118 NY 549 (1890)
133 NY 540 (1892)
While divorce was still uncommon during the Gilded Age, changing social conditions and attitudes led to the growing willingness of couples to end their failing marriages, often creating financial complications and increased private litigation in the state courts.
In Van Cleaf v. Burns, the Court of Appeals considered what level of deference to accord a divorce judgment from another state, as well as a prior decision of the Court’s Second Division (formed temporarily to reduce the Court’s backlog) addressing the rights of the same parties in matrimonial litigation.
David and Mary Van Cleaf were married in New York in 1875. At the time of the marriage, the husband owned real property in Brooklyn and his wife acquired a dower interest by law. The law of dower in New York prevented the disinheritance of a surviving spouse by granting the wife a one-third interest in the deceased husband’s real property. In 1881, while living in Illinois, the husband successfully sued his wife for divorce in that state on the ground of desertion, a ground for divorce not recognized in New York. David Van Cleaf died in 1884 and the defendant, Catharine Burns, came into possession of the Brooklyn real property. The former wife, Mary Van Cleaf, brought an action against Burns to recover her dower interest in the property. The defendant prevailed at trial and the judgment in her favor was affirmed by the General Term of the Supreme Court in the Second Judicial Department.
The Second Division of the Court of Appeals reversed the judgment of the courts below and ordered a new trial. The question before the court was whether the Illinois divorce judgment nullified the wife’s right of dower in New York. Writing for the majority, Judge Irving Vann noted that the right of dower could be forfeited under the state’s divorce statute “in case of divorce dissolving the marriage contract for misconduct of the wife.” Did the wife’s desertion, as adjudged in Illinois, constitute the kind of “misconduct” that would wipe out her dower rights in New York? Judge Vann’s answer was a qualified no. He observed that “nothing except adultery” was considered sufficient misconduct “to deprive a wife of dower, even if it is the basis of a judgment of divorce lawfully rendered in another state.” But there was an ominous “unless” which seemingly left the door open to a contrary result: “unless it expressly appears that such judgment has that effect in the jurisdiction where it was rendered, and as to that we express no opinion.” Since the record before the court did not address the legal effect of “desertion” on the Illinois right of dower, the court ordered a new trial.
Chief Judge David Follett dissented but did not offer a written opinion.
At the new trial, the former wife prevailed even though it was shown that under Illinois law the effect of a divorce for desertion was to deprive the wife of dower. The General Term for the Second Department reversed the trial court. Relying on Judge Vann’s opinion, the Second Department held that since the “judgment of divorce has the effect to deprive the plaintiff of dower in the state of Illinois, the jurisdiction where the judgment was rendered, we think it should be permitted the same operation in this state.”
The Court of Appeals unanimously reversed and ruled for the plaintiff. Judge Rufus Peckham’s opinion noted that the case “has already been in this court in the second division,” where “[i]t was held, in the absence of evidence upon that question, the decree of the Illinois court dissolving the marriage for a cause other than adultery of the wife would not deprive the wife of her then existing dower-rights in lands in this state.” Judge Peckham noted that the Second Division expressly offered no opinion concerning “whether a different result would be reached in case it appeared that the Illinois statute deprived the wife of dower” for a cause other than adultery.
But instead of interpreting the Second Division’s decision as having left that question open for the main court to consider and resolve de novo, Judge Peckham wrote: “We are bound by the authority of the former decision to hold that the word ‘misconduct’ relates to the kind of misconduct only which our laws recognize as sufficient to authorize” the loss of dower, such as adultery. The Court rejected the argument that it was required to give full faith and credit to the judgment of a sister state. Rather, Judge Peckham viewed the case as having already been resolved by the Second Division in the plaintiff’s favor on the basis of state interests of public policy.
Under what circumstances an interest in land within this state shall be allowed a wife by way of dower is a question of policy, which the state alone has power to decide, and no judgment of a foreign tribunal in and of itself can in any wise affect that question. In truth, the learned counsel for the respondent substantially conceded that the case must be decided by reference to our own statute, and, if that statute did not forfeit the wife’s dower in such a case as this, no forfeiture could be founded upon the terms of the Illinois statute. Hence his very strong plea for a reopening of the question as to the meaning of our statute, notwithstanding the decision in regard thereto by the other division. Having decided that the wife forfeits her dower only by misconduct of the nature already stated, that interpretation of our statute decides this case. The general term having granted an extraterritorial effect to the Illinois statute in opposition to our own, we must for that reason reverse its judgment.
Judge Francis Bergan, commenting on this case in the 1980s, was struck by the “residual uncertainties” surrounding the court’s second opinion, including its “extraordinary deference” to the Second Division. The latter court had obviously intended to leave the effect of the Illinois judgment open for future consideration, but the main court’s decision “results in a refusal to permit normal reexamination of the problem on the second appeal.”[1]
The Second Division of the Court of Appeals which functioned between 1889 and 1892 was effective in its mission of alleviating the main court’s overcrowded docket, but Van Cleaf perhaps revealed the potential for confusion and conflicting decisions arising from the simultaneous operation of two separate high courts with coequal authority. These concerns motivated the amendments to the Judiciary Article of the Constitution in 1894 which were designed to narrow the jurisdiction and caseload of the Court of Appeals.
[1] Bergan, The History of the New York Court of Appeals, 1847-1932, Columbia Univ. Press, (1985), at 172-73.