12.2 The Constitutional Framework

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2018 Ed.)

12.2 THE CONSTITUTIONAL FRAMEWORK

12.201 Due Process and the Full Faith and Credit Clause.

A. In General. When spouses reside in different states, a divorce suit filed in one state ("the forum state") can lead to issues of whether the judgment of the court in the forum state is entitled to recognition by the courts of sister states under the Full Faith and Credit Clause of the United States Constitution. ⁵ One prerequisite to recognition is that the judgment of the forum state must satisfy the requirements of the Due Process Clause of the Fourteenth Amendment. ⁶ The relationship of the parties to the forum state will be one important factor to examine. In many types of civil litigation, the focus is on the relationship of the defendant to the forum state— whether the out-of-state defendant has sufficient "minimum contacts" with the forum state that subjecting the defendant to a judgment in personam will

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not offend traditional due process notions of fair play and substantial justice. ⁷ In divorce suits, however, the relationship between the forum state and the plaintiff must also be examined. A valid judgment of divorce can be entered based on the plaintiff's domicile in the forum state even when the defendant has had no contact with the forum state. ⁸ A series of mid-20th century decisions by the United States Supreme Court developed the constitutional framework for resolving jurisdictional and notice issues in divorce suits.

B. Domicile as a Jurisdictional Prerequisite: Williams I and II. In Williams v. North Carolina (I), ⁹ the United States Supreme Court considered whether a Nevada divorce decree was entitled to recognition and enforcement under the Full Faith and Credit Clause. The husband, Williams, left his North Carolina wife in May 1940. The wife, Hendrix, left her North Carolina husband in 1940. Williams and Hendrix traveled to Las Vegas, Nevada, and after residing in Nevada for a short time, each filed a divorce suit in the Nevada courts. Neither of their spouses, now the defendants in the Nevada divorce cases, were served with process in Nevada, and neither entered an appearance in the suits. The North Carolina wife of Williams received a copy of the summons and complaint by delivery in North Carolina. The North Carolina husband of Hendrix received notice of the Nevada suit by publication and also by mail. The Nevada courts did not obtain personal jurisdiction over either of the divorce defendants residing in North Carolina. The Nevada court determined that Williams and Hendrix both had satisfied the Nevada residency requirement and granted divorces to each based on evidence that satisfied Nevada divorce law. Williams and Hendrix then married in Nevada. Thereafter they returned to North Carolina, where both were convicted of bigamy. At trial, the defendants offered the Nevada divorce decrees as evidence and argued that the Full Faith and Credit Clause required that North Carolina recognize their validity. The North Carolina Supreme Court declined to recognize the Nevada divorce decrees, finding that the more liberal divorce law of Nevada offended the public policy of North Carolina. The court also suggested that the Nevada divorces were collusive. ¹⁰ The defendants' criminal convictions were affirmed.

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On appeal to the United States Supreme Court, the Williamses again argued that the Full Faith and Credit Clause required that North Carolina recognize the divorce decrees of its sister state. The Court examined Nevada's exercise of jurisdiction in determining whether due process had been afforded the defendants. Historically, divorce suits required only in rem jurisdiction, and jurisdiction was not based on the contacts between the defendant and the state. Instead, it was based on the presence within the state of the marital res. The res—the marital relationship—is located in the state or states in which the spouses are domiciled. While rejecting the historical view that a divorce suit was purely a proceeding in rem, the Court nevertheless stated:

Such a suit, however, is not a mere in personam action. Domicil of the plaintiff, immaterial to jurisdiction in a personal action, is recognized . . . as essential in order to give the court jurisdiction which will entitle the divorce decree to extraterritorial effect, at least when the defendant has neither been personally served nor entered an appearance. . . . [T]he decrees in this case like other divorce decrees are more than in personam judgments. They involve the marital status of the parties. Domicil creates a relationship to the state which is adequate for numerous exercises of state power. ¹¹

The Court described the significant state interests that can be protected by allowing the domicile of a party to be an adequate nexus with the state, permitting the state to determine the status of the marital relationship:

Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders. The marriage relation creates problems of large social importance. Protection of offspring, property interests, and the enforcement of marital responsibilities are but a few of commanding problems in the field of domestic relations with which the state must deal. Thus it is plain that each state by virtue of its command over its domiciliaries and its large interest in the institution of marriage can alter within its own borders the

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marriage status of the spouse domiciled there, even though the other spouse is absent. ¹²

Assuming but not deciding that the plaintiffs were validly domiciled in Nevada, the Court determined that Nevada had an adequate jurisdictional basis to determine the marital status of the parties and to grant the divorces. Having found the exercise of jurisdiction by the Nevada courts to satisfy due process requirements related to the dissolution of the marriage, the Court then examined North Carolina's view that it need not grant full faith and credit to the Nevada divorce decrees because the divorce laws of Nevada offended the public policy of North Carolina. The Court disagreed, stating:

Art. IV, § 1 and the Act of May 26, 1790 require that "not some but full" faith and credit be given judgments of a state court. . . . Thus even though the cause of action could not be entertained in the state of the forum either because it had been barred by the local statute of limitations or contravened local policy, the judgment thereon obtained in a sister state is entitled to full faith and credit. ¹³

The Court justified imposing this limitation on a state's ability to deny full faith and credit to the judgments of a sister state based on policy differences, concluding that "[s]uch is part of the price of our federal system." ¹⁴

On remand, the North Carolina courts conducted their own examination of whether the plaintiffs in the Nevada divorce proceedings were validly domiciled in that state. The Nevada trial courts, based on evidence received during the divorce proceedings, had determined that the plaintiffs were properly domiciled there. The North Carolina courts, however, ruled that the plaintiffs were not validly domiciled in Nevada. The convictions for bigamy were reaffirmed by the North Carolina Supreme Court. ¹⁵

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In a second appeal to the United States Supreme Court, the North Carolina convictions were affirmed in Williams v. North Carolina (Williams II). ¹⁶ The divorce proceedings in Nevada were ex parte—the North Carolina spouses did not appear in them, so the extraterritorial validity of the divorce decrees depended upon the bona fide Nevada domicile of the divorce plaintiffs, an issue that the Court noted had not been raised in Williams I. The Court reasoned that because the Nevada divorce proceedings were not truly adversary proceedings, the findings of the Nevada courts concerning domicile were binding neither on the North Carolina defendant spouses nor on the State of North Carolina in its prosecutions for bigamy. The Court explained:

It is one thing to reopen an issue that has been settled after appropriate opportunity to present their...