dissenting:
I respectfully dissent for the reasons expressed in the district court opinion as follows:
The first question before the Court involves a challenge to the Final Judgment of Legal Separation, the Defendant arguing that the Florida decree dissolving the parties’ marriage was entitled to full faith and credit in the California proceeding and that, consequently, the California *1000court was without jurisdiction to proceed with an action for legal separation of the parties as there no longer existed a marriage upon which to ground a separation or the payment of separate maintenance. However, the record reflects unequivocably that the Defendant failed to raise the Florida decree as a defense in the California separation proceeding, and for this reason Defendant’s argument must fail. The argument overlooks the fact that for the Florida decree to have been entitled to full faith and credit in the California proceeding, the Florida decree must have been raised as a defense in that cause. A party, subject to the jurisdiction of a second court, may not ignore the opportunity in the second court to raise a defense based upon a prior judgment of a sister state, and then attempt to invalidate the second court’s judgments in a third action for enforcement by resurrecting the defense based upon the first court’s judgment. Morris v. Jones, 329 U.S. 545 [67 S.Ct. 451, 91 L.Ed. 488] (1946); Treinies v. Sunshine Mining Co., 308 U.S. 66 [60 S.Ct. 44, 84 L.Ed. 85] (1939); Porter v. Wilson, 419 F.2d 254 (9th Cir. 1969); Southard v. Southard, 305 F.2d 730 (5th Cir. 1962); Helgesson v. Helgesson, 196 F.Supp. 42 (D.Mass.1961); and Lewis v. Lewis, 317 P.2d 987, 49 Cal.2d 389 (1957). See also, [Midessa] Medissa Television Co. v. Motion Pictures for Television, 290 F.2d 203 (5th Cir. 1961); RESTATEMENT OF JUDGMENTS § 42, Comment a (1942); and Ginsburg, Judgments in Search of Full Faith and Credit: The Last-In-Time Rule for Conflicting Judgments, 82 Harvard Law Review 798 (1969). As the Court in Morris v. Jones, supra, stated:
As to respondent’s contention that the Illinois decree, of which petitioner had notice, should have been given full faith and credit by the Missouri court, only one word need be said. Roche v. McDonald [275 U.S. 449, 48 S.Ct. 142, 72 L.Ed. 365] . . . makes plain that the place to raise that defense was in the Missouri proceeding .... And whatever might have been the ruling on the question, the rights of the parties could have been preserved by a resort to this Court, which is the final arbiter of questions arising under the Full Faith and Credit Clause .... In any event the Missouri judgment is res judicata to the nature and amount of petitioner’s claim as against all defenses which could have been raised.
Id. [329 U.S.] at 552 [67 S.Ct. at 456].