
    Ann E. Carr, Respondent, v Barbara Carr, Individually and as Representative of the Estate of Paul B. Carr, Deceased, Appellant.
    Argued October 20, 1978;
    decided December 21, 1978
    
      POINTS OF COUNSEL
    
      Mark G. Levine for appellant.
    I. It would be unconstitutional to assert jurisdiction in rem against appellant who has had no contact with New York whatever. (Shaffer v Heitner, 433 US 186; International Shoe Co. v Washington, 326 US 310.) II. There is no statutory basis for asserting jurisdiction against appellant. (Gray-Lewis v Gray-Lewis, 5 AD2d 238; Wiener v Wiener, 19 Misc 2d 470; Atherton v Atherton, 181 US 155; Geary v Geary, 272 NY 390.)
    
      Peter E. Bloom and Daniel J. Bloom for respondent.
    I. It is constitutional to assert jurisdiction in rem against appellant in this declaratory action. (Shaffer v Heitner, 433 US 186.) II. There is a statutory basis for asserting jurisdiction against appellant. III. Viewing respondent’s position herein, from purely a practical point of view, the present action must stand.
   OPINION OF THE COURT

Cooke, J.

We hold that, in the absence of "minimum contacts”, New York courts have no jurisdiction over the nonresident second wife of a deceased husband, where the first wife seeks to obtain a declaration as to the validity of the first marriage.

Plaintiff Ann Carr, a resident of New York, alleges that she married decedent Paul Carr in Nevada on November 16, 1956. The couple lived in a number of marital abodes in various countries incidental to Paul’s tenure with the United States Foreign Service. In 1965 Ann, citing the harsh treatment she received at the hands of her husband, departed the marital residence in Honduras and returned to the United States, ultimately settling in New York. Some two years after Ann’s departure, Paul obtained an ex parte Honduran divorce on the ground of abandonment.

Defendant Barbara Carr has resided in California continuously since 1962. She claims that she and Paul Carr were joined in matrimony in Nevada on December 3, 1974. During the relevant time frame, Barbara had no contacts with New York State. When Paul died in 1975, Barbara applied for survivor benefits furnished by the Foreign Service Retirement and Disability System. Learning of this, plaintiff Ann Carr commenced this action to invalidate the Honduran divorce and to declare her the lawful surviving spouse of Paul. Of course, this controversy is between Ann and Barbara, and any adjudication of their respective rights will be effectual only if Barbara is bound by the judgment.

Special Term, in its opinion granting defendant’s motion to dismiss, found no basis for the exercise of jurisdiction over Barbara Carr. The Appellate Division reversed, but it is unclear whether that court upheld in rem jurisdiction, in personam jurisdiction, or both. The thrust of the Appellate Division opinion is that the balance of "conveniences” between New York and other possible forums tip evenly, and that New York possesses an interest in adjudicating the marital rights of its domiciliary, Ann Carr. Based upon this analysis, the Appellate Division sustained the purported exercise of jurisdiction. We now reverse that determination.

Status adjudications enjoy a rather unique place in our jurisprudence. Long ago the notion developed that a divorce proceeding is an action in rem (2 Bishop, Marriage and Divorce [4th ed], § 164), with the marital status of the parties being fictitiously deemed an intangible res (Geary v Geary, 272 NY 390, 399). While the analytical value of the in rem label has been questioned (see, e.g., Williams v North Carolina, 317 US 287, 297), status adjudications nonetheless possess a different quality than that of the typical in personam action (see, e.g., Estin v Estin, 334 US 541, 546-549). However ultimately classified, the principles of divorce jurisdiction are of ancient origin but enduring validity. There is apparently no disagreement as to the nature of these general principles.

A basic maxim in this area, not to be disputed at this late date, is that divorce jurisdiction may be exercised only when at least one of the parties to the marriage is domiciled in the State (see, e.g., Geary v Geary, supra, p 399; Senor v Senor, 272 App Div 306, 310-311, affd 297 NY 800; Matter of Petersen, 192 Misc 243, 244-245). So fundamental is the domicile requirement that it is a constitutional prerequisite to the recognition of a divorce decree under the full faith and credit clause (US Const, art IV, § 1; see, e.g., Sosna v Iowa, 419 US 393, 407; Williams v North Carolina, 325 US 226, 229; see, also, Alton v Alton, 207 F2d 667). This is not to say, of course, that in personam jurisdiction would be an insufficient predicate for a status adjudication in all circumstances (cf. Whealton v Whealton, 67 Cal 2d 656). But surely the alteration of a party’s status in the absence of both recognized forms of jurisdiction would amount to a gross injustice.

That is precisely the situation here. Defendant Carr is not a New York domiciliary, and the other party to the marriage, Paul Carr, is deceased. Nor does Ann Carr’s status as a domiciliary of this State provide any basis for asserting jurisdiction over Barbara. The fiction of the marital res, with the consequence that it provides the predicate for in rem jurisdiction, however useful and appropriate it may be during the joint lives of the husband and wife, ceases to have an vitality or legal substance after the death of either husband or wife. Thereafter, save possibly in some unusual case, the only issues to be litigated are those concerning property rights. Any determination described as relating to the marital status of the parties can no longer have any meaning with respect to the interpersonal relations of the parties to the marriage, but can only serve as an intermediate step en route to some adjudication of property rights. It is precisely for such an objective that a declaration is sought in this action as to the invalidity of the Honduran divorce obtained by Paul from Ann. No case is brought to our attention, however, in which the marital res has been recognized, following the death of one of the parties to the marriage, as sufficient to provide a jurisdictional basis for an in rem adjudication binding on third parties over whom the forum court has no in personam jurisdiction.

Plainly, the absence of any contact between defendant and New York is an obstacle to the exercise of personal jurisdiction. If defendant had even a minimal relationship with the State, there is little doubt that jurisdiction in this declaratory judgment action could be sustained (see, e.g., International Shoe Co. v Washington, 326 US 310, 316). As the record reveals, however, Barbara Carr has engaged in no activity in New York, and certainly has not "purposefully derive[d] benefit[s] from any activities relating to” the State of New York (Kulko v California Superior Ct. 436 US 84, 96). To uphold in personam jurisdiction in such a case would be to ignore the restraints, however limited they may be in this modern era, imposed by the due process clause.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the action should be dismissed.

Chief Judge Breitel and Wachtler, J.

(dissenting). We dissent and vote to affirm on the opinion of Mr. Justice James D. Hopkins at the Appellate Division in which the concededly difficult problem in this case is elaborated with a keen sense for the legal and policy reasons for the result. We indorse the analysis and it would be supererogation to substitute an elaboration for that of Mr. Justice Hopkins. We add only the following comments addressed to the majority opinion.

We do not rely, nor did the Appellate Division, on the existence of in personam jurisdiction over the second wife. Under traditional and still valid principles, when the first wife came to New York, she brought with her the "res” of the marriage (see Vanderbilt v Vanderbilt, 1 NY2d 342, 351, and cases cited, affd 354 US 416). There is, therefore, in rem jurisdiction in New York to determine the validity of the first marriage, whatever the indirect, and perhaps substantial, consequences of such an adjudication on the second marriage (see Chittenden v Chittenden, 46 Misc 2d 347, 349-350 [Macken, J.], including quoted comments of then Assemblyman Malcolm E. Wilson, concerning the need for methods of service on the nonresident second spouse; Sacks v Sacks, 47 Misc 2d 1050, 1052 [Geller, J.]). Of course, there is no jurisdiction in New York to declare the second marriage valid or invalid.

Moreover, the death of the husband should not dissolve the "res” that serves as a basis for jurisdiction in New York. True, the marital res may be a legal fiction, but neither in fiction nor in reality does the marriage relationship terminate, for all purposes, at the death of one spouse. Important legal rights accrue to a spouse, as a spouse, even after death. The intestate share statute and the right of election provide obvious examples. The majority’s analysis would presumably prevent even a woman married in New York and a life-long resident from seeking in New York a declaration, for estate purposes, that her husband’s out-of-State divorce was invalid, all on the theory that the marital res expired at the husband’s death. The result is unrealistic and unacceptable, however "consistent” it may purport to be with a mechanical logic.

Judges Jasen, Gabrielli, Jones and Fuchsberg concur with Judge Cooke; Chief Judge Breitel and Judge Wachtler dissent and vote to affirm in a memorandum.

Order reversed, without costs, and the action dismissed. Question certified answered in the negative. 
      
      . There is little doubt but that the classical concepts of divorce jurisdiction survive the recent decision in Shaffer v Heitner (433 US 186). As the Supreme Court stated "[w]e do not suggest that jurisdictional doctrines other than those discussed in text, such as the particularized rules governing adjudications of status, are inconsistent with the standard of fairness” (Shaffer v Heitner, supra, at p 208, n 30).
     
      
      . We recognize, of course, that the present case is not a traditional status suit. Typically, a status action would be one seeking to terminate or to declare void an existing marriage. In such a case, there is no doubt at the commencement of the action that a marriage exists to serve as the jurisdictional res. Here, by contrast, since plaintiff seeks a determination as to the validity of the marital res, the existence of the jurisdictional predicate is the very question to be resolved by the litigation (cf. New York Life Ins. Co. v Dunlevy, 241 US 518). It may be argued, therefore, that declaratory judgment actions such as the instant one may not be maintained absent personal jurisdiction of the defendant (see Gray-Lewis v Gray-Lewis, 5 AD2d 238, 241-242 [Valente, J., concurring]). In view of our disposition of the appeal, however, this problem need not be addressed at the present time.
     