Simons v. Miami Beach First National Bank
Opinion of the Court
delivered the opinion of the Court.
The question to be decided in this case is whether a husband’s valid Florida divorce, obtained in a proceeding wherein his nonresident wife was served by publication only and did not make a personal appearance, unconstitutionally extinguished her dower right in his Florida estate.
The petitioner and Sol Simons were domiciled in New York when, in 1946, she obtained a New York separation decree that included an award of monthly alimony. Sol Simons moved to Florida in 1951 and, a year later, obtained there a divorce in an action of which petitioner had valid constructive notice but in which she did not enter a personal appearance.
Petitioner’s counsel advised us during oral argument that he no longer challenged the judgment below insofar as it embodied a holding that the 1952 Florida divorce was valid and terminated the marital status of the parties. We therefore proceed to the decision of the question whether the Florida courts unconstitutionally denied petitioner’s dower claim.
The short answer to this contention is that the only obligation imposed on Sol Simons by the New York decree, and the only rights granted petitioner under it, concerned monthly alimony for petitioner’s support. Unlike the ex-husband in Estin, Sol Simons made the support payments called for by the separate maintenance decree notwithstanding his ex parte divorce. In making these payments until his death he complied with the full measure of the New York decree; when he died there was consequently nothing left of the New York decree for Florida to dishonor.
This conclusion embodies our judgment that there is nothing in the New York decree itself that can be construed as creating or preserving any interest in the nature
Insofar as petitioner argues that since she was not subject to the jurisdiction of the Florida divorce court its decree could not extinguish any dower right existing under Florida law, Vanderbilt v. Vanderbilt, 354 U. S. 416, 418, the answer is that under Florida law no dower right survived the decree. The Supreme Court of Florida has said that dower rights in Florida property, being inchoate, are extinguished by a divorce decree predicated upon substituted or constructive service. Pawley v. Pawley, 46 So. 2d 464.
Affirmed.
Petitioner was served by publication while still living in New York and received copies of the order for publication and the divorce complaint. She did not enter an appearance in the Florida proceeding on advice of counsel.
21 Fla. Stat. Ann. 1964, § 731.34 provides as follows:
“Whenever the widow of any decedent shall not be satisfied with the portion of the estate of her husband to which she is entitled under the law of descent and distribution or under the will of her husband, or both, she may elect in the manner provided by law to take dower, which dower shall be one third in fee simple of the real property which was owned by her husband at the time of his death or which he had before conveyed, whereof she had not relinquished her right of dower as provided by law, and one third part absolutely of the personal property owned by her husband at the time of his death ....”
Petitioner attacked the validity of the divorce on the grounds: (1) that- Sol Simons had defrauded the Florida courts by falsely claiming residence, (2) that the New York decree was a bar to the divorce suit and that Sol Simons had defrauded the court by failing to disclose the prior New York decree, (3) that the divorce decree on its face showed want of jurisdiction and (4) that after petitioner received notice of the divorce suit Sol Simons lulled her into inaction. The trial court made findings of fact adverse to petitioner on all points and dismissed the suit with prejudice. In affirming, the Florida District Court of Appeal held that “[t]he prior New York separate maintenance decree was not a bar to a divorce suit by the husband, and his failure to disclose it in his complaint was not a fraud on the court. . . . Any affirmative defense the prior suit may have afforded should have been presented in the divorce suit.” 157 So. 2d 199, at 200.
Neither the Florida trial court nor the District Court of Appeal expressly discussed the merits of petitioner’s claim that the divorce, even if valid, did not destroy or impair her dower rights. But since Florida law allows dower only to a decedent’s wife, see note 6, infra,
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. . . .”
In Pawley the Supreme Court of Florida distinguished the dower right from the right to support, saying at 46 So. 2d 464, 472-473, n. 2:
“In this, if not in every jurisdiction, right of dower can never be made the subject of a wholly independent issue in any divorce suit. It stands or falls as a result of the decree which denies or grants divorce. It arises upon marriage, as an institution of the law. The inchoate right of dower has some of the incidents of property. It pa-rtakes of the nature of a lien or encumbrance. It is not a right which is originated by or is derived from the husband; nor is it a personal obligation to be met or fulfilled by him, but it is a creature of the law, is born at the marriage altar, cradled in the bosom of the marital status as an integral and component part thereof, survives*86 during the life of the wife as such and finds its sepulcher in divorce. Alimony too is an institution of the law but it is a personal obligation of the husband which is based upon the duty imposed upon him by the common law to support his wife and gives rise to a personal right of the wife to insist upon, if she be entitled to, it. It has none of the incidents of, and is in no sense a lien upon or interest in, property. Consequently, the right of the wife to be heard on the question of alimony should not, indeed lawfully it cannot, be destroyed by a divorce decree sought and secured by the husband in an action wherein only constructive service of process was effected.”
A petition for writ of certiorari to this Court alleged, “Petitioner is thus permitted to file another suit for alimony, but her contract of marriage is annulled and her inchoate dower rights destroyed without due process of law.” Brief for petitioner, p. 9, Pawley v. Pawley, No. 325, October Term, 1950. The petition was denied, 340 U. S. 866.
Concurring Opinion
concurring.
I am happy to join the opinion of the Court because it makes a partial retreat from Vanderbilt v. Vanderbilt, 354 U. S. 416, a decision which I believe must eventually be rerationalized, if not entirely overruled.
The Vanderbilt case was this. The Vanderbilt couple was domiciled in California. Mr. Vanderbilt went to Nevada, established a new domicile, and obtained an ex parte
Two rules emerged from the case, neither of which, I suggest with deference, commends itself: (1) an ex parte divorce can have no effect on property rights; (2) a State in which a wife subsequently establishes domicile can award support to her regardless of her connection with that State at the time of the ex parte divorce and regardless of the law in her former State of domicile.
The first rule slips unobtrusively into oblivion in today’s decision, for Florida is allowed to turn property rights on its ex parte decree. A concurrence disputes this, but I do not understand how the Court’s language in this case can be read as anything less. If I may paraphrase only slightly, the Court says, “Insofar as petitioner argues that since she was not subject to the jurisdiction of the Florida divorce court, its decree could not
Because New York was petitioner’s State of domicile at all times relevant to this case and did not purport to invest her with any rights to property beyond those she received from her husband, the second rule is not involved here. My hope is that its time will come too. I continue to believe that the views expressed in my Vanderbilt dissent embody a more satisfactory and workable approach to the law of “divisible divorce” (Estin v. Estin, 334 U. S. 541) than can be distilled from existing Court opinions.
“Ex parte” throughout this opinion is used to denote a situation in which the divorce court has not obtained personal jurisdiction over the defendant spouse.
The Vanderbilt result might have been proper on any of three grounds. (1) If New York was Mrs. Vanderbilt’s State of domicile at the time of the ex parte Nevada divorce, New York law investing a wife with support rights should not be overborne by an ex parte decree in another State. (2) If California was Mrs. Vanderbilt’s domicile at the time of the Nevada divorce and under California law support could have been awarded, New York should also be free (though not bound) to award support. (3) If Mr. Vanderbilt owned property in New York at the time of the ex parte divorce, New York might arguably be free to hold that ownership of New York property carries with it the obligation to support one’s wife, at least to the extent of the value of that property.
The Court did not concern itself with the location of Mrs. Vanderbilt’s domicile or Mr. Vanderbilt’s property at the time of the Nevada divorce.
Dissenting Opinion
dissenting.
We would dismiss the writ of certiorari in this case as improvidently granted, believing that, as the Court’s opinion clearly demonstrates, no federal question is presented. There exists no question under the Full Faith and Credit Clause, because Sol Simons, even after his Florida divorce, “complied with the full measure of the New York decree,” ante, at 84.
No other federal question is even remotely suggested in the present posture of this case. Petitioner asserted in her petition for a writ of certiorari that “[t]he Courts of Florida have denied to the widow, Lucy C. Simons, her constitutional property rights to which she was entitled ... by the mere subterfuge of an ex parte divorce case in the Courts of Florida, where the Florida Court did not have jurisdiction because of the lack of proper residence.” We were advised at oral argument by petitioner’s counsel, however, that petitioner no longer challenged the judgment below insofar as it embodied a holding that the 1952 Florida divorce decree was valid and terminated the marital status of the parties.
The only possible questions which remain in this case, therefore, are questions of state law which are of no proper concern to this Court.
Dissenting Opinion
concurring.
I agree completely with the Court’s judgment and opinion, and add these few words only in reply to the suggestion of my Brother Harlan that the Court here is making “a partial retreat from Vanderbilt v. Vanderbilt, 354 U. S. 416.” I do not think that today’s decision marks any “retreat” at all from the opinion or holding in Vanderbilt, and I do not understand the Court so to regard it. Vanderbilt held that a wife’s right to support could not be cut off by an ex parte divorce. In the case before us, Mrs. Simons’ Florida dower was not terminated by the ex parte divorce. It simply never came into existence. No one disputes that the ex parte divorce was effective to end the marriage, so that after it Mrs. Simons was no longer Mr. Simons’ wife. Florida law, as the Court’s opinion shows, grants dower only to a woman who
Reference
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