separate maintenance without divorce

The parties were married in 1937 and lived together in New York until 1942 when the husband left the wife. There was no issue of the marriage. In 1943 she brought an action against him for a separation. He entered a general appearance. The court, finding that he had abandoned her, granted her a decree of separation and awarded her $180 per month as permanent alimony. In January 1944 he went to Nevada where in 1945 he instituted an action for divorce. She was notified of the action by constructive service but entered no appearance in it. In May, 1945, the Nevada court, finding that petitioner had been a bona fide resident of Nevada since January 30, 1944, granted him an absolute divorce on the ground of three years continual separation, without cohabitation. The Nevada decree made no provision for alimony, though the Nevada court had been advised of the New York decree. Prior to that time petitioner had made payments of alimony under the New York decree. After entry of the Nevada decree he ceased paying. Thereupon respondent sued in New York for a supplementary judgment for the amount of the arrears. Petitioner appeared in the action and moved to eliminate the alimony provisions of the separation decree by reason of the Nevada decree. The Supreme Court denied the motion and granted respondent judgment for the arrears. The judgment was affirmed by the Appellate Division and then by the Court of Appeals. This case is here on certiorari to the Court of Appeals of New York.

Hiram Barber and Huldah Adeline Barber were married in the State of New York in 1840. Huldah, through her next friend George Cronkhite, a citizen of New York, applied for a divorce a mensa et thoro in the court of chancery for the fourth district of New York. The defendant appeared and resisted the application. The cause was heard on the pleadings and proofs, resulting in a decree that Hiram had been guilty of cruel and inhuman treatment and had abandoned and refused to provide for his wife. The New York court decreed that the parties be separated from bed and board forever, referred the cause to a master to ascertain alimony, overruled the defendant's exceptions to the master's report, and entered a final decree awarding Huldah $360 per year in quarterly installments for her support, with $960 due retroactively from July 1, 1844, plus costs, and future quarterly payments during her life, vested in her as separate estate. A transcript of the authenticated New York record formed the basis for the subsequent federal suit. Hiram left New York shortly after the decree without paying any alimony and without leaving assets there to satisfy it, establishing residence in Wisconsin. In April 1852 he obtained a divorce a vinculo from the Circuit Court of Dodge County, Wisconsin, without disclosing the New York proceedings. Huldah remained in New York as her domicil. Huldah, by her next friend, filed suit on the equity side of the United States District Court for the District of Wisconsin against Hiram, a Wisconsin citizen, alleging $4,242.15 due on the New York decree with interest. Hiram demurred on grounds including that the case was not within chancery jurisdiction and that relief could only be had in New York; the demurrer was overruled. He answered, admitting the New York decree and his nonpayment but asserting the Wisconsin divorce rendered Huldah a feme sole who could not sue by next friend and that any remedy lay at law. After a general replication, hearing on pleadings and proofs, the district court decreed $5,936.80 due for principal and interest to the date of the bill, ordering payment with costs.

In 1930, Margaret E. Sherrer and Edward C. Sherrer were married in New Jersey. From 1932 until April 3, 1944, they lived together in Monterey, Massachusetts. On April 3, 1944, Margaret Sherrer left Massachusetts with the two children of the marriage, ostensibly to spend a vacation in Florida. Shortly after her arrival, she informed her husband that she did not intend to return, obtained housing accommodations in Florida, placed her older child in school, and secured employment for herself. On July 6, 1944, at Margaret Sherrer's direction, a bill of complaint for divorce was filed in the Circuit Court of the Sixth Judicial Circuit of the State of Florida alleging extreme cruelty as grounds and that she was a bona fide resident of Florida. Edward Sherrer received notice by mail, retained Florida counsel who entered a general appearance and filed an answer denying the allegations including the allegation as to her Florida residence. On November 14, 1944, hearings were held in the divorce proceedings at which Edward Sherrer appeared personally to testify with respect to a stipulation relating to custody of the children, and throughout the proceedings he was represented by counsel who failed to cross-examine or introduce evidence in rebuttal. The Florida court entered a decree of divorce on November 29, 1944, after specifically finding that Margaret Sherrer was a bona fide resident of the State of Florida and that the court had jurisdiction. On December 1, 1944, Margaret Sherrer married Henry A. Phelps in Florida, and they lived together as husband and wife in Florida until February 5, 1945, when they returned to Massachusetts. In June 1945, Edward Sherrer instituted an action in the Probate Court of Berkshire County, Massachusetts, alleging that he is the lawful husband of Margaret Sherrer, that the Florida decree is invalid, and that her subsequent marriage is void, and praying that he be permitted to convey his real estate as if sole and that the court declare he was living apart from his wife for justifiable cause. The Probate Court resolved the issues of fact adversely to Margaret Sherrer's contentions, found that she was never domiciled in Florida, and granted Edward Sherrer the relief requested. The Supreme Judicial Court of Massachusetts affirmed the decree on the grounds that it was supported by the evidence and that the requirements of full faith and credit did not preclude the Massachusetts courts from reexamining the finding of domicile made by the Florida court. The Supreme Court granted certiorari in this case and in Coe v. Coe to consider the contention of petitioners that Massachusetts has failed to accord full faith and credit to decrees of divorce rendered by courts of sister States.