitions for review by certiorari,

or proceedings in the nature of certiorari, shall he taken

or filed within sixtv davs from and after the entry cf the

order, decision. judgment, or decree appealed from. As

amended, Laws 1945, c. 22854. § 8

Excerpts. from Final Decree dated April t, 1955.

entered in Dolores’ Florida Suppert Action€« . ¥/

The defendant. asserting that he has not been divorced

from a former wife because the decree of a Mexican court

sought and obtained by him is void, contends: that the

parties are not husband and wife. The contention, in my

opinion, is not tenable. It is my view that he cannot ques-

tion the validity of the Mexican decree because he not only

sought and procured it, but took advantage of it by re-

marrving