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CRS Annotated Constitution

Article IV -- Table of ContentsPrev | Next

Divorce Decrees: Domicile as the Jurisdictional Prerequisite

This, however, was only the beginning of the Court’s lawmaking in cases in rem. The most important class of such cases is that in which the respondent to a suit for divorce offers in defense an earlier decree from the courts of a sister State. By the almost universally accepted view prior to 1906, a proceeding in divorce was one against the marriage status, i.e., in rem, and hence might be validly brought by either party in any State where he or she was bona fide domiciled;47 and, conversely, when the plaintiff did not have a bona fide domicile in the State, a court could not render a decree binding in other States even if the nonresident defendant entered a personal appearance.48

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Divorce Suit: In Rem or in Personam; Judicial Indecision.—In 1906, however, by a vote of five to four, the Court departed from its earlier ruling, rendered five years previously in Atherton v. Atherton,49 and in Haddock v. Haddock,50 it announced that a divorce proceeding might be viewed as one in personam. In the former it was held, in the latter denied, that a divorce granted a husband without personal service upon the wife, who at the time was residing in another State, was entitled to recognition under the full faith and credit clause and the acts of Congress; the difference between the cases consisted solely in the fact that in the Atherton case the husband had driven the wife from their joint home by his conduct, while in the Haddock case he had deserted her. The court which granted the divorce in Atherton v. Atherton was held to have had jurisdiction of the marriage status, with the result that the proceeding was one in rem and hence required only service by publication upon the respondent. Haddock’s suit, on the contrary, was held to be as to the wife in personam and so to require personal service upon her or her voluntary appearance, neither of which had been had; although, notwithstanding this, the decree in the latter case was held to be valid in the State where obtained because of the State’s inherent power to determine the status of its own citizens. The upshot was a situation in which a man and a woman, when both were in Connecticut, were divorced; when both were in New York, were married; and when the one was in Connecticut and the other in New York, the former was divorced and the latter married. In Atherton v. Atherton the Court had earlier acknowledged that “a husband without a wife, or a wife without a husband, is unknown to the law.”

The practical difficulties and distresses likely to result from such anomalies were pointed out by critics of the decision at the time. In point of fact, they have been largely avoided, because most of the state courts have continued to give judicial recognition and full faith and credit to one another’s divorce proceedings on the basis of the older idea that a divorce proceeding is one in rem, and that if the applicant is bona fide domiciled in the State the court has jurisdiction in this respect. Moreover, until the second of the Williams v. North Carolina cases51 was decided in 1945, there had not been manifested the slightest disposition to challenge judicially the power of the States to determine what shall constitute domicile for divorce purposes. Shortly prior thereto, the Court in Davis v.[p.842]Davis52 rejected contentions adverse to the validity of a Virginia decree of which enforcement was sought in the District of Columbia. In this case, a husband, after having obtained in the District a decree of separation subject to payment of alimony, established years later a residence in Virginia and sued there for a divorce. Personally served in the District, where she continued to reside, the wife filed a plea denying that her husband was a resident of Virginia and averred that he was guilty of a fraud on the court in seeking to establish a residence for purposes of jurisdiction. In ruling that the Virginia decree, granting to the husband an absolute divorce minus any alimony payment, was enforceable in the District, the Court stated that in view of the wife’s failure, while in Virginia litigating her husband’s status to sue, to answer the husband’s charges of willful desertion, it would be unreasonable to hold that the husband’s domicile in Virginia was not sufficient to entitle him to a divorce effective in the District. The finding of the Virginia court on domicile and jurisdiction was declared to bind the wife. Davis v. Davis is distinguishable from the Williams v. North Carolina decisions in that in the former determination of the jurisdictional prerequisite of domicile was made in a contested proceeding while in the Williams cases it was not.

Williams I and Williams II.—In the Williams I and Williams II cases, the husband of one marriage and the wife of another left North Carolina, obtained six–week divorce decrees in Nevada, married there, and resumed their residence in North Carolina where both previously had been married and domiciled. Prosecuted for bigamy, the defendants relied upon their Nevada decrees and won the preliminary round of this litigation, that is, in Williams I,53 when a majority of the Justices, overruling Haddock v. Haddock, declaring that in this case, the Court must assume that the petitioners for divorce had a bona fide domicile in Nevada and not that their Nevada domicile was a sham. “[E]ach State, by virtue of its command over the domiciliaries and its large interest in the institution of marriage, can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent. There is no constitutional barrier if the form and nature of substituted service meet the requirements of due process.” Accordingly, a decree granted by Nevada to one, who, it is assumed, is at the time bona fide domiciled therein, is binding upon the courts of other States, including North Carolina in which the marriage was performed and where the other party to the marriage is still domiciled when the divorce was decreed. In view of its as[p.843]sumptions, which it justified on the basis of an inadequate record, the Court did not here pass upon the question whether North Carolina had the power to refuse full faith and credit to a Nevada decree because it was based on residence rather than domicile or because, contrary to the findings of the Nevada court, North Carolina found that no bona fide domicile had been acquired in Nevada.54

Presaging what ruling the Court would make when it did get around to passing upon the latter question, Justice Jackson, dissenting in Williams I, protested that “this decision repeals the divorce laws of all the States and substitutes the law of Nevada as to all marriages one of the parties to which can afford a short trip there. . . . While a State can no doubt set up its own standards of domicile as to its internal concerns, I do not think it can require us to accept and in the name of the Constitution impose them on other States. . . . The effect of the Court’s decision today—that we must give extra–territorial effect to any judgment that a state honors for its own purposes—is to deprive this Court of control over the operation of the full faith and credit and the due process clauses of the Federal Constitution in cases of contested jurisdiction and to vest it in the first State to pass on the facts necessary to jurisdiction.”55

Notwithstanding that one of the deserted spouses had died since the initial trial and that another had remarried, North Carolina, without calling into question the status of the latter marriage, began a new prosecution for bigamy; when the defendants appealed the conviction resulting therefrom, the Supreme Court, in Williams II,56 sustained the adjudication of guilt as not denying full faith and credit to the Nevada divorce decree. Reiterating the doctrine that jurisdiction to grant divorce is founded on domicile,57 a majority of the Court held that a decree of divorce rendered in one State may be collaterally impeached in another by proof that the court which rendered the decree lacked jurisdiction (the parties not having been domiciled therein), even though the record of proceedings in that court purports to show jurisdiction.58

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Cases Following Williams II.—Fears registered by the dissenters in the second Williams case that the stability of all divorces might be undermined thereby and that thereafter the court of each forum State, by its own independent determination of domicile, might refuse recognition of foreign decrees were temporarily set at rest by the holding in Sherrer v. Sherrer,59 wherein Massachusetts, a State of domiciliary origin, was required to accord full faith and credit to a 90–day Florida decree which had been contested by the husband. The latter, upon receiving notice by mail, retained Florida counsel who entered a general appearance and denied all allegations in the complaint, including the wife’s residence. At the hearing, the husband, though present in person and by counsel, did not offer evidence in rebuttal of the wife’s proof of her Florida residence, and when the Florida court ruled that she was a bona fide resident, the husband did not appeal. Inasmuch as the findings of the requisite jurisdictional facts, unlike those in the second Williams case, were made in proceedings in which the defendant appeared and participated, the requirements of full faith and credit were held to bar him from collaterally attacking such findings in a suit instituted by him in his home State of Massachusetts, particularly in the absence of proof that the divorce decree was subject to such collateral attack in a Florida court. Having failed to take advantage of the opportunities afforded him by his appearance in[p.845]the Florida proceeding, the husband was thereafter precluded from relitigating in another State the issue of his wife’s domicile already passed upon by the Florida court.

In Coe v. Coe,60 embracing a similar set of facts, the Court applied like reasoning to reach a similar result. Massachusetts again was compelled to recognize the validity of a six–week Nevada decree obtained by a husband who had left Massachusetts after a court of that State had refused him a divorce and had granted his wife separate support. In the Nevada proceeding, the wife appeared personally and by counsel filed a cross–complaint for divorce, admitted the husband’s residence, and participated personally in the proceedings. After finding that it had jurisdiction of the plaintiff, defendant, and the subject matter involved, the Nevada court granted the wife a divorce, which was valid, final, and not subject to collateral attack under Nevada law. The husband married again, and on his return to Massachusetts, his ex–wife petitioned the Massachusetts court to adjudge him in contempt for failing to make payments for her separate support under the earlier Massachusetts decree. Inasmuch as there was no intimation that under Massachusetts law a decree of separate support would survive a divorce, recognition of the Nevada decree as valid accordingly necessitated a rejection of the ex–wife’s contention.

Appearing to review Williams II, and significant for the social consequences produced by the result decreed therein, is the case of Rice v. Rice.61 To determine the widowhood status of the party litigants in relation to inheritance of property of a husband who had deserted his first wife in Connecticut, had obtained an ex parte divorce in Nevada, and after remarriage, had died without ever returning to Connecticut, the first wife, joining the second wife and[p.846]the administrator of his estate as defendants, petitioned a Connecticut court for a declaratory judgment. After having placed upon the first wife the burden of proving that the decedent had not acquired a bona fide domicile in Nevada, and after giving proper weight to the claims of power by the Nevada court, the Connecticut court concluded that the evidence sustained the contentions of the first wife, and in so doing, it was upheld by the Supreme Court. The cases of Sherrer v. Sherrer, and Coe v. Coe, previously discussed, were declared not to be in point, inasmuch as no personal service was made upon the first wife, nor did she in any way participate in the Nevada proceedings. She was not, therefore, precluded from challenging the findings of the Nevada court that the decedent was, at the time of the divorce, domiciled in that State.62


Footnotes

47 Cheever v. Wilson, 9 Wall. (76 U.S.) 108 (1870).
48 Andrews v. Andrews, 188 U.S. 14 (1903). See also German Savings Society v. Dormitzer, 192 U.S. 125 (1904).
49 181 U.S. 155, 162 (1901).
50 201 U.S. 562 (1906).
51 317 U.S. 287 (1942); 325 U.S. 226 (1945).
52 305 U.S. 32 (1938).
53 317 U.S. 287, 298–299 (1942).
54 Id., 302.
55 Id., 311.
56 325 U.S. 226, 229 (1945).
57 Bell v. Bell, 181 U.S. 175 (1901); Andrews v. Andrews, 188 U.S. 14 (1903).
58 Strong dissents were filed which have influenced subsequent holdings. Among these was that of Justice Rutledge which attacked both the consequences of the decision as well as the concept of jurisdictional domicile on which it was founded.
“Unless ‘matrimonial domicil,’ banished in Williams I [by the overruling of Haddock v. Haddock ], has returned renamed [‘domicil of origin’] in Williams II, every decree becomes vulnerable in every State. Every divorce, wherever granted . . . may now be reexamined by every other State, upon the same or different evidence, to redetermine the ‘jurisdiction fact,’ always the ultimate conclusion of ‘domicil.’ . . .
“The Constitution does not mention domicil. Nowhere does it posit the powers of the states or the nation upon that amorphous, highly variable common law conception. . . . No legal conception, save possibly ‘jurisdiction’ . . . afford such possibilities for uncertain application. . . . Apart from the necessity for travel, [to effect a change of domicile, the latter], criterion comes down to a purely subjective mental state, related to remaining for a length of time never yet defined with clarity. . . . When what must be proved is a variable, the proof and the conclusion which follows upon it inevitably take on that character. . . . [The majority have not held] that denial of credit will be allowed, only if the evidence [as to the place of domicile] is different or depending in any way upon the character or the weight of the difference. The test is not different evidence. It is evidence, whether the same or different and, if different, without regard to the quality of the difference, from which an opposing set of inferences can be drawn by the trier of fact ‘not unreasonably.’ . . . But . . . [the Court] does not define ‘not unreasonably.’ It vaguely suggests a supervisory function, to be exercised when the denial [of credit] strikes its sensibilities as wrong, by some not stated standard. . . . There will be no ‘weighing’ [of evidence], . . . only examination for sufficiency.” 325 U.S., 248, 251, 255, 258–259.
No less disposed to prophesy undesirable results from this decision was Justice Black in whose dissenting opinion Justice Douglas concurred.
“The full faith and credit clause, as now interpreted, has become a disrupting influence. The Court in effect states that the clause does not apply to divorce actions, and that States alone have the right to determine what effect shall be given to the decrees of other States. If the Court is abandoning the principle that a marriage [valid where made is valid everywhere], a consequence is to subject people to bigamy or adultery prosecutions because they exercise their constitutional right to pass from a State in which they were validly married on to another which refuses to recognize their marriage. Such a consequence violates basic guarantees.” Id., 262.
59 334 U.S. 343 (1948).
60 334 U.S. 378 (1948). In a dissenting opinion filed in the case of Sherrer v. Sherrer, but applicable also to the case of Coe v. Coe, Justice Frankfurter, with Justice Murphy concurring, asserted his inability to accept the proposition advanced by the majority that “regardless of how overwhelming the evidence may have been that the asserted domicile in the State offering bargain–counter divorces was a sham, the home State of the parties is not permitted to question the matter if the form of a controversy had been gone through.” 334 U.S., 343, 377.
61 336 U.S. 674 (1949). Of four justices dissenting, Black, Douglas, Rutledge, and Jackson, Justice Jackson alone filed a written opinion. To him the decision was “an example of the manner in which, in the law of domestic relations, ‘confusion now hath made his masterpiece,’ but for the first Williams case and its progeny, the judgment of the Connecticut court might properly have held that the Rice divorce decree was void for every purpose because it was rendered by a State court which never obtained jurisdiction of the nonresident defendant. But if we adhere to the holdings that the Nevada court had power over her for the purpose of blasting her marriage and opening the way to a successor, I do not see the justice of inventing a compensating confusion in the device of divisible divorce by which the parties are half–bound and half–free and which permits Rice to have a wife who cannot become his widow and to leave a widow who was no longer his wife.” Id., 676, 679, 680.
62 Vermont violated the clause in sustaining a collateral attack on a Florida divorce decree, the presumption of Florida’s jurisdiction over the cause and the parties not having been overcome by extrinsic evidence or the record of the case. Cook v. Cook, 342 U.S. 126 (1951) The Sherrer and Coe cases were relied upon. There seems, therefore, to be no doubt of their continued vitality.
A Florida divorce decree was also at the bottom of another case in which the daughter of a divorced man by his first wife and his legatee under his will sought to attack his divorce in the New York courts and thereby indirectly his third marriage. The Court held that inasmuch as the attack would not have been permitted in Florida under the doctrine of res judicata, it was not permissible under the full faith and credit clause in New York. On the whole, it appears that the principle of res judicata is slowly winning out against the principle of domicile. Johnson v. Muelberger, 340 U.S. 581 (1951).
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