Harlan F. Stone

“ Due process forbids any exercise of judicial power which, but for the constitutional infirmity, would substantially affect a defendant's rights. To the suggestion that under the presumed New York practice the power asserted by the judgment does not include the final adjudication of any of the defenses which petitioner might have had, and that notice is therefore not required, the answer must be that the judgment authorizes the immediate issuance of execution. ”

“ The full faith and credit clause does not in any case require that a judgment, to be credited, must be endowed with absolute finality. It is enough, in my opinion, if the judgment is endowed by the law of its origin with finality sufficient to sustain the issuance and levy of execution, although the same law may afford an opportunity for setting aside or modifying it upon the making of a specified showing. This is true, in my opinion, whether the suit is on the 1938 judgment or on the original decree. ”

“ It might as well be said that any judgment which does not validly cut off defenses because rendered without due process may be made the basis of suit elsewhere subject to those defenses. To the extent that New York refuses, if it does refuse, to set aside the judgment of 1938 unless there be some affirmative showing that there was a meritorious substantive defense to its entry, there is an assertion of power in the court to enter a money judgment and issue execution upon it without notice. ”

“ A fortiori, in view of the character of the obligation and the previous adjudication upon full notice and hearing, the period allowed by the New York law for making further defense should be regarded as constitutionally sufficient, even if that law is thought to cut off that right of defense when the order for judgment is entered.
No more is involved than that the husband is commanded to make payment, unless conditions have changed so as to justify nonpayment when the due date arrives ”

“ Judgment by default, without further notice than a statutory warning to take steps to ward it off, is an everyday occurrence. After judgment the burden of taking the initiative to avoid the adjudication's effect falls even more heavily upon the defendant. Unless he assumes and discharges it, he cannot hold up execution for want of special notice that authorized steps to reach his property are about to be taken. Generally speaking, the stage of execution is committed largely to the plaintiff's control ”

“ On the other hand, to compel the wife to give additional notice before docketing of each instalment is to shift to her the burden which the original decree places squarely on the husband. Moreover, in many cases where the amount of the monthly or weekly instalment is small, the effect will be practically to nullify the provision for payment of alimony, because the cost of publishing or otherwise giving notice will equal or exceed the amount of the instalment. [10] A more perfect tool hardly could be given to an absent or absconding husband for defeating the substance of the award. ”

“ Certainly there is nothing unreasonable, harsh or arbitrary when a state, after full notice and hearing, determines that the basic familial obligation shall be enforced by judicial decree formulated to embody the obligation in close analogy, if not exact identity, with the obligation's substantive character, particularly when it affords the husband opportunity for showing a change affecting the substance of the obligation. ”

“ But it is immaterial for present purposes whether or not petitioner was a domiciled resident of New York at the time, either within or temporarily without the state, or a resident of some other jurisdiction. It is plain in any case that a judgment in personam directing execution to issue against petitioner, and thus purporting to cut off all available defenses, could not be rendered on any theory of the state's power over him, without some form of notice by personal or substituted service. ”

“ Thereupon the New York court entered an order referring to a referee for determination two of the issues of fact raised by the motions, (a) the amount of unpaid installments of alimony due from petitioner to respondent, and (b) petitioner's then ability to pay them. These questions were litigated by the parties in contested hearings before the referee, whose report of January 7, 1936, found the amount then due from petitioner to respondent as arrears of alimony, and that petitioner had failed to present any credible testimony showing his inability to pay. ”

“ Even though petitioner could, if he knew of the judgment before execution is actually levied, move to set the judgment aside, that could not save the judgment from its due process infirmity, since it and the New York practice purport to authorize the levy of execution before petitioner is notified of the proceeding or the judgment. ”

“ Ch. 240 of the Laws of 1925 amended Section 1170 of the Civil Practice Act so as to provide in part: 'Where an action for divorce or separation is brought by either husband or wife, the court, except as otherwise expressly prescribed by statute, must give, either in the final judgment, or by one or more orders, made from time to time before final judgment, such directions as justice requires, between the parties, * * * where the action is brought by the wife, for the support of the plaintiff. ”

“ If the husband's defense is payment, he will be able subsequently to vacate or attack collaterally the judgment, since ordinarily it would be fraudulent for the wife to docket a judgment for back alimony no longer owed to her, as the Court's opinion suggests. ”

“ In 1935 respondent moved in the original divorce proceeding to punish petitioner for contempt for his failure to pay installments of alimony as directed by the decree of divorce, and petitioner, in conformity to New York procedure, made a cross-motion to modify the original judgment by reducing past due and future installments of alimony. ”

“ Thayer v. Thayer, 1st Dept., 145 App.Div. 268, 129 N.Y.S. 1035. [1] Petitioner, by his answer in the present suit on this judgment set up as defenses that the judgment of February 1938 was entered without notice to him, and was for that reason null and void for want of due process, and also 'because of gross fraud in its incidence and procurement, and in its making and entry, and in its monetary contents, and in the amount claimed to be due and owing under it,' and so was not entitled to any recognition in the District of Columbia. ”

“ This is a suit brought in the District Court of the District of Columbia, in which respondent sought to recover the amount of a judgment which she had secured against petitioner in 1938 in the Supreme Court of New York for arrears of alimony. The question for decision is the extent to which due process permits the New York adjudication to be made the basis for recovery in another jurisdiction. ”

“ Since, in my opinion, the law of that state allowed the defendant on proper showing to make the defense of change in situation, whether before or after the docketing of the judgment, the same effect should be given to the judgment in the District of Columbia. As no adequate basis for modifying the judgment was tendered or proved by the defendant in the District of Columbia proceeding, I think the judgment of the Court of Appeals should be affirmed in its entirety.
Mr. Justice BLACK joins in this opinion. ”

“ The very purpose of the provision for payment by instalments, rather than in a lump sum, is to assure that the wife shall have them as they accrue, as much as it is that the husband shall be allowed to earn them as time goes along. ”

“ She may be dependent for support of herself and children more upon the promptness of the payments than upon their ultimate certainty. And any technical requirement for notice additional to that given by the original decree can only result in depriving the wife of her right to prompt payment, if the husband can take advantage of the requirement and the small amount of the instalments to compel her to let them accumulate. ”

“ It is said that we must p esume that the New York practice requires that a judgment for accrued alimony which has been docketed without notice, must, quite apart from due process requirements, be set aside on the defendant's application showing to the court that he had a defense to the claim for accrued alimony. ”

“ Barber, 323 U.S. 77, 82, 65 S.Ct. 137, 139, 157 A.L.R. 163, that 'every reasonable implication must be resorted to against the existence of' a power to modify or revoke instalments of alimony already accrued 'in the absence of clear language manifesting an intention to confer it' was addressed to a different question, finality for purposes of full faith and credit, cf. ”