value" when connected to "an integrated operational whole."
1. Application of the mileage formula resulted in an assessment which, on the record in this case, went far beyond the value of appellants' rolling stock in Missouri, and violated the Due Process and Commerce Clauses. Pp. 390 U. S. 323-329.
(a) A State may impose a property tax upon its fair share of an interstate transportation enterprise, including a portion of the enterprise's intangible value. Pp. 390 U. S. 323-324.
(b) Though a State has considerable latitude in devising formulas to measure tangible property within its borders, it is not entitled to tax tangible or intangible property unconnected with the State. Pp. 390 U. S. 324-325.
(c) Appellants' evidence satisfied the burden which rests on a railroad attacking a mileage formula of showing that the formula reached assets outside the State, and Missouri has not countered such evidence here. Pp. 390 U. S. 326-327.
(d) Though this Court's decisions recognize the practical difficulties in applying a mileage formula, they forbid an unexplained discrepancy as gross as that here revealed. P. 390 U. S. 327.
(e) The record is totally barren of evidence relating to the enhanced value of property in Missouri by reason of the incorporation of such property into the entire N & W system. Pp. 390 U. S. 327-329.
2. The Missouri Supreme Court may remand the case to the appropriate tribunal to reopen the record for additional evidence supporting the assessment. P. 390 U. S. 330.
426 S.W.2d 362, vacated and remanded.
In 1964, the Norfolk & Western Railway Co. (N & W), a Virginia corporation with interstate rail operations. leased all of the property of appellant Wabash Railroad Company. The Wabash owned substantial fixed property and rolling stock, and did substantial business in Missouri, as well as in other States. Prior to the lease, N & W owned no fixed property and only a minimal amount of rolling stock in Missouri. N & W is primarily a coal-carrying railroad. Much of its equipment and all of its specialized coal-carrying equipment are generally located in the coal regions of Virginia, West Virginia, and Kentucky, and along the coal-ferrying routes from those regions to the eastern seaboard and the Great Lakes. Scarcely any of the specialized equipment ever enters Missouri. According to appellants, the Wabash property in Missouri was leased by N & W in order to diversify its business, not to provide the opportunity for an integrated through movement of traffic.
1965 assessment from the appellee Missouri Tax Commission, the N & W filed a request for an adjustment and hearing before the Commission. The hearing was held, and the Commission sustained its assessment against the taxpayer's challenge. On judicial review, the Commission's decision was affirmed without opinion by the Circuit Court of Cole County, and then by the Supreme Court of Missouri. Appellants filed an appeal in this Court, contending that the assessment, in effect, reached property not located in Missouri, and thus violated the Due Process Clause and the Commerce Clause of the United States Constitution. We noted probable jurisdiction. 389 U.S. 810 (1967).
and adjust only such proportion of the total value of all the rolling stock of such railroad company as the number of miles of such road in this state bears to the total length of the road as owned or controlled by such company."
The Commission arrived at the assessment of rolling stock by first determining the value of all rolling stock, regardless of where located, owned or leased by the N & W as of the tax day, January 1, 1965. Value was ascertained by totaling the original cost, less accrued depreciation at 5% a year up to 75% of cost, of each locomotive, car, and other piece of mobile equipment. To the total value, $513,309,877, was applied an "equalizing factor" of 47%, employed in assessing all railroad property in an attempt to bring such assessments down to the level of other property assessments in Missouri. The Commission next found that 8.2824% of all the main and branch line road (excluding secondary and side tracks) owned, leased, or controlled by the N & W was situated in Missouri. This percentage was applied to the equalized value of all N & W rolling stock, and the resulting figure was $19,981,757.
There is no suggestion in this case that the Commission failed to follow the literal command of the statute. The problem arises because of appellants' contention that, in mechanically applying the statutory formula, the Commission here arrived at an unconscionable and unconstitutional result. It is their submission that the assessment was so far out of line with the actual facts of record with respect to the value of taxable rolling stock in the State as to amount to an unconstitutional attempt to exercise state taxing power on out-of-state property.
stock, calculated on the same "cost less depreciation" basis employed by the Commission, was approximately $7,600,000, as compared with the assessed value of $19,981,000. Appellants also submitted evidence to show that the tax day inventory was not unusual. The evidence showed that, both before and in the months immediately after the Wabash lease, the equalized value of the N & W rolling stock actually in Missouri never ranged far above the $7,600,000 figure. In the preceding year, 1964, the rolling stock assessment against the Wabash was only $9,177,683, and appellants demonstrated that neither the amount of rolling stock in Missouri nor the Missouri operations of the N & W and Wabash had materially increased in the intervening period. [Footnote 4] The assessment of the fixed properties (for which no mileage formula was applied) hardly increased between 1964 and 1965. In 1964, prior to the lease, the fixed properties in Missouri were assessed at $12,092,594; in 1965, after the lease, the assessment was $12, 177,597.
"rolling stock is substantially evenly divided throughout the railroad's entire system, and the percentage of all units which are located in Missouri at any given time, or for any given period of time, will be substantially the same as the percentage of all the miles of road of the railroad located in Missouri."
It then held that the evaluation found by the Commission could be justified on the theory of "enhancement,"
"The theory underlying such method of assessment is that rolling stock regularly employed in one state has an enhanced or augmented value when it is connected to, and because of its connection with, an integrated operational whole, and may, therefore, be taxed according to its value"
"as part of the system, although the other parts be outside the State; -- in other words, the tax may be made to cover the enhanced value which comes to the property in the State through its organic relation to the system."
"Pullman Co. v. Richardson, 261 U. S. 330, 261 U. S. 338."
The court correctly noted, however, that, "even if the validity of such methods be conceded, the results, to be valid, must be free of excessiveness and discrimination." It concluded that, in the present case, the result reached by the Commission was justifiable. We disagree. In our opinion, the assessment violates the Due Process and Commerce Clauses of the Constitution.
"the tax may be made to cover the enhanced value which comes to the [tangible] property in the State through its organic relation to the [interstate] system."
Pullman Co. v. Richardson, 261 U. S. 330, 261 U. S. 338 (1923). Going concern value, of course, is an elusive concept not susceptible of exact measurement. Rowley v. Chicago & N.W. R. Co., 293 U. S. 102, 293 U. S. 109 (1934); Nashville, C. & St. L.R. Co. v. Browning, 310 U. S. 362, 310 U. S. 365-366 (1940). As a consequence, the States have been permitted considerable latitude in devising formulas to measure the value of tangible property located within their borders. Union Tank Line Co. v. Wright, 249 U. S. 275, 249 U. S. 282 (1919). Such formulas usually involve a determination of the percentage of the taxpayer's tangible assets situated in the taxing State and the application of this percentage to a figure representing the total going concern value of the enterprise. See, e.g., Rowley v. Chicago & N.W. R. Co., 293 U. S. 102 (1934); Pittsburgh, C., C. & St. L.R. Co. v. Backus, 154 U. S. 421 (1894). A number of such formulas have been sustained by the Court, even though it could not be demonstrated that the results they yielded were precise evaluations of assets located within the taxing State. See, e.g., Nashville, C. & St. L.R. Co. v. Browning, 310 U. S. 362, 310 U. S. 365-366 (1940).
Applying these principles to the facts of the case now before us, we conclude that Missouri's assessment of N & W's rolling stock cannot be sustained. This Court has, in various contexts, permitted mileage formulas as a basis for taxation. See, e.g., Pittsburgh, C., C. St. L.R. Co. v. Backus, 154 U. S. 421 (1894). A railroad challenging the result reached by the application of such a formula has a heavy burden. See Butler Brothers v. McColgan, 315 U. S. 501, 315 U. S. 507 (1942); Norfolk & Western R. Co. v. North Carolina, 297 U. S. 682, 297 U. S. 688 (1936). It is confronted by the vastness of the State's taxing power and the latitude that the exercise of that power must be given before it encounters constitutional restraints. Its task is to show that application of the mileage method in its case has resulted in such gross overreaching, beyond the values represented by the intrastate assets purported to be taxed, as to violate the Due Process and Commerce Clauses of the Constitution. Cf. Capitol Greyhound Lines v. Brice, 339 U. S. 542, 339 U. S. 547 (1950). But here the appellants have borne that burden, and the State has made no effort to offset the convincing case that they have made.
Here, the record shows that rigid application of the mileage formula led to a grossly distorted result. The rolling stock in Missouri was assessed to N & W at $19,981,757. It was practically the same property that had been assessed the preceding year at $9,177,683 to the Wabash. Appellants introduced evidence of the results of an actual count of the rolling stock in Missouri.
On the basis of this actual count, the equalized assessment would have been less than half of the value assessed by the State Commission. The Commission's mileage formula resulted in postulating that N & W's rolling stock in Missouri constituted 8.2824% of its rolling stock. But appellants showed that the rolling stock usually employed in the State comprised only about 2.71% by number of units (and only 3.16% by "cost less depreciation" value) of the total N & W fleet.
Our decisions recognize the practical difficulties involved, and do not require any close correspondence between the result of computations using the mileage formula and the value of property actually located in the State, but our cases certainly forbid an unexplained discrepancy as gross as that in this case. [Footnote 7] Such discrepancy certainly means that the impact of the state tax is not confined to intrastate property even within the broad tolerance permitted. The facts of life do not neatly lend themselves to the niceties of constitutionalism; but neither does the Constitution tolerate any result, however distorted, just because it is the product of a convenient mathematical formula which, in most situations, may produce a tolerable product.
The basic difficulty here is that the record is totally barren of any evidence relating to enhancement or to going concern or intangible value, or to any other factor which might offset the devastating effect of the demonstrated discrepancy. The Missouri Supreme Court attempted to justify the result by reference to "enhanced"
"where, in certain localities, the company is engaged in a particular kind of business requiring for sole use in such localities an extra amount of rolling stock."
Id. at 154 U. S. 431.
nonparticularized increase in intangible value. See Wallace v. Hines, 253 U. S. 66, 253 U. S. 69 (1920).
"be made a means of unlawfully taxing the privilege, or property outside the State, under the name of enhanced value or goodwill, if it is not closely confined to its true meaning. So long as it fairly may be assumed that the different parts of a line are about equal in value, a division by mileage is justifiable. But it is recognized in the cases that if, for instance, a railroad company had terminals in one State equal in value to all the rest of the line through another, the latter State could not make use of the unity of the road to equalize the value of every mile. That would be taxing property outside of the State under a pretense."
We repeat that it is not necessary that a State demonstrate that its use of the mileage formula has resulted in an exact measure of value. But when a taxpayer comes forward with strong evidence tending to prove that the mileage formula will yield a grossly distorted result in its particular case, the State is obliged to counter that evidence or to make the accommodations necessary to assure that its taxing power is confined to its constitutional limits. If it fails to do so, and if the record shows that the taxpayer has sustained the burden of proof to show that the tax is so excessive as to burden interstate commerce, the taxpayer must prevail.
and Commerce Clauses. It will be open to the Missouri Supreme Court, so far as our action today is concerned, to remand the case to the appropriate tribunal to reopen the record for additional evidence to support the assessment. We vacate the judgment of the Supreme Court of Missouri and remand the cause to it for further proceedings not inconsistent with our decision.
The tax in question applies to "all real property . . . [and] tangible personal property . . . owned, hired or leased by any railroad company . . . in this state." Intangible personal property is explicitly exempted from this tax. Mo.Rev.Stat. § 151.010 (1959).
As of January 1, 1966, the N & W purchased the Wabash rolling stock that it had previously leased, while continuing to lease Wabash fixed property. This change in the relationship between N & W and the Wabash has no effect on the issues presented to us. Our analysis would apply both before and after the purchase of the Wabash rolling stock.
The Commission deducted from the sum of these two figures $860,415, representing an "economic factor" which is allowed to all railroads in varying amounts. Exactly the same deduction had been allowed the Wabash in each of the three preceding years.
Appellants further argue that the arbitrariness of the result reached here is shown by the fact that, if the rolling stock in Missouri had been taxable to the Wabash in 1965, rather than to N & W, the application of the formula to the same rolling stock would have resulted in an assessment of little more than half of that which was actually levied ($10,103,340).
"The problem under the Commerce Clause is to determine 'what portion of an interstate organism may appropriately be attributed to each of the various states in which it functions.' Nashville, C. & St. L.R. Co. v. Browning, 310 U. S. 362, 310 U. S. 365. So far as due process is concerned, the only question is whether the tax, in practical operation, has relation to opportunities, benefits, or protection conferred or afforded by the taxing State. See Wisconsin v. J. C. Penney Co., 311 U. S. 435, 311 U. S. 444. Those requirements are satisfied if the tax is fairly apportioned to the commerce carried on within the State."
Ott v. Mississippi Valley Barge Line Co., 336 U. S. 169, 336 U. S. 174 (1949). Neither appellants nor appellees contend that these two analyses bear different implications insofar as our present case is concerned.
"The only reason for allowing a State to look beyond its borders when it taxes the property of foreign corporations is that it may get the true value of the things within it, when they are part of an organic system of wide extent, that gives them a value above what they otherwise would possess. The purpose is not . . . to open to taxation what is not within the State. Therefore no property of . . . an interstate road situated elsewhere can be taken into account unless it can be seen in some plain and fairly intelligible way that it adds to the value of the road and the rights exercised in the State."
"[I]f the ratio of the value of the property in [the State] to the value of the whole property of the company be less than that which the length of the road in [the State] bears to its entire length, . . . a tax imposed upon the property in [the State] according to the ratio of the length of its road to the length of the whole road must necessarily fall upon property out of the State."
The Delaware Railroad Tax, 18 Wall. 206, 85 U. S. 230-231 (1874).
It is established law, as the Court apparently recognizes in its opinion, that an interstate company challenging a state apportionment of the company's property taxable in the State has the heavy burden of proving by "clear and cogent evidence" that the apportionment is grossly and flagrantly excessive. See, e.g., Railway Express Agency v. Virginia, 358 U. S. 434, 358 U. S. 444, and cases cited. I agree with the Supreme Court of Missouri that appellant railroad failed to meet that burden, and would therefore affirm its judgment. See its opinion at 426 S.W.2d 362.
It is true that most of the cars used in Missouri by N & W were owned by the Wabash Railroad, and that, before transfer to N & W, they had been assessed at $9,177,683, as against the assessment here of $19,981,757.
"a mere increase in the assessment does not prove that the last assessment is wrong. Something more is necessary before it can be adjudged that the assessment is illegal and excessive. . . ."
"that application of the mileage method in its case has resulted in such gross overreaching, beyond the values represented by the intrastate assets purported to be taxed, as to violate the Due Process and Commerce Clauses of the Constitution."
I do not believe that appellants have made such a showing here. The fatal flaw with the appellants' case is that they have not proved that the tax is excessive when possible enhancement of value due to the merger is considered. The Court's opinion admits as much when it says that "the record is totally barren of any evidence relating to enhancement or to going concern or intangible value, or to any other factor. . . ." Where I differ with the Court is that I believe the burden of proof is on the railroad to show that the tax is excessive under all considerations, rather than on the Commission to show sufficient enhancement of value to justify the tax.
"Unless a palpably disproportionate result comes from an apportionment, a result which makes it patent that the tax is levied upon interstate commerce, rather than upon an intrastate privilege, this Court has not been willing to nullify honest state efforts to make apportionments."
329 U.S. at 329 U. S. 422-423. And the "burden is on the taxpayer to make oppression manifest by clear and cogent evidence." Norfolk Western R. Co. v. North Carolina, 297 U. S. 682, 297 U. S. 688. Since appellants here did not prove that the enhanced value * of the rolling stock was less than the tax assessment, or that the State was imposing on N & W taxes that were exorbitant on the full value of all its property, cf. Capitol Greyhound Lines v. Brice, 339 U. S. 542, I would affirm the decision of the Missouri Supreme Court.
* This is a familiar principle of valuation in such tax cases. See Fargo v. Hart, 193 U. S. 490, 193 U. S. 499; Galveston, H. & S.A. R. Co. v. Texas, 210 U. S. 217, 210 U. S. 225; United States Express Co. v. Minnesota, 223 U. S. 335, 223 U. S. 347; Union Tank Line Co. v. Wright, 249 U. S. 275, 249 U. S. 282.


the term “undergraduate foreign language and area or international studies center” means an administrative unit of an institution of higher education, including but not limited to 4-year colleges, that contributes significantly to the national interest through the education and training of students who matriculate into advanced language and area studies programs, professional school programs, or incorporates substantial international and foreign language content into baccalaureate degree programs, engages in research, curriculum development and community outreach activities designed to broaden international and foreign language knowledge, employs faculty with strong language, area, and international studies credentials, maintains library holdings, including basic reference works, journals, and works in translation, and makes training available predominantly to undergraduate students.
All references to individuals or organizations, unless the context otherwise requires, mean individuals who are citizens or permanent residents of the United States or organizations which are organized or incorporated in the United States.
A prior section 1132, Pub. L. 89–329, title VI, § 622, as added Pub. L. 96–374, title VI, § 601(a), Oct. 3, 1980, 94 Stat. 1470; amended Pub. L. 99–498, title VI, § 614, Oct. 17, 1986, 100 Stat. 1520, defined terms used in this subchapter, prior to the general revision of this subchapter by Pub. L. 102–325.
Another prior section 1132, Pub. L. 89–329, title VI, § 622, Nov. 8, 1965, 79 Stat. 1266, related to stipends for persons attending faculty development program institutes, prior to the general revision of this subchapter by Pub. L. 96–374.
2009—Subsec. (a). Pub. L. 111–39 made technical correction to directory language of Pub. L. 110–315, § 621. See 2008 Amendment notes below.
2008—Subsec. (a)(2). Pub. L. 110–315, § 621(2), (3), as amended by Pub. L. 111–39, redesignated par. (5) as (2) and substituted “comprehensive foreign language and area or international studies center” for “comprehensive language and area center”. Former par. (2) redesignated (7).
Subsec. (a)(3). Pub. L. 110–315, § 621(2), (4), as amended by Pub. L. 111–39, redesignated par. (9) as (3) and substituted semicolon for period at end. Former par. (3) redesignated (4).
Subsec. (a)(4). Pub. L. 110–315, § 621(2), as amended by Pub. L. 111–39, redesignated par. (3) as (4). Former par. (4) redesignated (8).
Subsec. (a)(5). Pub. L. 110–315, § 621(5), as amended by Pub. L. 111–39, added par. (5).
Pub. L. 110–315, § 621(2), as amended by Pub. L. 111–39, redesignated par. (5) as (2).
Subsec. (a)(6). Pub. L. 110–315, § 621(2), (6), as amended by Pub. L. 111–39, redesignated par. (8) as (6) and struck out “and” after semicolon. Former par. (6) redesignated (10).
Subsec. (a)(7). Pub. L. 110–315, § 621(1), (2), as amended by Pub. L. 111–39, redesignated par. (2) as (7) and struck out former par. (7) which read as follows: “the term ‘critical languages’ means each of the languages contained in the list of critical languages designated by the Secretary pursuant to section 212(d) of the Education for Economic Security Act (50 Fed. Reg. 149, 31413), except that, in the implementation of this definition, the Secretary may set priorities according to the purposes of this subchapter;”.
Subsec. (a)(8). Pub. L. 110–315, § 621(2), as amended by Pub. L. 111–39, redesignated par. (4) as (8). Former par. (8) redesignated (6).
Subsec. (a)(9). Pub. L. 110–315, § 621(7), as amended by Pub. L. 111–39, added par. (9).
Pub. L. 110–315, § 621(2), as amended by Pub. L. 111–39, redesignated par. (9) as (3).
Subsec. (a)(10). Pub. L. 110–315, § 621(2), (8), as amended by Pub. L. 111–39, redesignated par. (6) as (10) and substituted “undergraduate foreign language and area or international studies center” for “undergraduate language and area center” and a period for the semicolon at end.
1998—Subsec. (a)(8). Pub. L. 105–244, § 102(b)(8), substituted “section 1001” for “section 1141(a)” in two places and “of section 1001” for “of 1141(a)”.
Subsec. (a)(9). Pub. L. 105–244, § 604(a), added par. (9).


In the last 20+ years, Mr. Dickson has managed and participated in an eclectic array of legal matters, primarily helping entrepreneurs with their complex legal needs. Mr. Dickson has had the unique experience of going from private practice into business and serving in a variety of executive functions and then he returned to private practice years later. This combination of experience gives him an uncommon perspective on many matters.
Mr. Dickson supports and serves on many boards in his community including Mission Generation, Inc., Associated Credit Union of Texas, Mainland Communities Crime Stoppers, Inc., TCISD Foundation for the Future, Inc. and College of the Mainland Foundation, Inc.
Mr. Dickson resides in his hometown with his wife from the same town and has two grown children. In his spare time he strives to improve his musicianship hoping to one day be a “rock star” and also enjoys boating on Galveston Bay.
Meet Charles E. Lobb, Jr.
Mr. Lobb is a founding member of Murray | Lobb PLLC. Since 1985, Mr. Lobb has been actively involved in litigation, concentrating his skills in construction and collections. Mr. Lobb is well-versed in banking and UCC matters. Mr. Lobb also takes great pride in his risk avoidance and dispute resolution skills prior to suits being filed.
Mr. Lobb is a member of the Houston Bar Association, the Litigation Section and Construction Section of the State Bar. He is the author of several seminar materials on collections and M&M Liens.
A lover of the outdoors, Mr. Lobb is and an avid fisherman, hunter, and scuba diver and has completed 13 marathons. Mr. Lobb is active in his church and supports the CCA, the Quality Deer Management Association and other outdoor environmental associations. Mr. Lobb enjoys traveling and reading in his spare time.
Mr. Murray has spent over 40 years representing lenders, sellers and buyers in real estate related matters in Harris and surrounding counties. He has served on the Board of Directors for several community banks in the Houston area. He has also served on the Board of Directors of several private schools and civic organizations in the Clear Lake community. He is currently participating in the Meals on Wheels program in the Clear Lake area.
Mr. Murray graduated from the University of Texas with undergraduate and law degrees. He continues to bleed burnt orange and attends many UT athletic events. He served for several years as an Associate Judge in Friendswood, Texas.
Mr. Murray was born and raised in Houston and has lived in the Houston area his entire lifetime. He has two children, two stepchildren and seven grandchildren and another on the way. He enjoys traveling and playing golf.
Since its humble beginning in Wyoming in 1977, the limited liability company (“LLC”) type of entity formation has gained rapid acceptance as a way to avoid personal liability and still maintain administrative flexibility. In addition, many lenders now insist that borrowers create a separate single-purpose entity for each project. Thus, most businesses consist of multiple affiliated companies that are each supposed to be treated discretely under the law. However, since non-corporate entities such as partnerships and LLCs are not required to hold regular meetings or even appoint officers, the owners of those entities tend to overlook other company formalities as well. This lackadaisical attitude may inadvertently create a situation where creditors come to rely on assets of affiliates, not just the entity with which they have a contract. In a bankruptcy proceeding, the creditors may go so far as to ask the court to substantively consolidate the affiliated companies.
Entangled Finances – If affiliated companies co-mingle their funds or one entity pays the bills for another entity without appropriate inter-company transfer records, it becomes increasingly difficult to distinguish the assets and liabilities of each company. Moreover, many affiliated companies produce only consolidated financial statements that imply that additional resources are available to satisfy an entity’s debts. If the entities share bookkeeping personnel, then mistakes become even more likely.
Reliance on Credit of Affiliates – If affiliated companies pledge any of their assets to secure loans to another entity or guarantee such loans, creditors may be entitled to rely on the credit of all of the entities. Creditors often request financial statements from such affiliates and require joint and several liability among the affiliates. Creditors may press hard for consolidation if some entities are asset-rich while others have major liabilities.
No Separate Stationary and Signatories – Often a group of companies will have one overarching trade name and will not clearly indicate the particular affiliate that is acting with respect to a transaction. Similarly, sometimes multiple entities will be executing the same document. If the same person signs the documents for several different entities, it is very easy to make a scrivener’s error and confuse the entities. Likewise, with modern computer technology, duplicated and revised documents with global changes to names, may not reflect the actual intent of the parties in every cases. These similar, yet different, documents can lead to unintended consequences and may require extra time and expense to audit and correct errors.
Undercapitalization – If a company does not have sufficient assets to pay for its liabilities in the ordinary course of business and is dependent on an affiliate for funding, then creditors may seek recovery against the finding entity too.
If a business is structured with several affiliated companies, the owners must still be diligent about ensuring that each entity is capable of standing alone both financially and contractually. Owners should also make clear to creditors that only that particular company may be relied on for payment. If not, all of the effort put into creating the separate companies may be disregarded in favor of producing more equitable results for creditors of affiliated companies.
On June 20, 2014 in the case of Ritchie v. Rupe, the Texas Supreme Court declined to recognize a common-law cause of action for shareholder oppression. Much of this article is quoted from the actual opinion.
Denial of Access to Corporate Books and Records. A common complaint of those alleging shareholder oppression is the denial of access of the corporation’s books and records. The Court held that Texas Business Organizations Code, Chapter 21 expressly protects a corporate shareholder’s right to examine corporate records. See Tex. Bus. Orgs. Code §§ 21.218 (examination of records), 21.219 (annual and interim statements of corporation), 21.220 (penalty for failure to prepare voting list), 21.222 (penalty for refusal to permit examination), 21.354 (inspection of voting list) and 21.372 (shareholder meeting list).
Withholding or Refusing to Declare Dividends. A second complaint of those alleging shareholder oppression relates to the corporation’s declaration of dividends, including the failure to declare dividends, the failure to declare higher dividends, and the withholding of dividend payments after a dividend has been declared. With regard to the latter, shareholders already have a right to receive payment of a declared dividend in accordance with the terms of the shares and the corporation’s certificate of formation, and they can enforce that right as a debt against the corporation. When a dividend is declared, it becomes a debt owing by the corporation to the stockholders. With regard to the failure to declare dividends or the failure to declare higher dividends, those decisions fall within the discretion of a corporation’s directors, and those decisions must be made in compliance with the formal fiduciary duties that they owe to the corporation, and thus to the shareholders collectively. Shareholders can sue the directors for breach of those duties on behalf of the corporation through a derivative action. In sum, a remedy exists for dividend decisions made in violation of a director’s duties to the corporation and its shareholders collectively, but no remedy exists for decisions that comply with those duties, even if they result in incidental harm to a minority shareholder’s individual interests.
Termination of Employment. A third common complaint of those alleging shareholder oppression relates to the termination of the minority shareholder’s employment with the corporation. Texas is steadfastly an at-will employment state. The general rule has been absent a specific agreement to the contrary, employment may be terminated by the employer, or the employee at will, for good cause, bad cause, or no cause at all. There may be situations in which, despite the absence of an employment agreement, termination of a key employee is improper, for no legitimate business purpose, intended to benefit the directors or individual shareholders at the expense of the minority shareholder, and harmful to the corporation. Such a decision could violate the director’s fiduciary duties to exercise their uncorrupted business judgment for the sole benefit of the corporation and to refrain from usurping corporate opportunities for personal gain. In such a case, a shareholder may enforce these duties through a derivative action. Such action could also be potentially “oppressive” under Tex. Bus. Orgs. Code §11.404 and thus justify the appointment of a rehabilitative receiver under Tex. Bus. Orgs. Code §11.404 (a)(1)(c).
Misapplication of Corporate Funds and Diversion of Corporate Opportunities. A fourth complaint of those alleging shareholder oppression involves the misapplication of corporate funds and diversion of corporate opportunities. The duty of loyalty that officers and directors owe to the corporation specifically prohibit them from misapplying corporate assets for their own personal gain or wrongfully diverting corporate opportunities to themselves. These types of actions may be redressed through a derivative action, or through direct action brought by the corporation, for breach of fiduciary duty.
Manipulation of Stock Values. The final complaint of those alleging shareholder oppression involves the directors’ manipulation of the value of the corporation’s stock. As a general rule, claims on such conduct belong to the corporation, rather than the individual shareholder. The individual shareholders have no separate and independent right of action for injuries suffered by the corporation which merely result in the depreciation of the value of their stock.
Importantly, the Court also recognized that the business judgment rule is applicable to decisions made by office and directors in actions under the Tex. Bus. Orgs. Code §11.404 (a)(1)(c). The Court held that “a corporation’s directors or managers engage in “oppressive” actions under §11.404 when they abuse their authority over the corporation with intent to harm the interests of one or more of the shareholders, in a manner that does not comport with the honest exercise of their business judgment, and by so doing so create a serious risk of harm to the corporation”.
The Court further ruled that the statue (Tex. Bus. Orgs. Code §11.404) does not authorize a buy-out remedy of a minority shareholders shares, even if such actions are deemed oppressive under the statute.


An action that is taken directly against the defendant’s property.
Power which a court has over the defendant personally in contrast to the court’s power over the defendant’s interest in property.
Proceedings which are not strictly and purely in rem, but are brought against the defendant personally, though the real object is to deal with particular property or subject property to the discharge of claims asserted.
When the court has jurisdiction over both parties in a divorce proceeding.
Divorce proceeding in which only one spouse participates or one in which the other spouse does not appear. The validity of such divorce depends upon the nature of the notice given to the absent spouse.
The respect which sovereign nations render to the legal proceedings and judgments of other sovereign nations.
A divorce action seeks to terminate the marital status of the parties. The marital status is the “res” or thing which “exists,” and serves as a basis of jurisdiction in the state of the domicile of either party. As such, a state in which either spouse is domiciled has jurisdiction through its courts to terminate the marriage by granting a divorce decree.
All petitions for divorce are handled by state courts. A state has jurisdiction to grant a divorce where at least one spouse is domiciled in that state, and a minimum residency requirement is met. Statutes in nearly all states impose, as a condition upon the right to sue for divorce, requirements that either plaintiff or one of the parties has been a resident (domicile) of the state for a specified period, ranging from six weeks to two years.
Such requirements have been upheld by the U.S. Supreme Court as being constitutional. Specifically, this issue was discussed in Sosna v. Iowa, 419 U.S. 393 (1975). In Sosna, Iowa imposed a one year residency requirement before obtaining a divorce. The wife challenged the residency requirement, claiming that her intent to stay in the state should be enough. The court held that a state may validly impose a reasonable residency requirement in divorce actions because a state has a legitimate interest in not becoming a divorce mill.
In New York, pursuant to its Domestic Relations Law, the residency requirement is written in terms of “continuous residency”, because the state wants to ensure that a person filing is not a part-time resident. See N.Y. Dom. Rel. § 230. In defining "residency," most states use the term “domicile,” rather than “resident,” because a person can only have one domicile, but can have more than one residence. In New York, if a couple was married in New York, the statute requires the one year residency to be continuous. If the couple was married out of state, however, they must live in New York for two years in order to sue for divorce in New York.
A period of residence is jurisdictional—it is a necessary element needed for subject matter jurisdiction in a divorce action. Lack of subject matter jurisdiction may not be waived. Yet, it may be asserted at any stage of the proceeding and it may be the basis for collateral attack of the decree. See, e.g., Hartman v. Hartman, 89 Ill. App. 3d 969 (1980).
EXAMPLE: Susan and Robert are domiciled in a state (State A) where mental cruelty is not a ground for divorce. Susan moves to another state (State B) where she establishes residence and sues for divorce from Robert on the ground of mental cruelty. Mental cruelty is a ground for divorce in State B. Susan may be granted the divorce since she is a bona fide resident of State B and has grounds for divorce. It is immaterial where the cause of action arose. See Rest. 2d, Conflict of Laws, § 285.
A spouse who has had an opportunity to contest the jurisdiction of the court when suit for divorce is filed and does not do so, may not later collaterally attack the jurisdiction of the first court.
In Sherrer v. Sherrer, 334 U.S 343 (1948), the wife, domiciled in Massachusetts with her husband, went to Florida and sued for divorce. The Florida court granted her a divorce after finding that she was a resident. The husband appeared at the proceeding. The question of whether Florida was the wife’s domicile was not litigated in this action; the decree did state she was domiciled in Florida. Subsequently, her “ex-husband” sued her in Massachusetts, claiming the Florida divorce was invalid because the wife was not a Florida resident at the time of divorce.
The Court held that Full Faith and Credit Clause of the United States Constitution bars one who personally appeared at a divorce proceeding and was accorded the full opportunity to contest the jurisdictional issues in the original action from collaterally attacking the decree on jurisdictional grounds in the courts of a sister state. The defendant had consented to personal jurisdiction by his appearance in a Florida court. Furthermore, he had an opportunity to contest the issue of the Florida court’s jurisdiction to hear the case at that time; however, he neglected to do so.
EXAMPLE: Edward and Francine are domiciled in Oregon. Francine goes to Washington, and after the requisite period needed to establish residence, files for divorce. Edward enters a general appearance and contests the divorce. Edward has an opportunity to raise the question of Francine’s domicile, but does not do so. A divorce is entered in Francine’s favor. Later in Oregon, Edward serves Francine and attacks the decree on the ground that Francine was not domiciled in Washington at the time of the divorce. The Oregon court dismisses Edward’s petition. When he entered a general appearance in Washington, he should have contested Francine’s domicile at that time. As such, that issue became res judicata when the decree was issued. Under the Full Faith and Credit Clause, a state must recognize the decree of another state where all the issues of the case are contested and decided or where there was full opportunity to do so. See, e.g., Coe v. Coe, 334 U.S. 378 (1948).
In Sherrer, full faith and credit turned on the doctrine of res judicata prevailing in the divorcing state (i.e. Florida). Specifically, if a divorce decree is immune to attack in that state on the ground that both spouses were personally before the court, then under Sherrer, it will be immune to attack in other states. In other words, one is only entitled to “one bite at the apple;” therefore, all issues should be raised during the original proceeding.
EXAMPLE: Tony and Carmella have been having marital problems for a while. One day Carmella decides to leave Tony and packs up her belongings and moves to Texas. Once she establishes residence, Carmella files for divorce. Although Tony received notice of the impending divorce, he does not appear in the proceeding. Instead, he files for divorce in New Jersey, where they lived together as a couple. Here, since Tony never appeared in the Texas proceeding, he might be able to succeed in his lawsuit against his wife.
Many parties can easily go to another state to obtain a no-fault divorce if the state has a short-term residency requirement. For example, Nevada only requires a six-week period to meet its residency requirement. Connecticut and New Jersey require a one-year period to establish residency.
EXAMPLE: A husband wanted to avoid the drawn out process of getting a divorce in New York, where the couple lived. As an alternative, the husband went to Las Vegas (making sure to bring along his golf clubs) and stayed for six weeks—the period needed to establish residency. While there, the husband got an ex parte divorce. His wife decided to collaterally attack the divorce in New York and served him in Las Vegas. The court found that the husband’s six week residency was a sham. Of course, it did not help that he had brought along his golf clubs.
In an ex parte divorce, a court has jurisdiction over only one party. The doctrine of divisible divorce allows a party to obtain an in rem ex parte divorce to terminate the marital relationship, while retaining the right to later make orders of for support, custody and property. These aspects of divorce may be litigated at a later date because adjudicating these issues require personal jurisdiction over the person.
In Newport v. Newport, 219 Va. 48 (1978), the defendant contended that the ex parte divorce he obtained in Nevada precluded his wife (the plaintiff) from obtaining an alimony award in Virginia. The Nevada decree was silent as to property and support. The court held that an ex parte decree of divorce in one state does not necessarily preclude an assertion of property and support rights in another state. Personal jurisdiction was required to litigate property and support rights.
The U.S. Supreme Court’s current view regarding in rem jurisdiction is: “in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising jurisdiction over the interests of persons in a thing.” See Shaffer v. Heater, 433 U.S. 186, 207 (1977). This standard is commonly known as the amount of “minimum contacts” a person has with the forum state, as required under the Due Process Clause. This area of the law is quite extensively studied in a typical law school civil procedures course. “Minimum contacts” in a nutshell deals with someone having enough connection with a jurisdiction such that he or she is not surprised to be sued there.
In Kulko v. Superior Court, 436 U.S. 84 (1978), the U.S. Supreme Court denied California jurisdiction in a child support action when the father (a New York resident) allowed his daughter to visit her mother in California. The mere fact that the child lived in California was insufficient to extend personal jurisdiction over her father because the father lacked the requisite minimum contacts with the state. Conversely, someone’s transient presence in the forum state at the time of personal service is sufficient to exercise personal jurisdiction over the party. See, e.g., Burnham v. Superior Court of California, 495 U.S. 604 (1990).
EXAMPLE: Mac and Jenna were divorced and had an agreement giving custody and support to Jenna. Later they modified the agreement to transfer custody, but not support, to Mac. Their child Timmy went to New York to live with his father. The defendant advanced a defense of lack of minimum contacts with the state. The court disagreed because, by modifying the agreement, (which put the child in New York); the defendant subjected himself to the court’s jurisdiction when he agreed to modify the agreement in a New York court.
States recognize ex parte decrees from another state under the Full Faith and Credit Clause; however, no state recognizes ex parte decrees from a foreign country. Recognition of bilateral divorces that were granted in a foreign country is governed by notions of “comity” rather than the Full Faith and Credit Clause. See, e.g., Perrin v. Perrin, 408 F.2d 107 (3rd Cir. 1969).
In Perrin, the wife attacked the validity of a Mexican divorce, contending that neither she nor her husband was domiciled in Mexico at the time of the divorce. During the preceding the wife appeared personally (representing to the Mexican court that she resided in Mexico) and the husband appeared by an attorney. Since the wife had procured the decree she could not now collaterally attack the validity of the Mexican divorce.
Mexican mail-order divorces: These are not recognized in the United States as ending the marital relationship since they exhibit a complete absence of any of the usual bases for divorce jurisdiction. See, e.g., Cammarota v. Secretary of Health, Education and Welfare, 329 F.Supp. 1087 (N.D. N.Y. 1971).
Ex parte divorces: These are divorces based solely on the plaintiff spouse’s physical presence in the divorcing nation, without his ever having become domiciled in that nation. The defendant spouse neither participated in the divorce proceeding, did not make an appearance in the proceeding, nor was personally subject to the jurisdiction of the divorcing court. Divorces of this kind are also generally not recognized by United States courts but may be immune from attack by virtue of the estoppel doctrine. See, e.g., Montemurro v. Immigration and Naturalization Service, 409 F.2d 832 (9th Cir. 1969).
Domicile in Mexico: One or both spouses actually live in Mexico for a short period of time. If the time period is long enough to obtain a Mexican domicile, the divorce will be held valid in the United States.
Where the foreign nation divorce was not obtained out of a desire to evade the law of the parties’ home state, and is valid by the law of the country in which it was obtained, it certainly should be recognized in the United States.
Generally, a court’s judgment given without jurisdiction over the subject matter of the action is void and open to collateral attack, either by the parties to the original suit or by others whose interests may have been adversely affected. This rule goes beyond divorce decrees to apply to other kinds of decrees and judgments. The policy underlying this rule is that which demands finality in litigation after a person has had a chance to present his case.
The application of res judicata depends upon the conditions under which the divorce was granted and is really a function of the divorce decree itself. Estoppel is an equity principle dependent upon events which may have occurred after the divorce was granted or apart from the divorce action. It is not a function of the decree but a personal disability of the party attacking the decree. It is not a rule of jurisdiction. Therefore its application is not governed by the Full Faith and Credit Clause of the United States Constitution.
One who procures a void divorce or who uses a void divorce decree to his or her advantage by remarrying, is estopped from attacking that decree at a later time. A party will also be estopped from later attacking a divorce decree if the attack is inconsistent with the position taken at the time of the divorce, or the party upholding the divorce has relied upon the decree.
EXAMPLE: Bill and Priscilla live in Connecticut. Bill becomes totally and permanently disabled. Priscilla procures a “paper Mexican divorce” through a Mexican court. She makes no appearance in Mexico and no service of process is made on Bill. Priscilla then marries Douglas. Upon Bill’s death, Priscilla claims part of the estate as Bill’s widow. The Mexican divorce is void; Bill and Priscilla were still married at Bill’s death. As such, Priscilla’s marriage to Douglas is considered bigamous. Yet, since Priscilla procured the Mexican divorce in order to remarry, she is now estopped to later claim that the divorce was valid for one purpose (remarriage) but invalid for another. Thus, the court denied Priscilla’s claim for any proceeds from Bill’s estate. See, e.g., Rediker v. Rediker, 221 P.2d 1 (Cal. 1950).


Thomas C. Lynch and Evelle J. Younger, Attorneys General, Edward M. Belasco, Deputy Attorney General, King & King and Kenneth Sperry for Defendants and Appellants.
Hennigan, Butterwick & Clepper, J. David Hennigan, Edward L. Lascher and Richard E. Rader for Plaintiff and Respondent.
On April 14, 1967, defendant Russell Waite, a retired California Superior Court judge, in an action for an ex parte divorce in Nevada obtained a judgment awarding him all benefits accruing under the Judges' Retirement Law (Gov. Code, §§ 75000-75109). Plaintiff, Jean Waite, defendant's former wife, brought the present action in the Riverside County Superior Court against defendant fn. 1 and Houston Flournoy, State Controller and administrator of the Judges' Retirement System. Following change of venue to Los Angeles County, on August 7, 1968, that court entered judgment awarding plaintiff, her devisee or heirs, one-half of all benefits payable under the Judges' Retirement Law. Defendants appeal.
We affirm the determination of the Los Angeles County Superior Court holding that the portion of the Nevada judgment that awards defendant the whole of the retirement benefits is not entitled to full faith and credit; Nevada had neither personal jurisdiction over plaintiff nor in rem jurisdiction over the asset. We further hold that the retirement benefits attributable to defendant's service as a judge during the marriage constitute community property subject to division and award upon divorce. In so dividing this asset, the superior court awarded a one-half interest not only to plaintiff but also to her heirs and devisee. Since the purpose of the Judges' Retirement Law is to ensure sustenance for the retired judge and [6 Cal. 3d 465] his spouse, not to benefit their heirs or devisees, we conclude that this mode of division of the pension rights cannot stand and that the judgment in that respect must be reversed.
The following recital rests upon the superior court's findings of fact, which are not challenged on appeal. The parties married in 1934, and separated on January 20, 1967. During the marriage defendant served as a judge of the Superior Court of Riverside County. Over these years of service he contributed $13,090.18 to the Judges' Retirement Fund, all of which was community property. He retired on October 31, 1966, without withdrawing his contributions (Gov. Code, § 75033) or electing any optional settlement (Gov. Code, §§ 75070-75071), and became entitled to a monthly pension in an amount equal to 75 percent of the salary of the judge holding defendant's former office (Gov. Code, § 75076). At all relevant times this yielded a monthly payment of $1,562.50, but since defendant will obtain the benefits of any future increase in salary of that office, the trial court did not find the actuarial value of defendant's pension.
Plaintiff was eligible to retire from her teaching position on January 20, 1967, and did retire on June 16, 1967; she receives monthly benefits from the Teachers' Retirement Fund of $111.67. Her pension rights equal an actuarial value of $14,457, of which $13,879 is attributable to her services and contributions during the marriage.
Upon separating on January 20, 1967, the parties equitably divided the community property at hand, which included cash, notes, automobiles, clothing, and furniture. Apparently the only assets not included in the agreement were the parties' respective pension rights.
Plaintiff, on March 8, 1967, filed the present action for divorce in the Riverside County Superior Court, naming Houston Flournoy, State Controller and administrator of the Judges' Retirement Fund, as an additional party. Defendant and Flournoy appeared and answered the complaint. After trial the superior court, on August 7, 1968, concluded that the Nevada decree terminated the marriage, but that Nevada lacked jurisdiction to allocate the community property or fix alimony. The court divided the property, other than the pension rights, on the basis of the separation agreement; it awarded plaintiff all benefits under the Teachers' Retirement Fund, valued at $13,879. In return defendant received the $26,562.50 which had been paid him by the Judges' Retirement Fund between the separation and the date of trial.
As to amounts payable under the Judges' Retirement Law, the court ordered that "Flournoy or his successor in office pay directly to plaintiff herein or her devisee or heirs one half of all benefits which may be payable under the Judge's Retirement Act by reason of the services of defendant Waite." (Italics added.) Finally, the court awarded plaintiff alimony of $1 a month, but provided that "During any period of time that said payment be suspended pursuant to the provisions of Government Code [suspending payments whenever a retired judge accepts temporary judicial assignment and receives a salary] or for other cause within the control of defendant Waite, defendant Waite is ordered to pay as alimony to plaintiff a sum equal to 37 1/2% of the then salary of a judge of the Superior Court. ..."
Defendant's appeal attacks only the award to plaintiff, her devisee or heirs, of one-half of all benefits payable under the Judges' Retirement Law. He raises three contentions: (1) that the Nevada judgment awarding him all the benefits should receive full faith and credit in California; (2) that the benefits do not constitute community property, but his separate property; and (3) if plaintiff should predecease him, payments thereafter should go to defendant instead of to plaintiff's heirs or devisee.
2. The Nevada court lacked jurisdiction to divide and award the benefits accruing under the Judges' Retirement Law.
 Accordingly, we enumerate the relevant "contacts" of each state in the present case. The benefits here at issue arise from defendant's contributions while a judge in California, augmented by California tax revenues. The laws of California, not those of Nevada, define defendant's pension rights, and the laws of this state likewise fix the character of those rights as separate or community property. It was his service as a judge in California that entitles defendant to a pension, and during those years he was, of course, a resident of California. The pensioner's former wife, the plaintiff, remains a resident of California. The obligor of the claims asserted [6 Cal. 3d 469] here, the Judges' Retirement Fund, is a fund established in the State Treasury of California and administered by California's State Controller. fn. 2 Under these circumstances the fact that defendant, after retirement, established domicile in Nevada is far outweighed by the multiple relevant contacts of California.
We believe, moreover, that assignment of the "situs" of the pension benefits to California will promote the more efficient judicial administration (see Texas v. New Jersey (1965) 379 U.S. 674, 683 [13 L. Ed. 2d 596, 602, 85 S.Ct. 626]) and will be the more likely to aid in achieving a satisfactory division of the community property. When the foreign court lacks personal jurisdiction over the California spouse and in rem jurisdiction over the real and personal property which remains in California, the grant of jurisdiction over intangible assets to the foreign court may result in a piecemeal, inefficient, and sometimes inequitable disposition of the community property. In such a case the California court, as the only court that can exercise jurisdiction over all the parties and all community assets, constitutes the better equipped tribunal to adjudicate an equitable division of the community property.
 3. The benefits payable under the Judges' Retirement Law are community property.
In Phillipson v. Board of Administration (1970) 3 Cal. 3d 32 [89 Cal. Rptr. 61, 473 P.2d 765], we held that the accumulated contributions of a retired employee to the Public Employees' Retirement System were community property, subject to the jurisdiction of the divorce court; we upheld that court's award of those funds to the wife of the former employee. Although defendant seeks to distinguish Phillipson, most of his arguments run squarely into conflict with the express and considered language of that opinion.
Finally, defendant contends that Phillipson is limited to pensions under the Public Employees' Retirement System, and that pensions paid pursuant [6 Cal. 3d 471] to the Judges' Retirement Law are not community property. He notes that pensions under the Public Employees' Retirement System are payable in predetermined dollar amounts. Judges' pensions, however, are fixed as a percentage of the salary of the judicial office; an increase in pay to the judge's successor in office increases the retired judge's pension. (Gov. Code, § 75072.) Furthermore, the acceptance by a retired judge of a temporary judicial assignment reduces his pension to the extent of the salary he receives. (Gov. Code, § 68543.5.) Thus defendant argues that retired judges, unlike all other retired public employees, do not enjoy an unconditional and vested right to pension payments.
Yet, as we shall explain, defendant's points of alleged difference between judicial and non-judicial pensions cannot realistically affect our determination as to whether the judicial pension constitutes community or separate property.
The plan of payment of the pension -- whether fixed, or reflective of subsequent salary increases in the relevant position -- does not change the nature of the right to the pension. The right flows from the services rendered by the employee during marriage; the manner of the expression of the right does not distort it or alter its community characteristic.
Defendant correctly points out that in Phillipson we spoke of the retired employee's "unconditional" right to a pension (3 Cal.3d at p. 41), while in this case defendant's right carries the condition that the judge not accept judicial assignment at a salary in excess of his pension.  Yet the choice of whether or not the judge accepts future judicial assignments, if any are offered by the Chairman of the Judicial Council, lies with the judge; the exercise of any right accorded by the Judges' Retirement Law is completely within his control; hence this option does not reduce the pension to a "conditional" one. Defendant's rights under the Judges' Retirement Law, coupled with his power to refuse further judicial assignment, render his pension fully as secured, as "vested," as that of any other public employee.
Defendant would, in essence, invite us to declare that the matured pension rights of all public employees except judges are community property; that those of judges somehow are separate property. As we have seen, however, the differences between the Public Employees' Retirement Act and the Judges' Retirement Law, either do not exist at all or are relatively minor, and from a realistic view do not render judicial pensions less certain and secure than pensions of other employees. We conclude that judicial pensions must also be classed as community property.
4. The superior court exceeded its discretion in awarding benefits to plaintiff's heirs and devisees.
The superior court ordered the Controller to "pay directly to plaintiff herein or her devisee or heirs one half of all benefits which may be payable under the Judge's Retirement Act by reason of the services of defendant Waite." (Italics added.)  Defendant objects to the italicized language favoring plaintiff's heirs or devisees; fn. 6 he correctly contends that if plaintiff dies before him, her share of the monthly pension payments should then go directly to him, and not to plaintiff's estate.
 The state's concern, then, lies in provision for the subsistence of the employee and his spouse, not in the extension of benefits to such persons or organizations the spouse may select as the objects of her bounty. Once the spouse dies, of course, her need for subsistence ends, and the state's interest in her sustenance reaches a coincident completion. When this termination occurs, the state's concern narrows to the sustenance of the retired employee; its pension payments must necessarily be directed to that sole objective.
The wife complains that this reasoning deprives her of an "equal" portion of the pension; if the judge enjoys a right to payments for his lifetime but her right is limited to the period of the judge's life or her life (whichever is shorter), her interest would be unequal in length to his, and actuarially of lesser value. fn. 8 The wife, however, can claim no right to precise equality in the division of community assets; in fact, in Phillipson we suggested [6 Cal. 3d 474] that if feasible the court should award the entire pension to the employee, and compensate his spouse with property of equivalent value. (3 Cal.3d at p. 46.)  Thus a spouse suffers no injury when the court, in effectuating the purposes of the pension program, awards the employee more than half the actuarial value of the pension rights; the court, if it sees fit, may compensate the spouse by an award of more than half the value of some other community asset.
We conclude that the statutory design for judges' pensions negates the spouse's contention that her legatees should inherit pension payments payable for the balance of the judge's life. Whatever community interest the wife may claim, it cannot transcend the legislation upon which the pension itself rests.  The legislation grants to the wife, not an inheritable legacy, but a continuing economic protection for her lifetime, a state-secured provision for subsistence.
Since the Nevada judgment was not binding as to the division of community property, the superior court in the instant case had jurisdiction to divide the community assets. That court correctly determined that pension payments under the Judges' Retirement Law are community property, but in dividing that community asset, it erred in awarding benefits to the devisee or heirs of the plaintiff.
The judgment is therefore reversed. fn. 9 Each party shall bear his own costs on appeal.
FN 1. The term "defendant," in the singular, will be used to refer to Judge Waite alone; "defendants," in the plural, refers to Judge Waite and State Controller Houston Flournoy.
FN 3. See O'Dea v. Cook (1917) 176 Cal. 659, 661 [169 P. 366]; Brummund v. City of Oakland (1952) 111 Cal. App. 2d 114, 121 [244 P.2d 441].
FN 4. Defendant also seeks to distinguish Phillipson on the ground that, unlike Mr. Phillipson, defendant did not abscond with any community assets. We based our holding in Phillipson, however, on principles of community property, not upon any desire to punish Mr. Phillipson. The fact that he absconded with community funds became relevant only because the trial court did not divide the pension rights between the spouses, as in the present case, but awarded the entire accumulated contributions to Mrs. Phillipson -- an award that might have been questioned as inequitable if Mr. Phillipson had not left the jurisdiction and taken community assets of greater value.
FN 6. Defendant also complains that the language of the judgment awarding plaintiff and her successors "one half of all benefits which may be payable ... by reason of the services of defendant" (italics added) could be interpreted as awarding plaintiff one-half of any benefits paid to a surviving spouse, contrary to the holding of this court in Benson v. City of Los Angeles (1963) 60 Cal. 2d 355, 360-362 [33 Cal. Rptr. 257, 384 P.2d 649]. We doubt that the trial court intended an interpretation of its judgment directly contrary to controlling authority. Since plaintiff herself does not contend for any interpretation of the judgment which would give her the benefits of a surviving spouse, we interpret the superior court judgment as awarding plaintiff only one-half of the monthly pension benefits payable in the lifetime of defendant, and not awarding her any share in the benefits, if any, which may be payable to a surviving spouse of defendant.
FN 7. Under one optional program, if the employee dies before he has received pension payments equal to his accumulated contributions, the balance of those contributions go to his estate. (Gov. Code, § 75071, subd. (a).) The estate, however, receives no funds contributed by the state.
FN 8. Our refusal to sanction an award to the heirs or devisees of plaintiff creates in itself no inequality, since the pension system provides no benefit for the heirs or devisees of defendant. There is, arguably, an inequality in the failure of the Judges' Retirement Law to provide subsistence to the non-employee's ex-spouse after the employee's death. (The judge's own pension, of course, continues after his wife's death.) It is this inequality which gives defendant's share of the pension benefits a higher actuarial value than plaintiff's share. But this unequal treatment of the spouse who survives her employee husband would not be redressed by providing windfall benefits to the heirs or devisees of the spouse who dies before the employee.
FN 9. The judgment could be corrected by simply striking the award to plaintiff's devisee or heirs in paragraph 2 of the judgment. This modification, however, would transform the superior court's equal division of this community asset into an actuarially unequal division. The trial court, if it sees fit to do so, may compute that difference in actuarial value and alter other portions of its judgment to compensate plaintiff for this loss in value. In making the computation of actuarial value, the trial court may disregard the possibility that defendant's pension benefits may be affected by legislative amendment to the Judges' Retirement Law, by an increase in the salary paid to the judge holding defendant's former office, or by defendant's accepting temporary judicial assignment.


The tenth du Pont factor is the market interface between applicant and registrant.
In further support of its contention that confusion is unlikely, applicant argues that registrant has impliedly consented "to the use by Applicant of Applicant's logo." (Applicant's brief at 7.) We deem this argument to fall under the tenth du Pont factor, i.e., the market interface between applicant and registrant. See In re Opus One Inc., supra.
If, as applicant contends, the United States Army in fact consents to applicant's registration of the mark, "there is available to applicant in a future application a type of evidence which, under du Pont and subsequent case law, is entitled to great weight in the likelihood of confusion analysis, i.e., a valid consent agreement between applicant and registrant. The evidence of record applicant relies on in the present case simply does not suffice as a substitute for such an agreement. We have given that evidence due consideration, but conclude that the tenth du Pont evidentiary factor, i.e., the "market interface" between applicant and registrant, does not weigh in applicant's favor to any significant degree in this case." In re Opus One Inc., supra, 60 USPQ2d at 1822.
Case Finding: The fact that opposer also uses other media such as print and television advertising to market its services does not raise a genuine issue regarding the parties' channels of trade.
The fact that opposer also uses other media such as print and television advertising to market its services does not raise a genuine issue regarding the parties' channels of trade. See Octocom Systems Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1788 (Fed. Cir. 1990).
We turn finally to the tenth du Pont factor, "the market interface between applicant and the owner of a prior mark" which includes consideration of "(b) agreement provisions designed to preclude confusion, i.e., limitations on continued use of the marks by each party..." du Pont supra at 567.
A settlement Agreement may not negate a finding of potential likelihood of confusion.
Having found that there exists a likelihood of confusion, we elect to sustain the opposition on this basis alone. We will not consider opposers' claim, which was unpled but which was tried by the consent of the parties, that the current applicants are bound by a 1985 settlement agreement entered into by opposers and Mego Corp., the former owner of the old MEGO mark. See American Paging Inc. v. American Mobilephone Inc., 13 USPQ2d 2036, 2039 (TTAB 1989), aff'd 17 USPQ2d 1726 (Fed. Cir. 1990) and cases cited therein.
Even though the parties had an agreement to not sell a particular class of goods, the general public would be unaware of the agreement and still likely to believe the goods are related.
However, opposer's ARDEN B clothing is sold exclusively in opposer's own ARDEN B clothing stores, and the ARDEN B stores sell, almost exclusively, opposer's house brand of clothing. Opposer has expressed no intention of expanding the sale of its merchandise to include the stores of others or the brands of merchandise of others. Applicant argues that because opposer's goods are only sold in opposer's stores, and since opposer is prohibited by the parties' agreement from selling cosmetics under the ARDEN B mark, the parties' clothing and cosmetic products in this case will never in fact be sold together. Applicant's statement is true, but not compelling. First, purchasers are not going to be aware that opposer is prohibited from selling cosmetic products under the ARDEN B mark. Further, where products are closely related, merely because the products in fact would not be sold together would not necessarily prevent consumers, when encountering the products in different outlets, from believing the products come from the same source. See Freedom Savings and Loan Association v. Fidelity Bankers Life Insurance Company, 224 USPQ 300, 304 (TTAB 1984) ("It is not necessary that goods be competitive or be sold together or through the same outlets if they can be shown to be related in some manner that would suggest to persons encountering them, even at different locations, sources, or offices a likelihood of common sponsorship").
It is not necessary that goods be competitive or be sold together or through the same outlets if they can be shown to be related in some manner that would suggest to persons encountering them, even at different locations, sources, or offices a likelihood of common sponsorship.
In cases where equitable defenses have been pleaded and proved, it is necessary to decide whether the question of likelihood of confusion is inevitable or reasonably debatable because the equitable defenses of laches and acquiescence are barred if confusion is inevitable.
In cases such as this, where equitable defenses have been pleaded and proved, it is necessary to decide whether the question of likelihood of confusion is inevitable or reasonably debatable because the equitable defenses of laches and acquiescence are barred if confusion is inevitable. Ultra-White Co., Inc. v. Johnson Chemical Industries, Inc., 465 F.2d 891, 175 USPQ 166, 167 (CCPA 1972); Reflange Inc. v. R-Con International, supra; Hitachi Metals International v. Yamakyu Chain Kabushiki, 209 USPQ 1057, 1069 (TTAB 1981).
This is so because any injury to respondent caused by plaintiff's delay is outweighed by the public's interest in preventing confusion. Turner v. Hops Grill & Bar, Inc., 52 UPSQ2d 1310, 1313 (TTAB 1999), citing Coach House Restaurant Inc. v. Coach and Six Restaurants, Inc., 934 F.2d 1551, 19 UPSQ2d 1401, 1409 (11th Cir. 1991).
Earlier proceedings involving opposer's mark does not have a res judicata or collateral estoppel effect where the marks and goods at issue in the prior case are different from the earlier case(s).
Finally, the fact that opposer was the plaintiff in a 1978 opposition proceeding (No. 91062042) involving its MISS U.S.A. mark and a third party's MR. USA mark, in which the opposition ultimately was terminated and a registration issued to the applicant, is of no probative value in the present case. The only evidence pertaining to this prior case are TTABVUE and TARR records, which show only that the proceeding was filed on December 27, 1978 and instituted on March 6, 1979, that the applicant filed an answer on April 2, 1979, that an "appeal to CAFC" was taken on October 26, 1981, that the opposition was terminated on July 27, 1983, that a registration (Reg. No. 1253816) was issued to the applicant on October 11, 1983, and that the registration subsequently was cancelled under Section 8. There is no evidence from which we might ascertain the basis for the Board's apparent dismissal of the opposition and the Federal Circuit's apparent affirmance of such dismissal. We note that the goods identified in the third-party applicant's MR. USA application and registration were Class 25 clothing goods, a fact which in itself may have been the basis for a finding of no likelihood of confusion (assuming that such finding was in fact the basis of the decision and outcome of the case). The point is that we cannot determine what the basis of the decision in the prior case was; that case therefore is of no probative value. To the extent that applicant is arguing that this prior case has some sort of res judicata or collateral estoppel effect in the present case, such contention is without merit given the differences in the marks and goods at issue in the prior case.
Discussion of laches and estoppel in relation to the tenth du Pont factor.
FOOTNOTE 13 "Given the lack of sufficient evidence in the record to establish "laches or estoppel attributable to the owner of the prior mark," we need not reach the more fundamental question of whether applicant is entitled to rely on the tenth du Pont factor at all in this case. Arguably, the "laches and estoppel" provision set forth in subsection (d) of the tenth du Pont factor must be read in conjunction with the introductory language of the tenth factor. That is, "laches and estoppel attributable to owner of prior mark and indicative of lack of confusion" is relevant only as an example of "the market interface between applicant and the owner of a prior mark." No such market interface between applicant and registrant exists in this case; applicant relies solely on an alleged (but unproven) market interface between registrant and the Highland Orange Association, an entity with which applicant admittedly (see supra at footnote 8) shares no privity. This construction of the "laches and estoppel" provision of the tenth du Pont factor is consistent with the well-settled general rule, in inter partes cases, that laches and estoppel are personal defenses which may not be asserted by a third party, such as applicant in this case, who lacks privity with the person entitled to assert the defense. See, e.g., The Procter & Gamble Company v. Keystone Automotive Warehouse, Inc., 191 USPQ 468 (TTAB 1976). But see Interstate Brands Corp. v. Celestial Seasonings, Inc., 576 F.2d 926, 198 USPQ 151, 154 (CCPA 1978)(party's prior statement, in unrelated proceedings, of opinion on legal issue which is contrary to position taken in present proceeding is not an estoppel, but is relevant to the extent that it may be "illuminative of shade and tone in the total picture confronting the decision maker"). Additionally, and aside from the privity issue, we have found no reported cases in which the "laches and estoppel" provision of the tenth du Pont factor was applied in the context of an ex parte appeal, nor has applicant cited any such cases. It is true that du Pont itself was an ex parte case, but it did not involve laches or estoppel, on its facts. The only reported ex parte case we have found in which the applicant attempted to overcome a Section 2(d) refusal by asserting estoppel is the predu Pont case of In re National Distillers and Chemical Corporation, 132 USPQ 271 (CCPA 1962). The Court rejected the applicant's estoppel argument in that case, and held that laches, estoppel and acquiescence are applicable only in inter partes proceedings, not in the context of ex parte appeals: "We think that the clear intent of Congress was that section 19 [Trademark Act Section 19, 15 U.S.C. §1069] be limited to inter partes proceedings, and this for the very sound reason that the equitable principles of laches, estoppel and acquiescence are based on facts and should not be applied either in favor of or against one not a party to the proceeding. An ex parte proceeding arising from the refusal of the Patent Office to register a trademark does not become an inter partes proceeding in the sense of section 19 of the Lanham Act (15 U.S.C. 1069), as urged by applicant, merely because the applicant and the Patent Office appear many times in opposing roles." 132 USPQ at 276. It is unclear whether this statement of the law was implicitly overruled by the Court in du Pont. However, that question, as well as the privity question, are moot in this case because the evidence of record does not demonstrate any laches or estoppel attributable to the owner of the registration cited as a bar to registration of applicant's mark. 14 According to the allegation of use in the cited registration registrant commenced use of its mark in 1925. Use of the Highland Orange Association mark apparently commenced in 1898, and continued until some undetermined time between 1953, when its registration was renewed, and the expiration of its registration in 1973. See infra at footnote 16. Applicant commenced use of its mark in 1997.
Absent any evidence in the record, the TTAB may not infer that a party has consented to the other's use of a mark.
Even assuming, as applicant contends, that the United States Army consents to applicant's use of its mark, there is nothing in the record from which we might infer that the United States Army also consents to applicant's registration of the mark. See In re Thomas, 79 USPQ2d 1021 (TTAB 2006).
Indeed, there is no evidence that the United States Army is even aware that applicant has applied to register the mark. See In re Opus One Inc., supra.
Registrant's failure to respond to applicant's letters that registrants have consented to registration does not support applicant's claim that registrant has consented or has no objection to the registration of applicant's mark.
Nor will we infer from registrants' failure to respond to applicant's letters that registrants have consented to registration or that registrants have no objection to the registration of applicant's mark. The registrants clearly had no obligation to respond to applicant's inquiries. Therefore, their failure to respond does not support applicant's claim that they have no objection.
Similarly, we cannot conclude that registrant had no objection to applicant's earlier registration simply because registrant failed to object to it. We are not privy to registrant's reasons for not challenging the registration and we will not speculate about them. We do, however, note that any objections registrant may have had to applicant's earlier registration were eliminated once the registration was cancelled.
Priority under Article 7 of the Pan American Convention.
Applicant has moved for summary judgment by asserting priority under Article 7 of the Pan American Convention as an affirmative defense to opposer's Section 2(d) claim. Article 7 provides as follows: "Any owner of a mark protected in one of the contracting states in accordance with its domestic law, who may know that some other person is using or applying to register or deposit an interfering mark in any other of the contracting states, shall have the right to oppose such use, registration or deposit and shall have the right to employ all legal means, procedure or recourse provided in the country in which such interfering mark is being used or where its registration or deposit is being sought, and upon proof that the person who is using such mark or applying to register or deposit it, had knowledge of the existence and continuous use in any of the Contracting States of the mark on which opposition is based upon goods at the same class, the opposer may claim for himself the preferential right to use such mark in the country where the opposition is made or priority to register or deposit in such country, upon compliance with the requirements established by the domestic legislation in such country and by this Convention."
The Section 7(b) presumptions accorded a registration on the Principal Register, including the presumption of use of the mark, accrue only to the benefit of the owner of the registration, and thus only come into play in an inter partes proceeding when the registration is made of record by its owner.
FOOTNOTE 17 "The Section 7(b) presumptions accorded a registration on the Principal Register, including the presumption of use of the mark, accrue only to the benefit of the owner of the registration, and thus only come into play in an inter partes proceeding when the registration is made of record by its owner. See TBMP §704.03(b)(1)(B)."


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2013 marked centenary of the birth of German Valislyevich Troitskiy – Honoured Science Worker of Ukraine, holder of Palladin’s Prize, corresponding member of the Academy of Science of Ukraine, M. D. in Biology, Ph. D. in Medicine, Professor. For almost 40 years he was the Head of the Chair of Biochemistry in the Crimean medical institute. But his most precious achievement is training the whole pleiad of scholars dedicated to science and striving for new discoveries.
His dispute with some former managers of the institute became a classic: what is more important for a university – to train good students or good professors who will train good students? The answer is clear for anyone. The university that doesn’t train specialists for itself is going to fail. To train a good specialist just knowledge is not enough. The figure of professor plays here a significant role. He must be able to cultivate a love of learning in his students.
German Vasilyevich was a great teacher. He possessed ingenuous mind and a wide range of scientific knowledge in culture, history and natural science. His constant generation of new ideas, extraordinary intellect, zest for life and great sense of humour had a great impact on his students. A pleiad of students of German Vasilyevich and students of his students formed the Crimean biochemical school.
Troitskiy German Vasilyevich was born on 19 November, 1913 in a family of an advocate in Kazan’. From 1921 to 1931 he attended secondary school first in Simbirsk, then moved to Stavropol with is family. In 1932 German Vasilyevich entered the medical faculty at the Rostov medical institute and graduated from it in 1937. Troitskiy began his research activity already during his study, continued it in research institute in Rostov-on-Do and in 1940 he defended his Ph. D. thesis in medicine. But his life was dramatically changed by the Great Patriotic war. Almost since the very beginning of it German Vasilyevich was in the active army. He went from Stalingrad all the way to Berlin, was awarded the Order of the Red Star and the Distinguished Service Medal. Together with 51st army German Vasilyevich relieved the Crimean peninsula from fascists in 1944. So he came to the Crimea for the first time. Already after several years it would become his second motherland for many decades. After the war Troitskiy settled in Moscow and continued his research. Finally, on 19 March, 1951 German Vasilyevich brilliantly defended his post-doctoral thesis devoted to the biochemistry of vitamin A. Georgievsky Sergey Ivanovich, the director of the Crimean medical institute, was present at his thesis defense. The new director invited young talented Doctor of Biological Sciences to the Crimea and proposed him to take the lead at the chair of biochemistry in Simferopol. After some contemplation, German Vasilyevich accepted this proposal and on 11 April 1951 he was transferred to work in the Crimean medical institute by the order of the Ministry of Public Health of the USSR.
Here Troitskiy carried out his most important studies that became popular all around the world. He developed new methods, advanced a theory of preimmunity, discovered new scientific area – pathological anatomy of protein. Although his working conditions were difficult: there was severe shortage of reagents, labware and staff. German Vasilyevich often remembered that he had to saw off the lamp-holder of blown bulb to use its glass portion as a chemical flask. At the chemist’s Troitskiy used to buy distilled water for his experiments. At the beginning of the 50s Troitskiy predicted the importance of studies concerning human serum proteins in health and disease, having suggested any disease to start with the damage of molecules and the manifestations of disease to affect the main molecules – proteins. These thoughts of Troitskiy have been developed by his followers and are still relevant.
Any scientific research starts with the choice of method. If there isn’t adequate one, it needs to be invented. Academician Pavlov I. P. wrote that science develops as long as new research methods appear. Another Nobel laureate Academician Landau L. D. formulated more precisely: “Method is more important than a discovery”. At the chair of biochemistry headed by Troitskiy G. V. everyone followed this rule and paid great attention to the invention and modernization of equipment and techniques fractionizing proteins and studying their physical and chemical properties. Many staff members worked with pleasure in the experimental workshop affiliated with the chair organized by students of Troitskiy, Kobozev and Kiryukhin. This workshop was perfectly equipped. There were: milling machine, lathe, drilling machine, precise measuring equipment.
Devices produced at the chair were originally constructed and unique in the Soviet Union and sometimes in Europe that made possible to conduct extraordinary studies. Global practice shows that the author developing a new research method creates also the necessary specially crafted device and starts to carry out the most interesting and important experiments yet before publishing their results. After publication other authors mainly specify the research information.
The first research method to study blood proteins in clinic and experiment was optic (free) electrophoresis fractionizing proteins according to their electric charge. First electrophoretic device was created by Swedish scholar Arne Tiselius who was awarded the Nobel prize for this in 1948. But his device was bulky, unhandy and took 10-15 ml of albunimun solution for 1 trial. Troitskiy G. V. improved optic system installing inclined cylinder lens. The size of device decreased from 6,0 m to 1,5 m. Kobozev G. V. improved electrophoretic cell that helped to conduct trial with 1,0–3,0 ml of protein. To make easier mathematic calculations concerning electrophoretic mobility Kobozev constructed mechanic coulometer automatically fixing the main readings of electrophoregram. Electrophoresis in the apparatus constructed by A. Tiselius couldn’t carry out numerous examinations of patients. That’s why in clinics they began to use electrophoresis with filter paper as a supporting medium. In those years almost all the chairs and staff members of many hospitals started electrophoretic study of blood protein in different pathologies. The staff members of the chair of biochemistry developed over 10 different modifications of devices for paper electrophoresis. That’s why the chair of biochemistry under the guidance of Professor Troitskiy G. V. was coordinating and consulting center for research works of the institute.
Professor Troitskiy G. V. together with the staff members of the chair of biochemistry (1983).
Later on they began to use gel agar as a supporting medium for electrophoresis. Kobozev G. V. and Azhitskiy G. Yu. developed simple method to excrete the low molecular component of agar – agarose and constructed devices functioning with agar and agarose gel. The experience of work of the chair is summarized in Troitskiy’s monograph “Electrophoresis of Proteins” published in Kharkov in 1962. When the industry began to produce the sets of reagents for conducting electrophoresis in polyacrylamide gel – transparent, easily coloured, Kosik O. G. and Kiryukhin I. F. developed more manageable apparatuses for electrophoresis in this supporting medium.
Another achievement in methodology was the invention of absolutely new method of isoelectric focusing. Separation of protein compounds and receiving monocomponent protein preparations are the most important tasks in many areas of human activity (for example, for the receiving medical substances or for the diagnostics of diseases). One of the most effective ways for the separation of proteins is the method of isoelectric focusing based on the motion of proteins under the influence of electric field in the solution with the concentration of hydrogen protons gradually changing along the direction of motion of proteins (i.e. in the so called gradient pH). In regular electrophoresis the proteins are separated due to the difference of their charges in some certain pН of buffer solution. In different рН values proteins can have different charge: positive – and move towards the electrode with negative charge (cathode), or negative –and move towards the electrode with positive charge (anode). If the total charge of protein is zero, it loses its mobility in the electric field, and accompanying рН value is called isoelectric point of protein (рI). Each protein has its own certain value рI. In electrophoresis in buffer solutions with changing рН value proteins moving under the influence of electric field get consistently into the areas with different рН value of medium and in the areas where рН = рI, lose their charge and stop moving focusing in the form of narrow strips, each one in the area of its рI. This is the isoelectric focusing.
Profesor Troitskiy G. V. was the first scholar in the world who together with his students suggested to create gradient pH with the help of variable concentration of polyatomic alcohol – polyol (for instance, glycerin) in buffer solutions on the basis of boric acid. This method is based on the idea that the more the concentration of polyol, the more the concentration of hydrogen protons in the medium and the higher the density and viscosity of solution. It made possible to generate stable pH gradients for isoelectric focusing. Troitskiy’s students Kiryukhin I. F., Zavyalov V. P., Abramov V. M., Azhitskiy G. Yu. also took part in the development of this method and the invention of necessary equipment. The studies devoted to this method were started in 1969, but the first publications appeared in 1973. The research results were summarized in the monograph of Troitskiy G. V. and Azhitskiy G. Yu. “Isoelectric Focusing of Proteins in Self-Organizing and Artificial pH-Gradients” in 1984.
To study the space structure of protein at the chair of biochemistry they used the method of optical rotary dispersion. For this purpose Troitskiy, Kiryukhin, Kobozev and Kosik constructed the first in Europe spectropolarimeter, device measuring optical activity of albumin solution in different wavelength of light.
Professor Troitskiy G. V. near the constructed by him spectropolarimeter first in Europe (50s).
This device was characterized by high accuracy, had optico-electronic rotation angle reference of polarized light. With the help of this device a number of experimental and clinical studies were carried out: lipoproteins in experimental atherosclerosis, immunoglobulins in pathologies, etc. The materials of studies were widely quoted in the national and foreign literature. The review of studies of the department staff is represented in the last Troitskiy’s monograph “Defective Proteins. Postsynthetic Modification” published in 1991.
Professors (from left to right) Troitskiy G. V., Protsenko V. A. and Zhaklin Oliv (France) are discussing with Professor Kobozev G. V. his hypothesis about the space structure of lipoproteins (1974).
In their form proteins are conditionally divided into two groups: fibrillar (threadlike) and globular (in their form they remind globule i.e. sphere). Immunoglobulin fold in proteins can have repeated, regular structure. Regular structures can be spiral or folded. Spirals and folds make different contribution in the optical activity of protein that helps to study them in spectropolarimetric way. Earlier one thought folded structures (the so called beta-sheet) to exist only in the fibrillar proteins. For the first time on the basis of findings obtained with the help of spectropolarimeter constructed by him and his students Troitskiy G. V. advanced an idea about the existence of beta-sheet in the globular proteins. First these findings were published in the magazine “Biophysics” in 1965. The experiments carried out in many laboratories of the world (including rentgeno-structural analysis) proved this theory. Nowadays the presence of beta-sheets in the globular proteins is generally accepted fact.
The final achievement of Troitskiy G. V. is the theory of immunity. The backbone of the theory includes the following: when some endogenous or foreign toxic substances get into the organism serum albumin takes the fall binding these harmful molecules yet before the immune system comes into play. In addition, albumin is modified that sends signals to the human organism to combat dangerous substances as soon as possible.
On 17 October, 1992 German Vasilyevich died. During his long life 12 of his students defended their post-doctoral and over 50 their Ph. D. theses.
The portrait of German Vasilyevich and stands with the information about him are there in the corridor at the department, his portrait is in each class room. Since 31 March, 2000 one can see the memorial plate dedicated to Troitskiy German Vasilyevich on the main building of the Crimea State Medical University.
Professor Troitskiy G. V. and his post-graduate Efetov K. A. (1983).
In 2009 Efetov K. A. published his book called “The Boss Told” dedicated to the memory of German Vasilyevich. In the same year Efetov K. A. together with Mozhayev P. N. created the page of Troitskiy G. V. in Wikipedia, in 2012 it was translated into Ukrainian.
And now the task of those who worked with the scholar is to preserve the atmosphere of art and scientific research that he created and pass it on to the next generation of our staff members and students who couldn’t meet this fantastic person.

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In the Matter of Milagros Angelina Henriquez SANTIAGO, et al., appellants, v. Leeanders HENDERSON, respondent-respondent, et al., respondent.
 Phillip J. Jusino, Lake Grove, N.Y., for appellants. Janessa M. Trotto, Holbrook, N.Y., for respondent-respondent. Margaret Carlo, Bayport, N.Y., attorney for the child.
Phillip J. Jusino, Lake Grove, N.Y., for appellants.
Janessa M. Trotto, Holbrook, N.Y., for respondent-respondent.
Margaret Carlo, Bayport, N.Y., attorney for the child.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.
Opinion In a custody proceeding pursuant to Family Court Act article 6, the petitioners appeal from an order of the Family Court, Suffolk County (Whelan, J.), dated October 30, 2013, which, without a hearing, granted the father's motion to dismiss the petition for lack of standing.
“As between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances” (Matter of Wilson v. Smith, 24 A.D.3d 562, 563, 808 N.Y.S.2d 263 ; see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; Matter of Barcellos v. Warren–Kidd, 57 A.D.3d 984, 985, 870 N.Y.S.2d 443 ; Matter of Hyde v. King, 47 A.D.3d 813, 849 N.Y.S.2d 650 ; Matter of Bermeo v. Rios, 33 A.D.3d 613, 821 N.Y.S.2d 469 ; Matter of Dungee v. Simmons, 307 A.D.2d 312, 762 N.Y.S.2d 514 ). The burden of proof is on the nonparent to prove such extraordinary circumstances (see Matter of Tristram K., 25 A.D.3d 222, 226, 804 N.Y.S.2d 83 ). Absent proof of such extraordinary circumstances, an inquiry into the best interests of the child is not triggered (see Matter of Dungee v. Simmons, 307 A.D.2d at 312–313, 762 N.Y.S.2d 514 ). Here, the Family Court properly determined that the nonparent petitioners, whose petition to adopt the subject child was correctly denied (see Matter of Baby Girl N. [Anonymous], 122 A.D.3d 858, 996 N.Y.S.2d 367 [Appellate Division Docket No. 2013–09330; decided herewith] ), failed, in this custody proceeding, to allege the existence of extraordinary circumstances. Accordingly, the Family Court properly granted the father's motion to dismiss their custody petition for lack of standing (see Matter of Marquis B. v. Alexis H., 110 A.D.3d 790, 973 N.Y.S.2d 264 ; see also Matter of Andracchi v. Reetz, 106 A.D.3d 734, 966 N.Y.S.2d 102 ; Matter of Lampitt v. Lampitt, 103 A.D.3d 897, 959 N.Y.S.2d 550 ; Matter of Brown v. Zuzierla, 73 A.D.3d 765, 900 N.Y.S.2d 414 ).

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