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For purposes of the “Full Faith and Credit” clause what does it mean to “fully and fairly litigate” personal jurisdiction?

N.B. Two and a half years after I lost this appeal in the Court of Appeals, I obtained a reversal, and victory, in the Supreme Court: Well it seemed obvious to me

I’ve avoided blogging on the October 13, 2010 Court of Appeals opinion in Ware v. Ware, 390 S.C. 493, 702 S.E.2d 390 (Ct. App. 2010) because I represented the appellant, Mr. Ware, and this was a very disappointing loss.  My client and I may still seek rehearing and certiorari.

The basic fact pattern is that Mr. Ware filed and served a divorce action in Alabama and Ms. Ware then filed and served a divorce action in South Carolina.  Both actions proceeded without the other party attending the trial in which they were the defendant.  Obviously the result each party achieved in their home state trial was highly favorable to that party.  When Mr. Ware’s employer started withholding his income to comply with South Carolina’s alimony order, he retained me to seek to have the South Carolina order vacated, based on an argument that the Alabama order has priority.  The family court denied Mr. Ware’s motion so we appealed.

The appeal involved the application of the “full faith and credit” clause of the United States Constitution,[1] as interpreted by Durfee v. Duke , 375 U.S. 106, 111, 84 S.Ct. 242, 245, 11 L.Ed.2d 186 (1963).  This constitutional provision requires states to generally honor other state’s judgments.  An exception to this general principle is that judgments against non-residents do not have to be honored if there was not personal jurisdiction over the defendant from the court that issued the judgment.  The Durfee decision, however, requires a defendant’s home state to honor a foreign judgment if jurisdiction was “fully and fairly litigated and finally decided in the court which rendered the original judgment.” 

No one disputes that if the Alabama order finding personal jurisdiction over Ms. Ware is entitled to full faith and credit, the Alabama order has priority and, if it isn’t, the South Carolina order has priority.  Here, Ms. Ware filed an entry of limited appearance and challenged personal and subject matter jurisdiction in Alabama.  Alabama, in an order I would acknowledge was poorly drafted, denied her motion to dismiss because it found Mr. Ware was a resident of Alabama.  Ms. Ware filed a motion to reconsider.  Alabama set the case for trial before resolving her motion to reconsider and Ms. Ware withdrew from the case. Eventually the Alabama courts issued a final order and an order denying her motion to reconsider.  Ms. Ware did not appeal those Alabama orders.

The issue on appeal is whether the issue of personal jurisdiction over Ms. Ware was “fully and fairly litigated and finally decided” in Alabama (in which case South Carolina is required to honor the Alabama order and vacate the South Carolina order) or whether her withdrawal from the Alabama action prior to a final resolution means that jurisdiction was not “fully and fairly litigated and finally decided” in Alabama (in which case South Carolina has no duty to honor the Alabama order).

The South Carolina courts have continually ruled against Mr. Ware, finding that because Ms. Ware filed an entry of limited appearance and withdrew before the final order issued, she did not “fully and fairly litigate” jurisdiction in Alabama and thus isn’t bound by the Alabama decision.  I believe this holding is absurd for a few reasons.  First, the concern in Durfee is giving a litigant two bites at the apple: challenging jurisdiction in a foreign court and then allowing a second challenge in one’s home court.  That’s exactly what the Ware decision allows to happen.  If one could defeat the “fully and fairly litigated” concern by withdrawing mid-case after receiving an adverse ruling on a motion to dismiss–such orders always being interlocutory–one could always defeat Durfee .

Further the Ware decision ignores the only reported case dealing with this exact issue, Emig v. Massau, 140 Ohio App.3d 119, 122, 746 N.E.2d 707, 710 (Ohio App. 10 Dist. 2000).  In Emig a father entered a limited appearance to challenge personal jurisdiction in a Missouri child support modification case.  Father lost that challenge in the family court and failed to appeal that determination.  When Mother sought to enforce the Missouri order in Ohio, Father, an Ohio resident, challenged enforcement, arguing that the Missouri court lacked jurisdiction over him.  The Emig court rejected father’s argument, holding:

In the present case, it is apparent that appellant had a full opportunity to contest the issue of personal jurisdiction in the Missouri proceedings, and upon suffering an adverse determination in that respect chose not to undertake an appeal. Under these circumstances, we find that the doctrine of res judicata bars any inconsistent finding on the issue by an Ohio court.

I understand why our courts are trying to rule for Ms. Ware.  The Alabama orders denying her motion to dismiss are poorly reasoned and the Alabama court should have dismissed Husband’s case.  On the other hand, since the Alabama court didn’t dismiss the case, Husband didn’t defend the South Carolina case.  Further it’s horrible jurisprudence to allow a litigant to ignore, rather than appeal, an order merely because it’s poorly reasoned.

I mean to take nothing away from the victory of William Clifford, my opposing counsel on this appeal, for whom I have tremendous respect.  Bill did a steller job researching, briefing and arguing Ms. Ware’s appeal.  The family court and now the Court of Appeals have rejected Mr. Ware’s position, a position I find clearly correct.  Perhaps I am missing something obvious, but I would like someone I respect to tell me if I am and what I am missing.

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[1]“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may be general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U. S. Const., Art. IV, § 1.

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