The wage earner, John J~, married Maria P~ in Ryczywol, Poland on July 11, 1940. Several
months later, he left Poland for the United States. Maria, then as now a Polish citizen,
stayed in Poland. Mr. J~ was inducted into the United States Army in 1942, and remained
in the service after the war. During 1948 he was stationed in California.
On July 16, 1948 Mr. J~ filed a complaint for divorce in a Nevada state court, alleging
that he had been a bona fide resident of Nevada for more than six weeks. In an accompanying
affidavit, Mr. J~ averred that he had attempted to locate Maria through correspondence,
as well as other unspecified means, but had been unsuccessful. He further stated that
Maria's last "address" to his knowledge was Rozgona, Poland. On the strength of this
affidavit, the Nevada court ordered publication of a summons in the Reno Evening Gazette,
finding that this was "the newspaper most likely to give notice to defendant [Maria]
of the pendency of the suit." The court also directed that copies of the summons and
complaint were to be mailed to Maria, addressed only to Rosgona [sic], Poland. Maria
has since stated that she did not receive the summons and complaint and had no knowledge
of the divorce proceedings until 1950.
A divorce decree dissolving the marriage was issued on September 14, 1948. On the
same day, Mr. J~ married Ruth H~. Shortly thereafter Mr. J~ and Ruth returned to his
military base in California.
Mr. J~ applied for retirement insurance benefits on April 4, 1978. Ruth submitted
an application for wife's benefits on January 10, 1983. On October 11, 1983 Maria
also filed for wife's benefits, alleging that her marriage to Mr. J~ was never legally
ended. You have asked for our assistance in determining the validity of the Nevada
divorce for purposes of adjudicating Maria's claim.
Pursuant to section 216(h) (1) (A) of the Social Security Act, the determination of
whether the wage earner and Maria remained married, notwithstanding the Nevada divorce
decree, is to be based on the laws of the state in which Mr. J~ was domiciled at the
time of Maria's application. You have found that the state of domicile in this case
is California. Therefore, California law governs the outcome.
Under California law, and consistent with the constitutional principle of full faith
and credit, the validity of a divorce decree is determined by the laws of the state
in which it was obtained. In Re Estate of Grimble, 42 Cal.App.3d 741, 117 Cal.Rptr. 125 (1974); Jones v. Jones, 182 Cal.App.2d 80, 5 Cal.Rptr. 803 (1960); see Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092 (1945). However, "[a] divorce decree is not entitled
to obligatory recognition and enforcement under the full faith and credit clause of
the federal Constitution unless it is rendered by a court having jurisdiction over
the Subject matter and the parties" (emphasis in original). 6 Witkin, Summary of California Law, "Husband and Wife" 71 (8th ed.). Where jurisdiction is
in doubt, a California court may reexamine the jurisdictional bases asserted by the
court of its sister state. Leff v. Leff, 25 Cal.App.3d 630, 102 Cal.Rptr. 195 (1972), citing Williams v. North Carolina, cited above. GC opinion re Nathan N. Carroll, May 12, 1978.1/ In our opinion a reexamination of the circumstances of this case
would result in a finding that the Nevada court had no jurisdiction and that, consequently,
the divorce decree is invalid.
In a divorce action, as in any judicial proceeding, due process requires a method
of notice reasonably calculated to afford the interested parties the opportunity to
appear and be heard. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339 (1940). If the means of notification used is not designed
to apprise those concerned of the pendency of an action, the court entertaining that
action does not acquire personal jurisdiction and any resulting decree lacks binding
effect. GC opinion re Harold Eidelbus, June 13, 1984, citing Mullane v. Central Hanover Bank and Trust Company, 339 U.S. 306, 70 S.Ct. 652 (1950). A decree of divorce rendered by a court devoid
of jurisdiction for want of adequate notice can be impeached collaterally even when
the record purports to show jurisdiction. Williams v. North Carolina, cited above. The notification procedures in this case did not satisfy minimal constitutional
The Reno Evening Gazette, an English language newspaper of limited circulation, was
not an appropriate vehicle for conveying notice of the divorce proceedings to Maria.
Service of process by publication has long been constitutionally suspect. Mullane v. Central Hanover Bank and Trust Company, cited above. Publication in this local paper was plainly not an effective means
of notifying the Polish-speaking defendant, Maria, who had never been to the United
States, let alone Reno, Nevada.
Nor was the deficient notification cured by the expedient of mailing a copy of the
summons and complaint to Maria, addressed only to the Polish town of Rozgona. Service
by mail is not inadequate per se, but it will suffice only when preceded by a diligent
attempt to ascertain the exact whereabouts of the defendant. Donel, Inc. v. Badalian, 87 Cal.App.3d 327, 150 Cal. Rptr. 855 (1978); accord Mullane v. Central Hanover Bank and Trust Company, cited above. In this case there was no factual showing that Mr. J~ had made a good
faith effort to locate his wife. The mere recitation in the affidavit that unspecified
attempts to locate Maria were unsuccessful is not sufficient, nor is facial compliance
with the Nevada statute concerning process. Donel, Inc. v. Badalian, cited above, citing Stern v. Judson, 163 Cal. 726, 127 P.. 38 (1912). Certainly, there is no indication that Maria tried
to conceal her place of residence or otherwise avoid service of process. Under these
circumstances, the California courts would conclude that notice was inadequate, that
Maria was not given a fair opportunity to contest the divorce, and that, therefore,
the Nevada court lacked personal jurisdiction, rendering the divorce decree invalid.2/
The Nevada decree is also vulnerable on other and independent grounds:
"It is a well established rule that jurisdiction to grant a divorce rests upon bona
fide domicile. When neither party is domiciled within the state, no divorce can validly
be granted and all proceedings, as well as the judgment, are void. Stated another
way, a decree of divorce rendered in one state may be impeached and denied recognition
in another upon the ground that neither of the parties had domicile at the divorce
forum, and this is true notwithstanding the recital in the decree from the other state
of the jurisdictional fact of domicile or residence. See: Beale, Conflict of Laws, vol. 1, 74.3, 111.1 and cases cited therein; Goodrich, Conflict of Laws, 2nd Ed. 123; Rest., Conflict of Laws, 111; 9 Cal. Jur. 815, 817."
Johnson v. Johnson, 259 Cal.App.2d 139 66 Cal. Rptr. 172, 176 (1968), quoting Crouch v. Crouch, 28 Cal.2d 243, 169 P.2d 897, 900 (1946); accord Williams v. North Carolina, cited above; Latterner v. Latterner, 51 Nev. 285, 274 P. 194 (1929) (jurisdiction to award divorce decree dependent upon
bona fide residence). In reviewing a collateral attack on jurisdiction due to lack
of domicile, a court may consider evidence apart from the record, including evidence
of extrinsic fraud. GC opinion re Nathan N. Carroll, cited above. The evidence on file in this case warrants a finding that Mr. J~ was
never actually domiciled in Nevada. ..
Recent statements by Mr. J~ indicate that he did not even satisfy the minimal residential
requirements of Nevada. Then, as now, Nevada required the plaintiff in a divorce action
to have resided in the state for at least six weeks prior to filing suit. NCL 9460;
accord Nevada Revised Statutes (NRS) 125.020. The complaint in this case alleges that
Mr. J~ had resided in Nevada for more than six weeks prior to commencement of the
action on July 16, 1948. Mr. J~ statements to SSA belie this allegation. On December
20, 1984 he stated that he did not begin his residence in Nevada until July 15, 1948,
just one day before the com- plaint was filed. It is also noteworthy that he was only
able to stay in Nevada by drawing on 90 days of accumulated military leave. Had he
come to Nevada six weeks prior to July 16, 1948, this leave would have been exhausted
by late August or the first week of September at the latest. However, the record shows
that he was in Nevada through September 14, 1948. Presented with this evidence demonstrating
non-compliance with the six-week residency requirement, the California courts would
not honor the Nevada decree. See Johnson v. Johnson, cited above.
Even if the statutory residency requirements had been met, the decree would not be
valid because jurisdiction attaches only when physical residence is combined with
a genuine intention to remain indefinitely within the state. E.g., Presson v. Presson, 38 Nev. 203, 147 P. 1081 (1915). There is no evidence, aside from the bare allegation
in the complaint, that Mr. J~ ever really considered staying in Nevada beyond the
minimum time required to process his divorce. In a statement dated April 5, 1985,
he indicated that he thought of Maryland as his state of residence until 1949. In
addition, nothing in the file indicates that Mr. J~ lingered in Nevada after the divorce
for so much as 24 hours, or that he ever returned to that state to resume residence.
We believe the California courts would refuse to uphold the Nevada decree on the basis
of the very suspect record with respect to residence and domicile.
Finally, you inquire whether Maria is estopped from con- testing the divorce because,
although she became aware of the decree in 1950, she took no action to have it set
aside. A divorce judgment void for want of jurisdiction may be vacated at any time
unless the equitable defenses of estoppel or laches apply. 24 Am. Jur.2d, "Divorce
and Separation" 486. Since there is no evidence that Maria relied upon the divorce
to her advantage (e.g., by remarrying or accepting alimony), she would not be estopped
from challenging the decree. Id. at 488.
Nor could laches be invoked to forestall an attack on the divorce. Laches consists
of failure by the plaintiff to assert her rights in a timely fashion, resulting in
some detriment or prejudice to the defendant. See, e.g., Rouse v. Underwood, 242 Cal.App.2d 316, 51 Cal. Rptr. 437 (1966). The period of delay in this case was
extreme, approximately 35 years having elapsed from the date Maria learned of the
divorce until she alleged its invalidity in connection with her application for wife's
benefits.3/ However, the delay was not prejudicial to Mr. J~. The primary action he
took in reliance upon the divorce was his attempted marriage to Ruth on the same day
the decree was handed down. Where, as here, remarriage occurred "soon after the divorce
and at a time when the other party to the decree could not have been expected to seek
relief, . . the delay does not cause sufficient injury to warrant the application
of the doctrine of laches." 24 Am. Jur.2d, "Divorce and Separation," at 492. Moreover,
laches is an equitable defense, sustainable only when appropriate under the particular
circumstances of the case at hand. An equity court reviewing the facts here would
be strongly influenced by the disabilities resulting from Maria's residence in Poland.
Her presumptive difficulty in comprehending and gaining access to the American legal
system would weigh heavily in favor of allowing her to challenge the divorce even
at this late date.
For these reasons, we think that the California courts would permit Maria to attack
the decree and that such an attack would succeed because the Nevada court lacked personal
and subject matter jurisdiction.
1/ Note, however, that a collateral attack on jurisdictional grounds is not permissible
where the defendant participated in the divorce proceedings, was accorded a full opportunity
to contest jurisdictional issues, and where a collateral attack would not be allowed
in the courts of the state in which the decree was issued. Aldabe v. Aldabe, 209 Cal.App.2d 453, 26 Cal. Rptr. 208 (1962). Collateral attack would be available
here since Maria did not appear in the divorce proceedings.
2/ Our conclusion that the court did not acquire personal jurisdiction is not based
on Maria's failure to actually receive notification. Where the plaintiff has made
a genuine effort to locate the defendant, service by mail is effective even if notice
is never received. GC opinion re. Andrea Cardinale, D-15909, December 13, 1972, citing Hubert v. Hubert, 78 Cal.App.2d 498, 178 P.2d 15 (1947).
3/ The file does contain a memorandum, dated May 29, 1950, drafted by a United States
military officer and addressed to the "Air Attache, U.S. Embassy, Warsaw, Poland,"
which suggests that Maria may have attempted to dispute the divorce soon after she
learned of the judgment.