dissenting:
Respectfully, I dissent from tlie decision in this case, not only because, in my judgment, it is contrary to la-w- and the weight of authority, hut also contrary to common sense, reason and justice.
Basically, perhaps, my dissent to the opinion, from a purely legal standpoint, is that it applies the doctrine of full faith and credit in reverse. At the time the Arkansas court acted in the ex parte divorce suit pending-in that court, having only in rem jurisdiction, there was in full force and effect in this state an in personam judgment rendered by a court of general jurisdiction for the benefit of the wife and the son of the parties.
The in personam rights of the wife and her infant son in the West Virginia judgment were beyond the reach of the Arkansas court in that in rem proceeding to which the infant son was not a party in any sense and to which the wife was a party only on the basis of constructive service.
The mere jurisdiction of the res, of the marital status, gave no jurisdiction to the Arkansas court to interfere with, to modify or to nullify the in personam rights of the wife and incidentally of her son, in the existing judgment rendered in this state by a court of general jurisdiction which had, not only jurisdiction of the entire subject matter, but also personal jurisdiction of both the husband and the wife and a consequent right, duty and jurisdiction to make proper provision for the support of the wife and the infant son of the pax-ties.
In justice to the judge of the Arkansas court, I believe it should be made clear that the order entered by him discloses that he properly and deliberately gave full faith and credit, pursuant to the constitutional mandate, to the West Virginia judgment, and that he properly recognized that he had no right, authority or jurisdiction to disturb, modify, supersede or nullify *915the West Virginia judgment. The Arkansas court adjudged that the husband “is a resident of the Eastern District of Clay County, Arkansas, and has been for more than ninety days”, and thereafter stated the following in its order:
“* * * that the minor child, Jack L. Brady, is living with the defendant in West Virginia and the West Virginia Court has ordered the plaintiff to pay $200.00 per month toward the support and maintenance of said minor child and the defendant, Virginia M. Brady.
“IT IS, THEREFORE, BY THE COURT considered, ordered, adjudged and decreed that the plaintiff be, and he is hereby, awarded a complete and absolute divorce from the defendant herein; and the plaintiff is hereby directed to pay $200.00 per month toward the support and maintenance of the minor child, Jack L. Brady, and the defendant, Virginia M. Brady; * *
I believe, therefore, that this Court, without any basis for doing so, has improperly, and perhaps even with unbecoming impropriety and lack of deference to the judge of the Arkansas court, charged that the judge of that court failed to discharge his constitutional duty to give full faith and credit to the West Virginia judgment.
Furthermore, the Court in its opinion in this case has taken a position in behalf of the husband contrary to that which he took in his petition filed in the Circuit Court of Braxton County in 1964, after the Arkansas divorce decree was entered in 1963. The husband did not go to the Arkansas court to request a modification of its decree relating to the sum awarded for support of Virginia Brady and her son. Rather, in his petition presented to the Circuit Court of Braxton County, he recited the proceedings resulting in the decree entered on February 28, 1958, in the separate maintenance suit which ordered him to pay $200 a month; he alleged that he had been granted an abso*916lute divorce in Arkansas on October 10,1963, and that, therefore, be was not required to pay Virginia Brady anything for her support and his petition concluded with a prayer “that the decree of this Court in said separate maintenance suit be modified, altered and changed in respect to the payment of $200.00 per month to Virginia Brady” by allowing nothing for the support of Virginia Brady and “only a reasonable amount for the maintenance of the son.”
If the Arkansas award of $200 is valid and if the West Virginia judgment was thereby superseded and nullified, the West Virginia court had no right, authority or jurisdiction to modify its decree upon the petition of the husband for the very good reason that it was void. In the light of his petition to the West Virginia court, invoking its jurisdiction to “modify” its judgment, it ill becomes him to assert that the West Virginia judgment has been superseded and nullified.
This Court has now told the husband, the wife, and apparently the son also, that if they want to reliti-gate matters relating to the $200 award, they must go halfway across the continent to the Arkansas court to do so. It is reasonable to assume that this is wholly contrary to the wishes and convenience of everybody concerned.
It doubtless affords little comfort to the wife to suggest to her, as the Court’s opinion apparently does, that she may assail the Arkansas divorce in this state on “jurisdictional grounds.” Perhaps the two terms have the same effect, but it has heretofore been uniformly held that such a foreign divorce may be attacked on the basis of fraud or lack of jurisdiction. Gardner v. Gardner, 144 W. Va. 630, 110 S. E. 2d 495. If she should institute such a proceeding in this state, or if she should have need to go to Arkansas to resist an effort on the husband’s part to have the Arkansas judgment modified, he would doubtless assert that he no longer has any obligation as her husband to bear the expenses she would thereby necessarily incur.
*917If a husband can transfer the situs of litigation affecting support of his wife and child from West Virginia to Arkansas, as the Court has permitted the husband to do in this case, he can, in like manner transfer such matters to a court in Alaska or Hawaii, thereby-imposing an even greater burden on his wife and child in the protection of their rights. If the Arkansas court, in granting a divorce of such doubtful validity in the face of an appropriate attack, had jurisdiction to make an award of support in the sum of $200, thereby superseding and nullifying an in personam judgment of a West Virginia court of general jurisdiction, then it would seem to follow that, with like effect, the Arkansas court could have made an award of a mere pittance, such as $5 a month for the support of the wife and son.
The majority opinion cites Chapman v. Parsons, 66 W. Va. 307, 66 S.E. 461, and two later decisions of this Court for the proposition that a decree of absolute divorce terminates the right of the wife to separate maintenance and support. At most, these cases stand for the proposition that a monetary award to a wife in a separate maintenance action is terminated by a subsequent divorce of the same parties in the same court in this state, whether alimony is awarded or denied in the divorce action. While I have no quarrel with the soundness of that legal proposition, I consider. these authorities wholly inapposite, even to the extent that they support the proposition for which they are cited. Such cases involved courts which had the unquestionable jurisdiction to award or to refuse to award alimony and they do not, even in the most remote degree, involve the full faith and credit provision of the Constitution.
I am not disposed to lengthen this opinion further by attempting a detailed discussion of legal principles involved; and my situation, at this time, does not afford me time to do so. My position, simply stated, is that a proper analysis and application of the authori*918ties cited in the majority opinion will effectively refute the holding of the Court in this case and cause the majority opinion to fall of its own weight.
We must not lose sight of the fact that the decisions of the Supreme Court of the United States construing the full faith and credit provision and other provisions of the Constitution of the United States are binding on all the states and must he followed by each state, even though in conflict with the prior decisions of the highest appellate court of the state. State ex rel. Battle v. B. D. Bailey & Sons, Inc., 150 W. Va. 37, pt. 2 syl., 146 S.E. 2d 686. In this area, therefore, we must look to the decisions of the Supreme Court of the United States rather than to deviations from or qualifications of such decisions by the courts of California or other states.
In support of my dissent, I wish to make specific reference to Estin v. Estin, 334 U.S. 541, 68 S. Ct. 1213, 92 L. Ed. 1561, 1 A.L.R. 2d 1412, followed by the annotation beginning in 1 A.L.E. 2d at page 1423; Anno. 28 A.L.E. 2d 1378; 24 Am. Jur. 2d, Divorce and Separation, Sections 991-93, pages 1128-1130.
For reasons stated in this opinion, I would affirm the judgment of the Circuit Court of Nicholas County.