Cook v. Cook/Dissent Frankfurter
Mr. Justice FRANKFURTER, dissenting.

Concededly, when a Florida court, on September 10, 1943, purported to grant a decree of divorce to the petitioner, then Mrs. Albert Mann, she secured the decree 'by deceiving the Florida Court as to the facts of her domicile' in that she 'went to Florida for the express purpose of getting a divorce' and without any 'intention to live and remain in Florida,' whence she departed immediately on securing her decree. Therefore, the Full Faith and Credit Clause, art. 4, § 1, does not require Vermont to respect this Florida decree, unless Mr. Mann has been served in Florida or had personally participated in the Florida divorce proceeding. If there were fair doubt that Mrs. Mann's husband had subjected himself to the jurisdiction of the Florida decree, the things which it imports would not have been undermined and Vermont would have to respect it.

It is the view of my Brethren that the Vermont Supreme Court held the Florida decree to be a nullity, although it 'recognized that there were no findings on those issues in the present record'-the issues being, whether petitioner's husband 'was served in Florida (or) made an appearance in the case.' If this were what the Vermont Supreme Court 'recognized' I would join my Brethren. But so to read what the Vermont Supreme Court wrote is to misread. In its own Vermont way, the Vermont Supreme Court wrote just the opposite. Referring to the second Williams case, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, the Vermont Supreme Court went on: 'It was there held that the question of bona fide domicile was open to attack, notwithstanding the full faith and credit clause when the other spouse neither had appeared nor been served with process in the state. The findings here do not show either of these criteria.' Cook v. Cook, 116 Vt. 374, 378, 76 A.2d 593, 595.

In the light of the whole record, is not the meaning of this, however obliquely expressed, that the circumstance was wanting which alone would have given the Florida court jurisdiction over Mrs. Mann's suit, namely, Mr. Mann's submission to it? A fair reading of this record implies that the Florida decree was neither consented to nor contested by Mann. In such circumstances, it would be formalism of the most arid kind if a State in a third-party proceeding may deny full faith and credit to an ex parte divorce fraudulently secured by a spouse in a sister State only if it makes formal findings that such an ex parte fraudulent decree was obtained without the jurisdictional participation of the husband.

If Mrs. Mann did not have a Florida domicile and her husband did not submit, under the Sherrer doctrine, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429, to the State's jurisdiction, Florida had no power to terminate the marriage. If there was no jurisdiction to grant a divorce, there was no divorce. The sham divorce was a nullity, no more binding on the Vermont courts than would have been a private letter to the lady by the local Florida judge. And while Vermont could, if that State chose, deny relief to Cook because of his 'unclean hands,' the Constitution of the United States has nothing to do with that defense.

It is important to remember that throughout this proceeding the petitioner here appeared personally and was represented by counsel. The findings of the Windsor County Court were based on 'a consideration of the statements of counsel, oral testimony and the exhibits in the case.' The findings are inescapable that the Florida decree was a cooked-up affair not between Mr. and Mrs. Mann but between Mrs. Mann and Cook. 'Florida was chosen as the place where the divorce was to be obtained because Florida would be the nearest and best place to secure a divorce.' All this took place two months after Mrs. Mann and Cook had supposedly been married, when he discovered she was the wife of Mann. The present proceedings, begun in December, 1949, did not come to issue until March, 1950, the findings of fact were made in May, 1950, and the case disposed of by the Supreme Court of Vermont in November 1950. The Florida decree was urged as a defense against the prayer for a declaration of annulment on two grounds, as one reads the record, and two grounds only: unclean hands and condonation-unclean hands in that Cook cooperated with Mrs. Mann in deceiving the Florida court as to the falsity of her domiciliary claim; condonation by conduct on Cook's part subsequent to, and with knowledge of, Mrs. Mann's fraudulently obtained divorce decree.

It is important to remember that the judgments of the Windsor County Court and of the Supreme Court of Vermont came two years after this Court's decisions in Sherrer v. Sherrer, supra, and Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451. These were not puss-in-the-corner adjudications. It is inconceivable that the Vermont courts did not know that the fraudulent claim of domicile by a divorcing spouse is irrelevant to the enforceability in sister States of a decree of divorce if the other spouse contests or consents to the proceeding leading to the decree. When the Supreme Court of Vermont in 1950 finds a decree of divorce to have been fraudulently obtained by a spouse and says that there are no findings that the other spouse had either appeared or been served with process, and rejects the claim that the divorce decree must be respected by reason of unclean hands or condonation, plainly part of the case is the assumption that this was not a Sherrer v. Sherrer or Coe v. Coe situation. An issue which is established by the assumptions in a litigation is as truly established as though put into words.

In view of what this record discloses-the explicit findings as to the fraudulently prearranged divorce from the husband between a wife and her putative husband, the issues that were tendered in the personally contested proceeding for annulment of marriage by the disillusioned third party, the charges of unclean hands and condonation as grounds on which the wife sought to rely on the divorce, the only issues thus tendered to the Vermont courts and their disposition two years after Sherrer v. Sherrer and Coe v. Coe-to hold that there must be a finding in explicit words that Mann did not appear in the Florida proceedings is to go back to the days antedating Baron Parke, when certain words in the law were indispensable. Not to use them was fatal. The Florida decree is not set forth in the record before us. For all we know, the decree may recite the non-appearance of Mann. And yet the Vermont Supreme Court is reversed on the unwarranted presumption that Mann appeared in the Florida suit.

The case now goes back to Vermont. It would not be surprising if, in the proceedings to follow, it will be formally established that inasmuch as Mann was neither served nor appeared in Florida the decree was a nullity, to which the Constitution of the United States does not require obedience from Vermont. I am not one of those who think that procedure is just folderol or noxious moss. Procedure-the fair, orderly and deliberative method by which claims are to be litigated-goes to the very substance of law. But to deny the meaning of what lies on the surface of a record simply because it is ineptly conveyed is to revert to archaisms and not to respect essentials. 

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