*1 v. GRIFFIN. GRIFFIN February 25, Argued December 1945. Decided No. 86. *3 pro se. filed a argued Petitioner the cause and brief A. M. Goldstein and filed a brief argued cause respondent. opinion Stone delivered
Mr. Chief Justice Court. brought of the District in the district court
This is a suit sought to recover respondent in which Columbia, pe- against secured judgment which she had amount of a York for in in Court of New Supreme titioner is the extent for decision alimony. question arrears of adjudication New York permits which due process jurisdiction. in recovery another to be made the basis for matter, confusing in and irrelevant The record abounds gleaned papers from the following but the facts On in which it contains. proceedings the New York court the State of New 1924, Court of Supreme June divorcing re- interlocutory judgment York entered its judgment was, petitioner, from spondent respond- pay should modified to provide annually equal $3,000 ent the sum residents were then monthly parties installments. Both contested. divorce action was York, of New and the has re- though he left Petitioner New. time, intermittently since jurisdiction turned to the up again took he ever the record does show whether District resident of the Petitioner was a residence there. begun. at the time this suit was Columbia original pro- respondent In 1935 moved divorce ceeding contempt for his failure punish petitioner directed the decree pay installments of petitioner, conformity to New divorce, and original modify made a cross-motion to procedure, *4 reducing due installments judgment by past and future the New York court entered an alimony. Thereupon referring order to referee for determination two of motions, (a) fact the amount of by issues of raised unpaid petitioner installments of due from respondent, (b) petitioner’s ability pay and then them. litigated questions parties These were contested hearings referee, report January 7, whose petitioner then due from re- the amount 1936, found alimony, that had spondent-as arrears > showing credible in- present any testimony failed to his ability supreme The New York court then entered pay. February 25, 1936, declaring its order of there was from petitioner respondent period ending due for the October arrears and accrued interest $18,493.64. appeal sum of Petitioner’s from this order to the Division Appellate of the New York supreme court was for want of prosecution. dismissed later, respondent
Some time made a further motion supreme court for an order directing county clerk money judgment to enter as a the arrears of alimony due unpaid under the of divorce. This motion granted, and an order was entered February 19, 1938 directing the clerk to docket in favor of re- spondent against petitioner in the $25,382.75. sum of As indicated the order this amount up was made of the following items:
Installments of alimony accrued to Oc- 25,1935,
tober found due the order supreme court of February 25, 1936.........................;... - $18,493.64 Interest this amount to entry date of
of the 1938 order.................. 2, 589.11 Installments of alimony due from Oc- 25,1935,
tober to the date of the 1938 order............................ 3,750.00 installments..,....... Interest on these
$25,382. 75 A judgment respondent recover this amount from petitioner and have execution upon it was entered clerk on February 23, Both the order of February 19,1938 and upon were parte, entered ex without notice to petitioner, as then seems to have been *5 permitted under 538 of the New York § Civil Practice Thayer Thayer, Act. App. 268, Div. 129 N. Y. S. (1st Dept.) -1 in Petitioner, by his answer the present suit on this judgment, up set as judg- defenses that ment of February 1938 entered him, without notice to and was for that reason null and void for want of due process, and also “because gross of fraud its incidents, and its procurement, and in making its and entry, and in monetary its contents, and in the amount claimed to owing be due and it,” under and so was not entitled to any recognition in the District of Columbia.
On motion for summary judgment, supported by plead- ings, affidavit and establishing admissions the several judgments, orders and records of the New York supreme court to which we referred, have the district court ordered summary in the sum of in- $25,382.75, with terest from February 23, 1938. The appeals court of for the District affirmed opinion. without granted We cer- tiorari, 326 U. 705, urges S. petition sufficiency of the defenses raised below.
By (d) Rule 56 of the Rule's of Procedure, Civil court, on a motion for summary judgment, is required to entry Since the of the 1938 1171-b of the New York § Civil Act Practice has been 431, amended, added Laws Ch. Laws Ch. provide: so as to 1171-b. Enforcement execution “§ or order in divorce, separation action for husband, or annulment. Where the an action divorce, for separation, annulment, nullity or declaration of marriage, a void paying any makes default money sum of required by directing or order payment thereof, may the court directing make an entry order arrears, together amount of such with ten dollars costs and dis- application bursements. The such order shall such notice may to the husband as the court judgment may direct. Such be en- forced any execution provided by other manner law for the money judgments. collection of provided The relief herein is in for. addition to every remedy and other to which the wife (Italics entitled under the supplied.) law.” the evidence pleadings by examination ascertain éxist without substantial material facts what actually facts material are what controversy and *6 make an order thereupon to controverted, and faith good con- without substantial appear facts that specifying the directing proceedings such further troversy, and pro- it of the trial just. purposes as are For the action estab- shall be deemed specified vided that the facts so present In the accordingly. the conducted lished and trial summary judg- in record, and order that the state of the becomes may properly followed, ment procedure appear facts without sub- necessary to determine what in controversy, light the of those facts to stantial and just. direct the as are proceedings such further action following controlling significance this case are the Of decree facts of record: or uncontroverted directing supreme in 1926 by rendered New court $3,000;'the alimony annual the sum of payments of supreme proceed- New York court the same order of the determining of an between ing litigation as a result active February 25, 1936, there was due parties that as of respondent from of ali- payable petitioner arrears $18,493.64, representing in the sum of installments mony 1935, date, October with 25, interest to that accrued and that entitled to reduction due; finally, the amount New supreme court of incorporated adjudged amount to be due the arrears of alimony with found the 1936 interest order to have accrued 25,1935. October have examined the New York law, and conclude
We the 1926 alimony New York was, decree under subject York practice, power New to some of modification pro nunc tunc as to alimony accrued but unpaid up to the time of modification. Act, See New York Civil Practice 240.2 Under the local 1170; practice, Laws Ch. § accrued under a decree divorce alimony which has execution unless and until a not be collected by accrued but is docketed alimony unpaid the amount of Thayer order of the court which issued decree. v. Posner, Thayer, supra; Ostrin v. Misc. 313, 215 N. Y. S. 259. And motion to docket as a arrears decree, awarded under prior the husband may defend on grounds that the part or some of it is not due because of the death or remarriage Note, wife, Kirkbride v. Van 275 N. Y. 852; N. E. 2d obligation or that the discharged has been payment Karlin, Karlin otherwise, 32, 19 280 N. Y. ; N. E. 2d 669 or that changed circumstances have so as to justify a re duction of alimony already accrued by modification of *7 Dusen, Dusen Van v. Van decree, App. 258 1020, Div. 17 Dept.); Cunningham (3d N. Y. 2d 96 S. v. Cunningham, 261 App. 973, Div. 25 N. 933, Y. S. 2d 934 (2d Dept.); Eisinger Eisinger, App. 1031, v. 261 Div. N.Y. 2d 22 (3d Dept.). S. Sistare, The York New law described in Sistare v. 218 U. S. significantly
decided in differs from the more recent New York governs case, law which this as will be seen from the authorities cited. Ch. 240 of the Laws of 1925 amended 1170 of the Civil Practice Act § provide part: so in separation as to “Where an action for divorce or brought by wife, court, either except husband or as otherwise expressly prescribed by statute, give, must either in the final orders, or one or more judg made from time to time final ment, justice such requires, directions as parties, between the . . . brought by where the wife, support action is plaintiff. for the of the court, by order, upon application The party either of to the action, . . . other, given after due notice to the such manner prescribe, any as the court shall judgment, may at time after final annul, vary modify directions, or such inor case no such or direction made, directions shall have by inserting been amend it such direction justice or requires directions as support plaintiff ... for the of the judgment in such final or order or orders. . . without judgment was entered the 1938 Concededly without by petitioner, and appearance notice to actual give him notice process calculated any of of form service Shoe Co. v. International Compare proceedings.' of the of the 320-321. Because Washington, S.U. thus de petitioner was omission, and to the extent open raise defenses otherwise opportunity of an prived against docketing him of under law New was want of alimony, there judgment for accrued jurisdiction of that hence want judicial process, due rendition prerequisite to the petitioner over the person against v. him. McDonald personam of a 437, 459. Mabee, Reid, 11 How. 90; 243 U. S. cf. Webster v. petitioner’s récord as only indication in resi of the entry time is a dence at the of the he then itself that was a resident recitation But is immaterial District Columbia. of the a domiciled purposes whether or present within or time, tempo of New at either resident juris State, of some without the or a resident other rarily that a plain It case diction. against
personam directing petitioner, execution to issue defenses, all to cut off available could purporting and thus any theory over power not be rendered State’s notice him, personal some form of or substi without Pizzutti, 13, 18-20; Wuchter 276 U. S. tuted service. v. Laws, 75; compare § Restatement Conflict Meyer, Milliken 311 U. S. Such notice cannot be judgments with even in the case of dispensed rem with *8 jurisdiction cpurt respect property within 398, rendering judgment. Holly, Roller v. 176 U. S. 409.
A procedural obtained violation of due is not entitled full faith process and credit when sued jurisdiction. Exchange another National Bank 257; Wiley, Wayne 195 U. Old v. S. v. Mc Assn. Life Donough, Baker, 204 U. 23; Co., S. Baker v. Eccles & Moreover, 242 U. S. process requires due jurisdiction no give other shall effect, even as a matter comity, to a acquired elsewhere without due process. Restatement Judgments, 11,§ Comment c.
While undoubtedly it is decree, true that the 1926 taken with the New York practice subject, gave on the petitioner notice entry at the time of its pro- that further ceedings might be taken in judgment to docket form the obligation to pay accruing installments under the decree, find in ground we this no for saying process that due does require further notice of the time place and of such proceedings, further inasmuch they undertook substan- tially rights to affect his ways which the 1926 decree By did not.3 1170 of § the New Act, York Civil Practice was afforded the opportunity to move to modify decree pro nunc right tunc. The afforded that section is a one, substantial may, under the law York, of New be exercised by him, effect way of defense, in addition to payment, the defense of pro- ceeding begun his wife to docket a for ac- alimony. Dusen, crued See Van Dusen v. supra; Van Cunningham Cunningham, v. supra; Eisinger Eisinger, supra. As we read the which recited that the alimony was “due unpaid,” and directed the issu- ance of execution for collection, its it purported to cut off payment defense of claim under peti- § might tioner been prompted assert, have and which he apprehension We do not share in the providing the cost of satisfy such process requirements notice as will due pro each time a ceeding begun to docket an accrued installment of ineommensurately high. will be In various statutes New by mail, provide reasonably has been able to for notice which is adapted inexpensive provide operation. actual notice and in its 229-b; Act, Property New York Civil Practice New York Real § Law, 442-g; Law, 52, 52-a; New Vehicle and Traffic § §§ Durlacher, see also 329, 17 Durlacher v. 173 Misc. N. Y. S. 2d 643. *9 230 which culmi- very proceeding in the right to assert
had right could not upon.4 That judgment sued nated him that give failure to notice of nugatory by rendered be proceeding. York New presume must that
It is said that we alimony judgment for accrued requires that a practice must, quite apart been without notice which has docketed be the de- set aside on process requirements, from due showing that he had application to the court fendant’s this From alimony.5 defense to the claim accrued a judgment did deprive to follow that the it is said any right had, which he or of previously of ground judgment procured by be that fraud vacated on A urged may perhaps rendition, the fraud its and the State of against But a demonstration defense its enforcement elsewhere. as a necessarily alimony paid would not establish that been that has fraudulently procured judgment been the wife’s for arrears had a they paid. been representations court that had not There to the false finding payment many of will have turned instances in which a are questions fact or law which a defendant was on substantial heard, which it' could not be said that his but as to entitled Moreover, practiced some avail antagonist had fraud on the court. example, change as for payment, other than defenses able such nature to afford no as basis husband’s are circumstances, attacking fraudulent. App. 270-271, Thayer Thayer, 129 N. Y. Div. S. In dictum, “If by way the court is misled and an said it was difficulty docketed, the will find no improperly defendant installment that But case decided having mistake corrected.” permitting Act adoption the-New Civil Practice of 1170 of § by reducing any alimony pro nunc decree tunc modification accrued, alimony. supra. See note We cannot amount of assume- opinion contemplated by relating “mistake” was one not that the judg discharge. practice under payment or New a Whether alimony, notice, opened docketed without could be ment for accrued pro tunc, the amount of accrued reduced nunc remains speculation. any case, appear matter for Tn 1170itself does not a § motion aside docketed for authorize a to set directing payment accrued under an earlier decree of installments alimony. might make, which he have been entitled to defense wanting therefore'the is not due process. then runs that since such argument satis- *10 process fies due it is entitled to as much faith and credit in jurisdictions This, in 'other as it has New York. it is suggested, judgment may means that the be made the in subject of suit another jurisdiction, basis but there to grounds all those which setting defenses would be for aside New York.
But if want of were, more, notice without sufficient a ground setting judgment for aside the under the New practice, hardly this could be held amount anything recognition by more than New York of the constitutional give that a court not act precept personal judg a ment the absence notice. If New York, by prac its tice, recognizes the ineffectiveness of such judgment, a that made, ground not be for giving could a judgment effect any judgment elsewhere more than other rendered without might It any judgment notice. as well that be said which validly does not cut off defenses because rendered without made process may due the. basis of suit elsewhere sub ject to those defenses. To the extent that New York re if it fuses, refuse, judgment does to set aside the of 1938 there be showing unless affirmative that there some meritorious substantive entry, defense to its there is an power assertion court to enter money judgment without, execution and issue it. notice. The assertion by judgment for the first time thé 1938 of power to ad for judicate petitioner’s liability accrued ¿limony and to by execution, Thayer direct its enforcement see Thayer, does not differ its supra, nature and constitutional from the like power effect assertion of to issue execution rendered, withoutjaotice. any judgment other process Due judicial forbids exercise of power which, but for the constitutional infirmity, would substantially affect a rights. defendant’s suggestion To the that under asserted power practice New presumed adjudication the final not include does had, might, have petitioner the defenses
any of must be required, the answer is therefore notice immediate issuance of authorizes the direction that reconcile unable to We are execution. satisfy an on execution be seized property petitioner’s to be found the first time obligation obligation is, that the theory with the unpaid” “due adjudi- only tentatively thus purposes, constitutional levy upon any that a doubt There can be no cated. would sub- might have New York property instances, permanently least some at stantially, and say that this cannot could done rights. We his affect justify levy. said'to proceeding notice without if could, he knew of the though petitioner Even *11 levied, judg- move to set the actually is execution before judgment the from its due that could not save aside, ment pur- it the New York infirmity, practice since process levy of execution port to authorize judgment. proceeding or the notified clause the by process judgment virtue of due Since adjudicate petitioner’s rights York to ineffective New cannot be purposes, made the instru- enforcement for obligation enforcing elsewhere the purportedly ment if say it. And even we were to that adjudicated practice, the New York and without reference virtue the 1938 is not an assertion of process, due 'to petitioner’s judicial power property obliga- to bind for the judgment purports establish, to tion which such a obviously nothing would add to the 1926 decree enforcing obligation juris- basis for another as a diction. Neither nor the earlier decree more establish original obligation do than would- to subject pay alimony supposed to defenses which New if practice preserve process would due did not. It to follows that the extent that adjudge purports owing as due and arrears of alimony- October 25, 1935, accrued since the end the period cov- order, ered the 1936 it is ineffective to establish peti- liability, tioner’s him deprive or to personal defenses liability to his asserted for those arrears.
But the so far itas confirmed the ad judication of alimony the amount of and interest due as of October 1935, stands on a footing. different It has suggested, not been and we have any not found New York authority holding, questions with respect to payment or to the modification of the alimony decree pro nunc which petitioner might tunc raised or have raised proceedings the 1936 were open thereafter himto as to the accrued installments which subject were the of his motion modify the decree. The 1936 order became final upon petitioner’s the dismissal of appeal it, from and adjudication parties an between the arrears alimony owing were then by petitioner due and to re spondent specified we amount. As said Barber Barber, 77, 82, Sistare, 323 U. S. paraphrasing Sistare v. 218 U. S. where a decree alimony is made the basis “ of an action another jurisdiction, ‘every reasonable implication must be against resorted to the existence of’ power modify revoke installments of al ‘in ready accrued absence of clear language manifesting ” an intention to confer it.’ might
Defenses which otherwise have open been pe- titioner the 1938 proceeding with respect *12 to October 25,1935 accrued must having thus oe taken as by been foreclosed the 1936 proceedings, of which peti- had tioner actual notice, and which he actively partici- pated. The 1938 judgment, so far as it confirmed the 1936 by order which petitioner already was bound, impaired rights no of petitioner, and foreclosed no defense which he had not had opportunity to offer. process Due does not rights of confirmation given that notice
require adequate of proceeding established theretofore given. notice was therefore entitled
. shown, respondent the facts Upon suit on present maintain the adjudicated due interest, thus amount, with to.be by the adjudicated, confirmed 1936, and as so the order of Sistare, we held supra, of 1938. For Sistare v. clause of the Constitution full faith and credit past court to render required Connecticut under a alimony which had accrued due installments of alimony, right to which York decree for future New existing vested under the then New wo held had become might subject though decree to mod- law, even installments prospectively ification as to future further of the New York court. orders give petitioner have said that the failure to notice We proceeding prejudice him any did as to might pro- the defenses which he have raised the 1936 ceeding. although purported so, But do notice, because without could not judgment,, rendered discharge obligation defenses going foreclose' to the arising established the order of and since its date. that, upon proceedings upon It follows further the re- mand of this cause court, respondent to the district will having be taken as established the amount of 25,1935 remaining accrued October due unpaid subject February 25, 1936, any subsequent defense discharge going to the obligation of the established, so which petitioner should be permitted raise, if he has.
In present state the record, and because limited questions nature of the presented argued here, we do not determine the respondent extent to which may, upon such further proceedings appropriate as are return of this case to the court, district recover, upon the
235 decree, installments of which have accrued October 1935. While the 1926 since decree is must be the foundation of any right record and respondent accruing of alimony has to recover arrears since October 25, 1935, pleadings her make it sufficiently clear was based present upon suit rather upon the decree. If respondent than is entitled to base alimony accruing a suit for installments of after October decree, 1935 on the 1926 she misconceived her has seeking re by cause of action as to those installments judgment, them is by cover virtue the 1938 as to them because obtained notice. invalid without But prejudiced mistake, is not petitioner respondent’s regard for since he was entitled upon the suit as one he judgment, required interpose was not defenses apt if which would the suit the 1926 were decree. The suit on present form, its is not as if it were decree, be viewed on the 1926 a new and of action, different cause and penal is not to be not, having already ized for raised his defenses to a claim presented by respondent’s pleadings. remanding In we leave district court free to consider whether re spondent, upon issues appropriately in conformity framed summary judgment to the procedure, amended pleadings, recover on the basis of the 1926 decree, alimony accruing arrears of since October 1935.6 Only a word need be said as to petitioner’s defense that was procured by fraud. Although his legal answer pieads his conclusion recognition not entitled to because “of gross fraud its incidents, procurement,” its etc., etc., his answer showing sets up alleged no facts A part fraud. of his answer and an unverified by petitioner statement filed Barber, 81; Jacobs,
6 See Barber v. 323 U. S. at The Enforcement Foreign Alimony Decrees for (1939), Contemporary &Law Problems, 250, 263-4. were summary judgment motion response to evidently because court, .ir- trial stricken
ordered charge of fraud In these the scandalous. relevant *14 the machinations that by general statements elaborated racial, and their parties, counsel of York of the New who have judges with the religious affiliations political litiga- York of the New phases various presided over exemplified justice in the failure tion, resulted have have petitioner. We adverse to by the several decisions only support that these assertions find examined unsupported petitioner’s far is them, appears, for as so that, allegation thus find no basis for the suspicions. We way or in affected procured was some judgment that offensive matter fraud, or for the contention but find it un- examined, have improperly stricken. We conten- petitioner’s other necessary to discuss various tions, without merit. which are likewise will reversed and the case remanded judgment
The in to this conformity opinion. for proceedings further ordered.
So part took no in the consideration Mr. Jackson Justice this or decision of case. Rutledge, dissenting part.
Mr. Justice opinion except implies I it holds or concur as is the 1938 New is invalid and therefore as it includes not entitled to full faith and credit so far 25, 1935, October accruing instalments of after and interest them. regards
The as invalid apparently Court because, procedure, to this extent the New under it was docketed notice to the additional without for original proceeding had notice he received in 1926 divorce which resulted in the decree modified provide for the monthly payment accrual and of these instalments.
The bases this view seem to rest two assumptions. One the 1938 except as to the arrears accumulated October 25, 1935, precisely same money judgment other and therefore falls within the prohibition Pennoyer Neff, 95 U. In S. this view the absence of equivalent further notice is to the absence and the any; becomes invalid for want of due process purposes of local enforcement as well as for receiving jurisdictions.1 full faith and credit other assumption second docketing is that the of the right off petitioner’s cut to make any defenses, re- lating arising to matters after entry decree, of the 1924 the law of New York he was entitled to make (and which he did make 1935 concerning arrears then *15 accrued) any at time prior to docketing judgment. I am unable to accept either of assumptions. these
I. If clear, it were as the Court seems to hold, that peti- right tioner’s make the allowable defenses- was ex- tinguished under the New York law the docketing of judgment, the we would be confronted with necessity the determining whether that fact bring would the case within the rule and the reason of Pennoyer Neff, v. supra, duly .“. . the attested record of the of a state is en every titled to such faith and credit in within court the United States as it has usage law or in the from state which it is taken.” Adam Saenger, 62; Hanley v. Donoghue, 303 U. S. v. 1, 5; 116 U. S. Hampton M’Connel, 234; v. Duryee, 3 Wheat. Mills v. 481; Cranch 28 U. S. C. § In this case we possible are not exception concerned with the general implicit the rule presented by Williams v. situation Carolina, North divorce, although U. S. that a for decree entitled to fall States, faith may and credit in other still be valid as process a matter of due in the State where rendered. event, In that following cases that decision.2
and later be whether it is within question the to be decided would provide that, of a State to after full notice and power the resulting in judicial proceeding a decree for hearing indefinitely, monthly to be instalments paid might the form instalments should or be docketed those without' specific they amounts as accrue judgments qualification with the defendant; further notice to the but come in at time before right he have the should that the circumstances is docketed and show an instalment changed as original decree have so by the comprehended payments. him terminate the to reduce or entitle upon the put simply would be provision effect of such a rendered, decree had been defendant, against the whom prov- bringing to the court’s attention burden of changed situation. ing provision how could constitute see such a
It is difficult to jurisdictional or of notice process of due a want line de- Pennoyer contemplated by sense Neff By heretofore. this Court so held has cisions. Nor adjudicated that alimony decree it is very terms of accrue. they instalments as liable to pay defendant applicable with the terms, together its And also be, or may will instalments that the he is notified statutes, un- by execution, enforceable judgments docketed be, showing to the court before initiative he takes less plaintiff time when date, any later or the accrual new conditions have entry move or termination. change justifying requiring arisen *16 received had to the notice in Moreover, addition statutes, he applicable the original decree and the from entered order, Í936 after notice from the further received 2 90; Meyer, Mabee, Milliken S. v. McDonald U. See b; Judgments, Restatement, Comment § also U. S. 457. See § Due Process Requirement 6; Burdick, as of a Comment Service (1922) L. Rev. 422. 20 Mich. in Personam Actions finding virtue of that he then contest, by the court’s had reduction, although ground securing for no sufficient meet to financially he was unable he had contended that payments. these clearly and un- notice, such why understand
I cannot to both advance, is sufficient given equivocally full peril his to afford fully of the defendant inform rights.8 the other his On protection for constitutional compel give the wife to additional notice to hand, shift her the burden each is to to docketing of instalment on the husband. original places squarely decree which the monthly the amount of the many cases where Moreover, practically the effect be small, or instalment is will weekly payment alimony, for of because provision nullify equal will giving otherwise notice publishing cost of or 4 A perfect the instalment.3 more or the amount of exceed absconding given could be to an absent or hardly tool of defeating for the substance the award. husband notes 9 and Cf. say may publi answer wife reduce the cost is no It by allowing giving form of notice the instalments to other cation judg moving entry long periods and then for of time accrue over aggregate sum, as the wife was forced to do this case. ment payment by instalments, provision rather very purpose of sum, lump assure that the wife shall as have them in a than accrue, much they as as it is that the husband shall allowed to goes along. dependent support time She earn them promptness payments and children more of herself certainty. requirement And upon their ultimate technical than only giyen by original decree can additional for notice right depriving prompt payment, her if the wife of result requirement advantage small amount can take and the husband compel instalments to her to let them Because accumulate. frequently delay rights, often results of substantial effect so loss impossible to make be also the ultimate as well as the immediate will due; lifelong right of what and to liti collection substitute gation certain for one of means of subsistence. The facts of this case possibilities. afford abundant illustration of both *17 240 process given require
Due does not that notice of suit be or, than once when this has been done and a valid more given judgment entered, that additional notice must be execution, before or alias.5 Jurisdiction over the original having person original proceeding been obtained adequate notice, steps further proceedings are discretion, far largely except within the court’s so as by statute, including after they proceedings are controlled later True, steps may and on execution. these limitation arbitrarily.6 not be taken But does not stage require giving of notice at each successive original it forbid upon the service of summons. Nor does legislature to the defendant place upon court or the keeping in- parties responsibility other for themselves Judgment concerning progress of cause. formed than warn- statutory without further notice défault, off, steps everyday to ward it is an occurrence. ing to take taking the initiative to the burden After judgment heavily more adjudication’s effect falls even avoid discharges he assumes and defendant. Unless special for want of notice up hold execution he cannot it, are about to steps property reach his authorized execution stage Generally speaking, taken. control; and that no- plaintiff’s to the largely cotnmitted stage at that defendant given to the must tice jurisdiction can be taken to the court’s within property his accepted foreign concep- both to satisfy statutory generally prevailing and to process of due tions securing satisfaction. schemes ordinary if principles, an with these accordance In. with sum, but for a fixed were entered money ' over a instalments payment provision authorized' Press, 285; Encyclopedia S. Corp. U. v. Endicott Johnson See Stowe, 248, 105 E. 890. Taylor Mass. N. v. ex rel. Lane 144; State Brown, 2d v. 62 R. I. 6 Á. Brown See Montgomery, App. 221 Mo. 295 W. S. definite collected period, by levy upon to be failure to pay I due, instalment when fail to see what conceivable objection against judg- constitutional could be raised *18 ment or any levy by give such reason of failure to notice of the levy. intended Nor do I see how a scheme such could be additionally require vitiated were the to State min- levy, that the or being automatically instead of made only isterially instance, at the should be made plaintiff’s after, further of its own court, order of the entered either judg- or application plaintiff. motion of the Whether ments shall be and paid lump a sum or instalments in either event whether be levied execution shall issue and by one form with without procedure another, of or further state notice, policy are of within wholly matters power determine, raising constitutional question no of import. fundamentally
These principles merely are altered because, in proceedings divorce, provides the decree monthly instalments of period shall continue for need, accordance with the duty support imposed by marriage children,7 place and the birth of and take the lump payment they of a sum fixed amount.8 Nor do inapplicable fit, become because the sees as a matter State 7 alimony. The principal as to the nature of There are theories two right of the same character as the view is that “is a modern marriage.” right support of the The histor lost the dissolution of property rights of the alimony “is settlement of ical view is that a quasi-partnership distribution the assets of parties and a of Setting Changing Alimony existing.” Kelso, Social hitherto The Hinman, (1939) Contemp. 186, 194-195; Law Prob. Wilson v. 6 Law & 408, 410-412, N. Y. N. E. 236. upon merely the duty support, marriage, The incurred is not pay duty arising upon for the debtor commercial transaction of a a Barber, fixed sum interest. Barber v. C. ment a with N. 428, 8 duty E. which enforces that S. 2d 204. Nor a.is respects obligation treated in in order all as one commercial constitutionally to be valid. the defendant show that allow policy, need,, decree, ended'; has at the same duty created
or the securing he making it such relief that time a condition of in showing changed shall take the initiative situation made, levy shall do so before under instalments nothing unreasonable, they there is Certainly accrue. notice, hear-. State, harsh or when a after full arbitrary ing, obligation determines familial shall basic by judicial embody decree formulated to the ob- enforced ligation in analogy, identity, close if not exact with the obligation’s character, particularly substantive when showing change opportunity affords the husband obligation. affecting the of the substance me, assumption, it seems to fallacy Court’s if it is to the inadequate limited opportunity is that the arrives, instalment or such date period before due *19 entry may select to ask for of the the wife later date as period has held a much less extended The Court order. objections, pur- for against constitutional as adequate, making prosecution. Yakus defense criminal poses of A the fortiori, view of States, U. S. v. United adjudication previous the obligation and character by the hearing, period the notice and upon allowed full re- defense should be making further law New York for is if that law sufficient, constitutionally even garded as the order right of defense when cut off that thought to judgment is entered. is com- that the husband than
No involved more changed have conditions make unless payment, to manded arrives; due date when the nonpayment justify as to so adequately he is place, changes have taken and, if such relying or from proving precluded he that will warned judgment, preexisting the of payment to avoid upon them If or that date. showing on the makes unless he he be able subse- will is payment, defense the husband’s judgment, the collaterally or attack to vacate' quently it be fraudulent for the ordinarily would wife to since longer no back owed to a docket opinion if there were suggests. Even her, as the Court’s relating and the payment to legal dispute or factual good docketing judgment, faith in the wife had acted ignorance had acted of prior pay- in a case where she court, upon inconceivable that a agent, ment her to payment, judg- refuse vacate the showing of would to come the husband’s aid. equity ment or that would not proceeds retain its attempt Her enforce learning be fraudulent. of satisfaction would after forbids a nothing in the I Constitution know right the terms upset to limit husband’s thus State the wife the general imposes upon decree or which concerning which him duty keeping informed of matters him to himself. Ac- binds inform the law of State assumes, if it clear, were as the Court cordingly, his bring law forward forbids husband to New I entry defenses, any, if after the new judg- objection no constitutional see valid should it, of want made score ment, levy pursuant or a process.9 to due of notice essential
II.
York law has the
I
convinced
New
But
am not
right
all
the docket-
cutting off
of defense
effect
Al-
purposes
for the
of execution.
ing of
instalment
an
Sistare,
held in Sistare v.
218 U. S.
though this Court
accrued instalments of
New York law
that under
*20
New
longer
this is no
case
modified,
not be
could
1170;
Act
Dusen v. Van
Y.
Van
§
York. N.
Civ. Prac.
9
528;
Jones,
654, 163
W. 2d
also the author
Jones v.
204 Ark.
S.
See
alimony
however,
follow,
that when
It
not
in note 13.
does
ities cited
through
means,
example
exercise
other
decrees are enforced
Cf. Miller
required.
v.
may
contempt
not be
power,
notice
of
Miller,
118,
Colo.
244 Dusen, App. 1020, 258 Div. 17 N. Y. 2d 96; Eisinger S. v. Eisinger, 261 App. Div. 26 1031, N. Y. S. 2d 22. See also Karlin, Karlin v. 32, N. Y. E. 2d N.
It scarcely probable that, is although such modification may be made after accrual but before docketing judg- ment, the New courts would hold that it could not be made after the docketing. formal act of The Court points to no decision which so rules none has been cited found. or Indeed the opinion Court’s indicates that showing the husband could set aside the he had paid the instalment which it included. And Thayer Thayer, v. Div. App. 268, 270-271, N. Y. concededly leading S. is authority upon general this phase law, New York the court said with practice docketing judgments reference to the back alimony given without further notice than that as founda- original tion for the decree: is
“It is sufficient court satisfied from are proof presented and that the parties alive, to it both still remains If unpaid. the court installment improperly docketed, misled and an is difficulty having defendant will find no mistake corrected.” Caprio, Misc. 8 N. Y. S. 2d Caprio
And it stated: 205, was docketing for back is
“The good . recognized practice . . and the but, by facts, like other supported if set aside or modified.” it can be familiar made courts with the These statements indicate that circumstances practice plainly New the courts of New York justify such action sufficient objections only will defendant’s after the hear the in other cases when the show- but, is docketed as ing sufficient, judgment modify set aside will This, not mean may require. course, the facts *21 objections the identical which heard to raise he will be that docketing, since it is en- presented might he have lacking in find that he was for the court to possible tirely in them and should not diligence presenting appropriate in fact. so of that opportunity further to do view have true, quoted statements not this is But, whether or case any that practice clearly York indicate of New foreclosed, will not be defendant hardship of serious advancing from merely docketing of the having them objections by appropriate procedure his expressions In determined. the face of such authoritative local, concerning the the absence practice law and any contrary of similar au- expression from a source long- this Court not substitute its own thority, should effect, assumption opposite distance or to the especially theory constitutionality since on its own falls an question of the New statute on such assumption.10
III. If correct, this view of New York law is the New wholly process; is not void for want of due deprived any right for the is not of defense Sistare, 1, 22, quoted The declaration Sistare v. U. S. Barber, 77, 82, “every implication Barber that reasonable U. S. against power modify existence of” a must be resorted to already “in accrued the absence revoke instalments of of clear language manifesting intention to confer it” was an addressed to a finality purposes credit, of full faith and question, cf. Part different case, opinion, and, applied in this would III of this if be in direct con- legislation presumptively tradiction of the that rule constitutional. Court, the decision 1171-b of the New Under York Civil § may unconstitutional, section, Practice Act be as that also enacted entry judgment, provides application since the of the 1938 directing entry for an order for arrears in may “shall be such notice to the husband as the court direct.” may wording It that under this the New York need courts direct notice at all. entitled to make. It is not apparent, he now he could not make shown, he even full nor has substantially ground meritorious upon any defense *22 in having judgment and succeed the York courts New aside. set case, question has made his is the
Nor, as judgment York is lacking whether the New so presented full faith that it is not entitled to receive finality in jurisdictions.11 question if that in other But credit in record, the inescapably lurk view to taken law, the of the state of New York it does I have taken objection that is valid. follow the not York judgment prima valid, under New law is facie conclusively so. It affords foundation for if it is not of execution. In levy issuance and the absence of the grounds requiring aside, timely assertion it to be set conclusive. becomes it judg- has not heretofore held that such a
This Court Contrary entitled full faith and credit. ment is not to lacking it in neces- reflecting the that would be dicta belief are, my opinion, in neither conclusive nor finality sary suggestion any in the absence of that Certainly sound. in questioned has been the forum where the being afforded, there rendered, adequate opportunity conception most technical and absolute nothing but the thought deprive be to it of credit. Be- “finality” could this, apparent why rights it is not all substantial yond secured, if fully would not be the the defendant effect same to New York the suit given brought were York. it elsewhere as it has New upon present In case this would mean that the would be enforced the courts of the District of Co- objected To have New not suffi ciently final be entitled receive full faith and would credit have objection deprived petitioner’s been in contradiction of him of process, argument process his due due since founded in the view rights conclusively adjudicated. that his been have
lumbia, unless service of summons after suit enforcement the defendant show to the court’s there could or change satisfaction a circumstances other defense require sufficient New law modification under Indeed the not setting aside of award. Court does altogether possibility, foreclose this since it reserves in the District whether, upon proceedings further question claim so as rest Court, may the wife amend her then 1926; modified in and the husband decree, If that New York law. make his defenses allowed decree, I see original with reference to can done be forbidden as thing should why no reason same question I should And think judgment. the 1938 long this chapter of in still another now, determined litigation. drawn out case does not
The full credit faith and clause *23 endowed credited, must be judgment, to be require that a if in enough, opinion, finality. my It is with absolute with origin of its the law endowed judgment the is and of execu- levy issuance to sustain the finality sufficient opportunity an may law afford tion, although the same making speci- the setting modifying upon of aside or the opinion, whether showing. true, my This is in fied original the decree. judgment or on the suit distinguishing them as ground so sound There no the right defense, upon the with one suit, permit The considerations stated the other. Mr. Jus- v. concurring in Barber opinion in his Jackson tice sup- the reasons Barber, 86, sufficiently state 77, 323 U. S. paragraph.12 forth in this views set porting the prevented finality long rigid just such notions of was 12 It Gordon body. v. judicial See recognition of Court of Claims as a the Klein, States States, United 561, 117 697; United U. S. Wall. Court of the governing statute Subsequently 128, 144-145. the Wall. doubted never been it has amended, since time of Claims final from a Congress Court appeal to this authorize an of the New or the other one view Accordingly, whether judgment the 1938 New taken, I think law is in the District Col credit faith and is entitled to full in New York. effect it had the exact umbia,13 according to allowed of that State the law Since, my opinion, in the defense of showing to make proper defendant on docketing or after change situation, in whether given effect should the same adequate As no in District of Columbia. judgment proved was tendered modifying basis for proceeding, District of Columbia defendant by the Appeals I of the Court of should be think entirety. affirmed its joins
Mr. Justice Black opinion. this Justice Frankfurter, dissenting. Mr. Rutledge
My brother has discussed detail difficulties disposition involved the Court’s of this case I and shall briefly grounds state for my support of his conclusion. Klein, Claims. United supra; of the Court States v. States, Williams v. United 289 U. S. 563-564. sufficiently Even if were not final for full faith and purposes, credit it nevertheless would be within the discretion of the give grounds comity. District of Columbia to it effect on The full faith and credit clause commands States certain instances to recognize judgments States; sister prohibit it does not them doing Jacobs, from so in other' instances. See The Enforcement of Foreign (1939) Alimony Contemp. Decrees for 6 Law & Prob. generally Note, Finality Judgments 263-264. See in the Con- (1941) flict of Laws Col. L. Rev. 884-887. Upon the Court’s treatment of the North Carolina law in Barber *24 Barber, the by v. reservations made Mr. Justice per- Jackson were haps required, question not on that presented since treatment the now was not involved. Dadmun, See Dadmun v. 279 Mass. 181 N. E. where Supreme gave Judicial Court of Massachusetts full faith and credit judgment a New for arrears in which had been defendant; Nelson, entered without notice to the Divorce and Annul ed.) (2d 33.45; Barns, ment cf. Barns v. App. Cal. 2d 50 P. § 463; Defoe, 2d 197, 179 v. 116W. Va. E.S. Defoe right claim —the notice a to defeat
The opportunity safeguard a liability can a court determine —is judg- money But Clause. Process Due guaranteed of differences pod. Because peas not like a ments are of fairness liability, the demand function of source and be may well notice requirement which underlies future judgment A procedures. satisfied different decree jurisdiction to incidents of alimony, of the as one ordinary lump judgment for divorce, very unlike a a is ambulatory judgment It in effect an is sum indebtedness. obligation due. as it becomes for each instalment may be and original judgment from flows pay arrears ren- than elsewhere judgment pursued upon Barber, 582; Sistare v. How. Barber dering State. judg- suability a Sistare, purposes 1. For as 218 U. S. need be re- accrued instalments elsewhere, the ment (cid:127) original judgment anew State duced requirements for the execu- may decree, whatever be rendering State. judgment in the of that tion rendering original judg- But it said that the State here, has alimony may allow, as New York done ment judgment even as to instal- mitigation of such accrued mitigating may up such defenses set so, ments. If the decree for is sued on a sister State when rendering enforced in the State. judgment as when A well paid brought suit yet been a thereon may-have defense, While a if well founded, in another such State. recovery a second precludes anywhere, of such defense not bar availability a does suit on such a sister State. It runs counter to require- a no Process make ment Due a debtor defend claiming on that discharge suit of its liability, through payment whethér otherwise. Such entirely consonant with the full procedure faith given which “shall be in each ju- credit State to the ... Proceedings every dicial other IV, § State.” Article *25 Constitution; concurring opinion see the Barber of Barber, 77, Moreover, 87. the District 86, U. S. at v. Columbia, State, Thompson true of see as is a of v. go Thompson, as a matter of conflict of laws 226 U. S. Full required by is Faith and Credit beyond what relief from accrued instalments is If, perchance, Clause. peculiarly within the of based on considerations policy of understanding determination local and discretionary tri originating jurisdiction, sister State judges of respect of abstention to such ample power have bunals is event, In access to this Court qualifications. local such a federal issue. always open on Rutledge my therefore with brother agree I While entirety. below should be affirmed its the New York of formally the suit original judgment on the for ali- was based this turn and is the real That is record mony. If misdescription a of a crim- proceedings. of these source long so is deemed a formal irrelevance prosecution inal United intrinsically charged, is Williams v. offense as an 382, misdescription by pleader States, a 168 U. S. for accrued instalments on a of a suit the basis tight knot hardly can be too a for courts for untie. this, sort, case of are no
Pleadings, particularly with in Parke. See' longer spirit dealt of Baron to be Trials to the Heart Hand, The Reach L. Deficiencies Topics, (1921), Legal 3 Lectures on Asso the Matter (1926) City Bar of the of New York ciation of the justified by A entitled to have relief the facts he suitor is he whether has pleaded, accurately plead has described his ing appropriate pleaded has asked relief to the Co., States Memphis See United Cotton Oil facts. States, 68-69; Bag Bemis Bro. Co. U. v. United S. give 28, 34. purpose complaint U. de S. him. If it does against fair of the claim fendant notice Griffin legally sufficient. could have complaint that, suing his wife was the District of had no doubt that which New unpaid instalments Columbia *26 proceedings, the divorce had decreed part of York, as the record before us dis- Upon petitioner her favor. which do liability grounds for these arrears on not claimed flowing ought liability deny him. We not to from save assuming that has better judgment by petitioner live avoiding those he has grounds liability than al- If, satisfy he could the district ready perchance, asserted. up through failed to set valid defense court that he has misconception of what was a reasonable essence his suit, namely a suit for arrears of wife’s were casting an due, her it would unreasonable bur'den him require to move to set aside the on the grounds. appropriate al. v. RKO RADIO PICTURES, INC. BIGELOW et
et al. February 25, Argued February 7, 1946. Decided No. 444.