Tasanilla Hopson v. Delores Palmer Hopson , 221 F.2d 839 ( 1955 )

Tasanilla Hopson deserted his wife, Delores, shortly after their marriage in 1948.¹ Their child was born the following year. Because she refused to divorce him, he instituted divorce proceedings against her in Florida in 1950, shortly after his discharge from the military service and while she was living in a Maryland suburb of Washington, D. C. Delores was neither personally served with process, nor did she appear or otherwise participate in the proceedings. She was aware of their pendency, however, and stated in a letter to Tasa-nilla’s attorneys that “ * * * I interpose no objection to a divorce — but since this is based on lies and gives my daughter no protection don’t expect me to sign anything.” On June 13, 1950, upon service by publication, he obtained a final decree of divorce which provided for payments of $10.00 a week for the support of the child but nothing for his wife. Twelve days later, he entered into another marriage in Kentucky, from which a child has since been born.

Delores brought the present suit for support and maintenance for herself and child on July 14, 1950. At a preliminary stage in -the proceeding, Tasanilla sought dismissal of a motion for maintenance pendente lite on the ground that the parties lacked sufficient residence in or connection with the District of Columbia. The pertinent circumstances are set out in the margin below.² The court ruled against him; at a later s ;age of the proceeding another branch of the court held this ruling tantamount to denial of a motion to dismiss on the ground of forum non conveniens and of binding effect as the law of the case.

Upon trial, the court viewed existence of the husband and wife status as essential to the right to claim maintenance ur.der District of Columbia law.³ According to this view, of course, Delores’ claim for maintenance would be barred if the Constitution’s full faith and credit clause required recognition of the divorce obtained in the ex parte Florida proceedings.⁴ The court found, however that Tasanilla had no bona fide intent to establish a permanent Florida domicile, and that the Florida court was therefore without jurisdiction to enter the decree of divorce. Accordingly, it held the decree not entitled to full faith and credit and granted support ami maintenance relief to Delores and the child.

Tasar.illa brought this appeal urging, in substance, that the District Court erred in (1) failing to apply the doctrine of forum non conveniens to refuse jurisdiction, and (2) refusing to accord full faith and credit to the Florida decree.

(1) Application of the doctrine of forum non conveniens is entrusted to the discretion of the Distrct Court to be exercised upon equitable considerations, and its determination may not be disturbed on appeal except for a clear abuse of this discretion.⁵ Although in the circumstances of this case, we think the District Court would have been warranted in refusing jurisdiction under the doctrine of forum non conveniens, we cannot say that its failure to do so is an abuse of discretion. Moreover, there are certain traditional equitable considerations which, in our view, impel a balance in favor of not disturbing its action. This suit was commenced in 1950. There is no showing that appellant suffered any prejudice in the trial by reason of the appellee’s choice of forum.⁶ So far as the record is concerned, at least, appellant has no permanent residence and it is reasonable to assume from his past itinerant history that, as a practical matter, it would be extremely difficult for the appellee to obtain service upon him in some other forum.⁷ To refuse to exercise jurisdiction at this late date and “put her upon a merry-go-round of litigation in other jurisdictions, with no certainty that any of them could or would exercise jurisdiction in her behalf” would, we think, be unduly harsh and unjust.⁸

(2) We granted a rehearing in banc in this case for the purpose of considering questions flowing from the Supreme Court’s decisions in Estin v. Es-tin,⁹ and May v. Anderson,¹⁰ concerning the recognition to be accorded ex parte foreign divorce decrees under the Constitution’s full faith and credit clause. This consideration necessarily required review of the recent decision upon the subject by a division of this court in Meredith v. Meredith.¹¹

In Estin, the husband obtained an ex parte foreign divorce in Nevada after a New York court, wherein he appeared generally, had awarded his wife a decree for permanent alimony (the equivalent of permanent maintenance under the D.C.Code). Upon obtaining the Nevada decree, he stopped paying under the New York award. She thereupon sued for a supplemental judgment in New York for past due payments. The Supreme Court held that the New York award was a “property interest * * an intangible, jurisdiction over which cannot be exerted through control over a physical thing. Jurisdiction over an intangible can indeed only arise from control or power over the persons whose relationships are the source of the rights and obligations. * * * The result in this situation is to make the divorce divisible — to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony.”¹² The Court also expressed the view that to hold that the Nevada decree wiped out the New York award would amount to a holding that Nevada could “restrain respondent from asserting her claim under that judgment. That is an attempt to exercise an in personam jurisdiction over a person not before the court. That may not be done.” ¹³ Thus, since Nevada never acquired jurisdiction to enter a decree affecting this personal right, the Court approved New York’s enforcement of its prior judgment notwithstanding the Nevada divorce decree.

Later, in May v. Anderson which involved a habeas corpus proceeding in Ohio to determine immediate right to the custody of children, the Supreme Court extended this doctrine of divisibility of divorce by holding that Ohio was not bound to accord full faith and credit to an ex parte Wisconsin decree awarding custody to the ex-husband. “[W]e recognize,” said the Court, “that a mother’s right to custody of her children is a personal right entitled to at least as much protection as her right to alimony.”¹⁴ Mr. Justice Frankfurter pointed out, in a concurring opinion, that he understood the Court’s decision to be only that Ohio was not required by the full faith and credit clause to accept the Wisconsin custody decision but that it could, if it saw fit, treat the Wisconsin decree as binding without violating that clause.

We applied this doctrine of the divisibility of divorce in Meredith v. Meredith.¹⁵ There, the husband sued for limited divorce in the District of Columbia in August 1948. Alimony pendente lite was awarded with the husband’s consent. An amended complaint for absolute divorce was filed by the husband in April 1950. This was later dismissed on his motion under Fed.Rules CivJProc, rule 41(a) (2), .28 U.S.C.A., the husband having moved to Texas. Simultaneously, however, the court permitted the wife to file a counterclaim for separate maintenance, which she did on September 1,1950. On August 27,1951, the husoand obtained a final divorce decree in Texas without provision for alimony or maintenance. Although the husband requested her to appear in the Texas proceedings, she was not personally served with process nor did she voluntarily appear or participate therein. Upon trial of the wife’s counterclaim in October 1951, the District Court held the ex parte Texas divorce entitled to full faith and credit and, accordingly, dismissed the counterclaim as moot. On the appeal we held, inter alia, that the full faith and credit clause did not require recognition of the Texas divorce to the extent of cutting off any right which tbe nonappearing wife may have had to maintenance under the District law; but that the question of recognition or nonrecognition “even as to the issue of maintenance” is left “squarely up to sach individual [forum] to be solved there in conformity with its public policy and in the light of the many conflicting interests' and considerations so patently involved.” ¹⁶ We adhere to this holding.

In the present case also, we think the full faith and credit clause does not operate as a bar to maintenance. We recognized in Meredith that the divisibility doctrine rested on the foreign court’s lack of in personam jurisdiction over the non-appearing spouse and not upon the reduction of her maintenance right to judgment prior to the divorce. We said, “While the Estin decision involved merely the enforcement of a maintenance order entered prior to the foreign divorce, its reasoning would seem to be equally applicable to an original grant of maintenance after the divorce. Either may be done consistently with the full faith and credit clause.” We find no basis in that reasoning for drawing a distinction, so far as full faith and credit are concerned, between an original grant of maintenance after the divorce in a suit filed prior to the divorce, as in Meredith, and such a grant in a suit filed after the divorce, as in the present case. Moreover, it seems to us that it would unduly exalt form over substance to draw any rigid distinction since the claim sued upon in Meredith and the one reduced to judgment in Es-tin flow from the same substantive rights as the one neither sued upon nor reduced to judgment in the present case. We therefore hold that a grant of maintenance in a suit filed after an ex parte foreign divorce is also consistent with the full faith and credit clause.

In Meredith, however, we ruled original awards of maintenance after an ex parte foreign divorce barred by the public policy of the District of Columbia. We held this policy, “based on principles of comity,” required recognition of such divorces and that failure of “the wife to seek alimony in the jurisdiction granting the divorce * * * will bar her from thereafter availing herself of Section 16-415 [the D. C,; maintenance statute], just as failure to obtain alimony at the time a divorce is secured here has the effect of extinguishing a prior D. C; maintenance order.” ¹⁷ On reconsideration we now conclude that we went too far in fixing this blanket rule, since circumstances may exist in particular cases, as we shall describe later, where allowance of maintenance after such divorce would serve, rather than contravene, local public policy.

In fixing a rigid rule, we took the position that § 16-415 of the D. C. Code expressed local public policy against the award of maintenance once a divorce decree has become effective. That section states: “Whenever any husband shall fail * * * to maintain his wife * * * the court, on application of the wife” may order him to pay as maintenance such sums as would be allowed “in case of divorce.” We thought this position supported by our decision in Rapeer v. Colpoys,¹⁸ wherein we expressed the view that once the parties are divorced, they are no longer “husband” and “wife” within the meaning of the maintenance statute. But we are now convinced, and so hold, that the court has general equity powers, which are not supplanted by the statute, and which are broad enough in appropriate circumstances to support a grant of maintenance after an ex parte divorce.

The statute is merely a specific authorization to enter a maintenance decree and is not a limitation on the court’s general equitable powers to enter such a decree. In Tolman v. Tolman¹⁹ the question concerned the trial court’s jurisdiction to award alimony on a petition which did not allege sufficient grounds for divorce. The husband relied on an old Maryland statute, claiming that it defined the court’s historical jurisdiction so as to exclude the power to award alimony unless grounds for a limited divorce existed. The court rejected this argument, reading the statute as an affirmative declaration, not as a negative limitation. Under its general equity power, the court held that it could award alimony even though grounds for divorce were not alleged.

“But the great and important question is at once suggested, why should not the jurisdiction exist to remedy great social wrongs, and to do justice to parties who are otherwise without adequate means of relief? Courts are instituted to redress wrongs and to furnish relief for the violation of the laws of society, and no wrong calls more imperatively for redress than that of a husband against his helpless wife, whom he has pledged himself to protect and defend.” ²⁰

Rapeer recognized that general equity powers survived § 16-415: “We bear in mind Lesh v. Lesh, 21 App.D.C. 475, to the effect that Section 75 is not a limitation upon the power of the Supreme Court of the District of Columbia but a mere legislative recognition of a power which, apart from statute, exists in a tribunal having general equitable powers. And we do not say that Section 75 [now 16-415] operates as a limitation upon the power of the Supreme Court of the District of Columbia to issue a maintenance order against a divorced father for the support of his children.” ²¹ Both before and after the passage of § 16-415, suits for maintenance in the District “have been regarded * * * as equitable rather than legal.” ²²

Equitable considerations, therefore, inevitably are factors to be weighed by the court when its- aid is sought in the enforcement of a wife’s personal marital rights, antedating a divorce. That such rights may not be extinguished by a foreign ex parte divorce decree is clear from Estin v. Estin, supra, and May v. Anderson, supra, as we have already noted. In Rice v. Rice, Mr. Justice Jackson dissenting, succinctly summarized the results attributable to recent decisions when he wrote:

“ * * * However, in addition to the rights grouped under the term consortium, which are terminated by divorce, there are subsidiary rights of a property nature such as support, alimony, distributive interests in personalty, dower and inheritance. These presented difficulties in case of the divorce on constructive service of process on a nonresident dependent in which ther 3 was no real chance to defend. So the Court improvised the concept of ‘divisible’ divorce, Estin v. Estin, 334 U.S. 541, 549, 68 S.Ct. 1218 [92 L.Ed. 1561], a divorce good to end a marriage but invalid to affect dependent property rigtts.” ²³

The Court in its opinion in Rice v. Rice made clear that no personal service was made upon respondent, nor did she in any way participate in the Nevada proceeds gs.

Earlier, in Schneider v. Schneider, we had before us the question of the effect of a Nevada divorce decree upon the obligation of a father to support his son where both were domiciled in the District of Columbia. We pointed out that the father’s voluntary appearance in the Nevada court “did not give that court jurisdiction to determine his obligation for support because neither the father nor the son had a Nevada domicile.” We recognized, as a matter of public policy, that by the law of the District of Columbia the father was bound to provide adequate support for his son and held that the obligation “still exists in spite of the Nevada decree.” We made it explicit that “It is, therefore, the duty of the court in the District of Columbia to compel the father to provide adequate support under its general equity powers.” ²⁴

There is no mystery beclouding the teaching of the Supreme Court in the cases mentioned or our application of it in repeated instances. Since 1877 the rule laid down by the Supreme Court has been as stated in Pennoyer v. Neff:

“ * * * But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose. Process from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tribunal sits cannot create any greater obligation upon the nonresident to appear. Process sent to him out of the State, and process published within it, are equally unavailing in proceedings to establish his personal liability.” ²⁵

It is certain, then, that there are personal rights of a wife acquired through marriage which may survive an etc parte foreign decree. We hold it to be consistent with the public policy of the District of Columbia to include maintenance among them. Nevertheless, a suit by her to enforce such rights is open to the usual equitable defenses. Exercise of the court’s power to grant maintenance after an ex parte foreign divorce might, in many situations, encounter such defenses; for example, where there has been collusion, concealment of the wife’s own misconduct during coverture, laches or, generally, inequitable conduct such as might be involved in a case of blackmail. In other circumstances, aid of the court in the assertion of a wife’s surviving right to maintenance might well serve local public policy. Equitable considerations will govern, and solution of the question will lie in the exercise of a discretion guided by the circumstances of the particular case such as courts of equity have traditionally been called upon to exercise in the field of family relations. Clearly, an uncompromising rule which either allowed or denied maintenance claims after an ex parte foreign divorce without regard to the facts of the particular case, would result in inequities and hardships inconsistent with sound public policy.²⁶

We therefore modify the rule announced in Meredith by recognizing that, guided by the sort of equitable considerations we have described, District of Columbia courts, consistently with local policy, may allow maintenance after an ex parte foreign divorce under their general equity power. It follows that there may be no necessity for a frontal attack upon the validity of the foreign ex parte divorce, though the circumstances surrounding its procurement may always be viewed as material equitable considerations. There are two important reasons why courts should seek to avoid such an attack. First, because of the deference due to the proceedings of a sister state;²⁷ and second, the result of the attack might well be to stigmatize unnecessarily a subsequent marriage and the children bom thereof. Since the question of maintenance does not depend in each case upon the invalidity of the foreign divorce, sound judicial practice ordinarily will avoid a frontal attack upon such decree.

Accordingly, the preferable procedure in the circumstances of the present case calls for its remand to the District Court for redecision under the principles set forth in this opinion. If the facts of the case permit the separate maintenance action to be entertained and decided without the court’s reaching the question of the validity of the ex parte foreign decree, the District Court should follow that course. If in fact and in law the foreign decree is invalid, the District Court is free so to decide, but only if it must.

Reversed and remanded for reconsideration and redecision under the principles set forth in this opinion.

1 . Their marriage took place on the Island of Guam where he was stationed as a member of the armed forces and she as a civilian worker.

2 . When Tasanilla first entered military servieo in 1942, he was domiciled in Kentucky. In Juno 1949, while still in the service, he moved to the District of Columbia for approximately six months. As of January 9, 1950, the day he was released from active duty, he claimed as home both Kentucky and Michigan where his mother lived. For the period from January 10 to June 25, 1950, he claims to have been domiciled in Florida. He filed and paid income taxes there, but during that period, and until March 1952, his car was registered in Michigan. He left Florida on June 13, and after stopping briefly in the District of Columbia, went to Indiana, to be married. There, on June 23, 1950, under oath in a marriage license application, he gave his “present residence” as-Murray, Kentucky, and his “new address” as 139 Joliet Street, Washington, D. C-Thereafter, in July 1950, approximately one week before the instant complaint was filed, he returned to the metropolitan area of Washington, and signed a year’s lease on an apartment located in Maryland at the District of Columbia line. In August 1950, in applying for active-duty with the Air Force, he gave his mailing and permanent address as 4920 Deal Drive, S.E., Apt. 201, Washington 20, D. 0. As of November 4, 1950, appellant was employed as a salesman in the District of Columbia. At the time of trial he gave his legal residence as 4920 Deal Drive, Oxon Hill, Maryland. His car was then registered in Virginia. At the time complaint was filed in the present suit, Delores lived in Maryland, just across the District of Columbia line. About one week later, she moved into the District with her minor child. She continued to live and work in the District until January 1952 when her job was transferred to Tucson, Arizona.

3 . The court apparently relied on our maintenance statute which provides that “Whenever any husband shall fail or refuse to maintain his wife and minor children, if any, although able so to do, the court, on application of the wife, pendente lite and permanently, may decree that he •shal pay her, periodically, such sums as would be allowed to her as pendente lite or permanent alimony in case of divorce for the maintenance of herself and the minor children, if any, committed to her care by the court, and the payment thereof may be enforced in the same manner as directed in regard to the payment of permanent alimony.” D.O.Oode, § 16-415 (1951).

4 . By an ex parte proceeding, we mean, of course, one in which there had been neither personal service of process nor voluntary appearance or participation by the spouse sued.

5 . Simons v. Simons, 1951, 88 U.S.App.D.C. 180, 187 F.2d 364; Ford Motor Co. v. Ryan, 2 Cir., 1950, 182 F.2d 329.

6 . See Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055; Ford Motor Co. v. Ryan, supra, 182 F.2d at page 330.

7 . See note 2, supra.

8 . Melvin v. Melvin, 1942, 76 U.S.App.D.C. 56, 59, 129 F.2d 39, 42, concurring opinion of Associate Justice Rutledge.

9 . 1948, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561.

10 . 1953, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221.

11 . 1953, 204 F.2d 64.

12 . 334 U.S. at pages 548-549, 68 S.Ct. at page 1218. The Supreme Court here applied the doctrine of and cited Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 535, that the state of domicile of a debtor acquires no power to determine the personal rights of a creditor unless the latter has been personally served or appears in the proceeding. “We know of no source of power which would take the present case out of that category,” said the Court.

13 . Ibid.

14 . 345 U.S. at page 534, 73 S.Ct. at page 843. At page 533, of 345 U. S., at page 843 of 73 S.Ct., Mr. Justice Burton wrote: “* * * we have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam.” And at page 536, of 345 U. S., at page 844 of 73 S.Ct., Mr. Justice Frankfurter observed: “There are, of course, adjudications other than those pertaining to children, as for instance decrees of alimony, which may not be definitive even in the decreeing State, let alone binding under the Full Faith and Credit Clause.”

15 . 1953, 204 F.2d 64, 65. See Faye v. Faye, Sup.Ct.1954, 139 N.Y.S.2d 88; Armstrong v. Armstrong, 1954, 162 Ohio St. 406, 123 N.E.2d 267.

16 . 204 F.2d at page 66.

17 . 204 F.2d at page 67.

18 . 1936, 66 App.D.C. 216, 85 F.2d 715. Tliat case, however, may be distinguished on the ground that there the wife appeared in the foreign divorce proceedings.

19 . 1893, 1 App.D.C. 299.

20 . Id. 1 App.D.C. at page 308. To the same effect, see Lesh v. Lesh, 1903, 21 App.D.C. 475, where the court found a general equitable power to award alimony pendente lite in maintenance actions although the Code, which provided for it in divorce actions, did not specifically provide for it in maintenance actions.

21 . 66 App.D.C. at page 219, 85 F.2d at page 718.

22 . Franklin v. Franklin, 1948, 83 U.S.App.D.C. 385, 386, 171 F.2d 12, 13. In Bates v. Bates, 1944, 79 U.S.App.D.C. 14, 15, 141 F.2d 723, 724, this court pointed out that although the District Code does not authorize awards of maintenance and suit money pendente lite, such awards are within the District Court’s discretion, under its general equity powers. To the same effect see Howard v. Howard, 1940, 72 App.D.C. 145, 146, 112 F.2d 44, 45.

23 . 1949, 336 U.S. 674, 679, 69 S.Ct. 751, 754, 93 L.Ed. 957.

24 . 1944, 78 U.S.App.D.C. 383, 384-385, 141 F.2d 542, 543, 544, emphasis supplied.

25 . 95 U.S. 714, 727, 24 L.Ed. 565.

26 . Cf. Gullet v. Gullet, 1945, 80 U.S.App.D.C. 73, 349 F.2d 17, and Gullet v. Gullet, 1949, 83 U.S.App.D.C. 12, 174 F.2d 531, in the second of which eases the trial court found the foreign divorce invalid. And see Hobbs v. Hobbs, 1952, 91 U.S.App.D.C. 68, 197 F.2d 412; and Huggs v. Huggs, 1952, 90 U.S.App.D.C. 237, 195 F.2d 771, where the doctrine of divisibility in connection with the right to maintenance was neither considered nor discussed.

27 . In Rescue Army v. Municipal Court, 334 U.S. 549, 569, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947), the Supreme Court said that it has followed a policy of “strict necessity” in disposing of constitutional issues.