Cases Following Williams II.

Fears registered by the dis- senters in the second Williams case that it might undermine the stability of all divorces and that 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 Sherrer v. Sherrer,59 which required Massachusetts, a state of domiciliary origin, to accord full faith and credit to a 90-day Florida decree that the husband had contested. The husband, 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. Because 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 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 it decreed, is 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 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. Sherrer v. Sherrer and Coe v. Coe, previously discussed, were declared not to be in point, because no personal service had been made upon the first wife, nor had she in any way participated 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

59
334 U.S. 343 (1948). [Back to text]
60
334 U.S. 378 (1948). In a dissenting opinion filed in Sherrer v. Sherrer, but applicable also to 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 has been gone through.” 334 U.S. at 377. [Back to text]
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,’ . . . I think that the judgment of the Connecticut court, but for the first Williams case and its progeny, 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 and which had no power to reach into another state and summon her before it. 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. at 676, 679–680. [Back to text]
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). Sherrer and Coe 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, because 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). [Back to text]