SUMMERS VS. SUMMERS (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

The wife sued in Nevada on a 1947 New York separate maintenance judgment (entered on personal service; $45/week to the wife and $40/week child support). The husband subsequently obtained a 1950 Nevada default divorce on substituted service, the wife neither served personally nor appearing, and the Nevada court unaware of the New York judgment. The Nevada trial court entered judgment for $2,976.85 (installments accruing before the Nevada divorce) but denied installments accruing afterward. The court reversed on full faith and credit grounds. Accrued installments under a sister-state support judgment are entitled to enforcement (Sistare v. Sistare, 218 U.S. 1; Fauntleroy v. Lum, 210 U.S. 230), and on such federal questions the decisions of the U.S. Supreme Court control. Under Estin v. Estin, 334 U.S. 541, a divorce obtained on substituted service is divisible: effective to terminate the marital status but without power to adjudicate or extinguish the other spouse's property interest in a prior sister-state support judgment where that spouse was not personally served and did not appear. Although Nevada follows the rule that a separate maintenance decree does not survive a subsequent divorce (Herrick v. Herrick, 55 Nev. 59), and New York follows the contrary rule, Nevada must give full faith and credit to New York's rule; the Rodda line of authority was distinguished as involving forum-state (rather than sister-state) decrees. The same analysis applied to the child support award. The court held the trial court erred in limiting recovery to the pre-divorce period and remanded with instructions to enter judgment for the full amount of the New York decree, subject to credit for payments.

In plain language

A wife obtained a New York court order in 1947 (with the husband personally present) requiring him to pay her $45 a week in separate maintenance and $40 a week in child support. Later the husband came to Nevada and got a default divorce in 1950 using substituted service - the wife was never personally served and never appeared, and the Nevada court was not told about the New York order. The wife then sued in Nevada to enforce the New York order. The Nevada trial court gave her judgment only for the payments that came due before the Nevada divorce ($2,976.85) and refused to award anything for payments due afterward. She appealed, seeking the full amount, including installments accruing after the divorce. The Nevada Supreme Court reversed. Under the U.S. Constitution's Full Faith and Credit Clause and the Supreme Court's decision in Estin v. Estin, a divorce obtained on substituted service is 'divisible': it can end the marriage, but it cannot wipe out the wife's separate property right in the New York support order when she was never personally served and never appeared. Although Nevada's own rule is that a separate maintenance order does not survive a divorce, Nevada was required to honor New York's opposite rule that such an order does survive. The court held the trial court was wrong to cut off both the wife's support and the child support at the divorce date, and it ordered judgment for the full amount owed under the New York decree, minus credit for payments already made.