The husband and wife being domiciled in New York, the husband
left the wife, acquired, in good faith, after a lapse of years, a
domicil in Connecticut, and obtained in that state, and in
accordance with its law, a judgment of divorce based on
constructive, and not actual, service of process on the wife, who
meanwhile remained domiciled in New York and never appeared in the
action. The wife subsequently sued for divorce in New York, and
obtained personal service in that state on the husband, who pleaded
the Connecticut judgment.
Held,
Without questioning the power of the State of Connecticut to
enforce the decree within its own borders, and without intimating
any doubt that the State of New York might give it such degree of
efficacy that it might be entitled to in view of the public policy
of the state, that the Connecticut decree, rendered as it was
without being based on personal service of the process on, and
therefore without personal jurisdiction of the court over, the
wife, was not entitled to obligatory enforcement in the New York by
virtue of the full faith and credit clause of the federal
Constitution.
A suit for divorce brought in a state other than that of domicil
of matrimony against a wife who is still domiciled therein is not a
proceeding
in rem justifying the court to enter a decree
as to the
res, or marriage relation, entitled to. be
enforced outside of the territorial jurisdiction of the court.
Questions concerning alleged fraud in contracting a marriage and
laches on the part of one of the parties in bringing an action for
divorce are matters solely of state cognizance, and may not even be
allowed to indirectly
Page 201 U. S. 563
influence this Court in determining the federal question which
is involved.
The states, at the time of the adoption of the Constitution,
possessed full power over the subject of marriage and divorce, and
the Constitution delegated no authority to the central government
in regard thereto, and the destruction of the power of the states
over the dissolution of marriage as to their own citizens cannot be
brought about by the operation of the full faith and credit clause
of the Constitution of the United States.
Previous decisions of this Court hold in regard to the full
faith and credit to be given by states to the judicial decrees of
other states that:
"The requirement is not that some, but that full, faith and
credit, equal to that to which it is entitled in the state where
rendered, shall be given to a judicial decree of another state.
Harding v. Harding, 198 U. S. 317."
"A personal judgment against a nonresident -- not a proceeding
in rem -- based merely upon constructive service and
therefore jurisdiction not being acquired over the defendant's
person may not be enforced in another state under the full faith
and credit clause.
Pennoyer v. Neff, 95 U. S.
714."
"All governments possess inherent power over the marriage
relation, its formation and dissolution, as regards their own
citizens, and where a court or legislature of a state has acted
conformably with its own laws concerning the marriage tie as to a
citizen of that state, its action is binding in that state as to
that citizen, and its validity under the due process clause of the
Constitution may not therein be questioned.
Maynard v.
Hill, 125 U. S. 190."
"As a corollary to the power of the state, irrespective of any
extraterritorial effect, any other sovereign may, under the
principles of comity, give to such a decree the efficacy which its
own conception of duty and public policy may justify."
"Where husband and wife are domiciled in a state, jurisdiction
exists in that state, for good cause, to enter a decree of divorce,
entitled to enforcement in another state under the full faith and
credit clause, and where a
bona fide domicil has been
acquired in a state by either husband or wife, a decree of divorce
obtained by either in a court having personal jurisdiction of the
other is likewise entitled to be so enforced in other states.
Cheever
v. Wilson, 9 Wall. 108."
"Where the domicil of a matrimony is in a particular state, and
the husband, abandoning the wife, wrongfully goes into another
state in order to avoid his marital obligation, such other state
does not become a new domicil of matrimony, nor the actual or
constructive domicil of the wife. That continues in the original
state until she actually acquires a new one.
Barber v.
Barber, 21 How. 582. "
Page 201 U. S. 564
"Where the domicil of the husband is in a particular state,
which is also the domicil of matrimony, the courts of that state
may, in virtue of the wife's duty to be at the matrimonial domicil,
disregard her unjustifiable absence therefrom and treat her as
having her domicil therein for the purpose of dissolving the
marriage and render a judgment to that effect entitled to
recognition in all other states under the full faith and credit
clause of the Constitution.
Atherton v. Atherton,
181 U. S.
155."
The facts, which involved the full faith and credit to be given
by the courts of the New York to a decree of divorce, obtained in
Connecticut by the husband, formerly a resident of New York, from
his wife still residing in New York, based on substituted service
of the summons, are stated in the opinion.
MR. JUSTICE WHITE delivered the opinion of the Court.
The plaintiff in error will be called the husband and the
defendant in error the wife.
The wife, a resident of the State of New York, sued the husband
in that state in 1899, and there obtained personal service upon
him. The complaint charged that the parties had been married in New
York in 1868, where they both resided and where the wife continued
to reside, and it was averred that the husband, immediately
following the marriage, abandoned the wife, and thereafter failed
to support her, and that he was the owner of property. A decree of
separation from bed and board and for alimony was prayed. The
answer admitted the marriage, but averred that its celebration was
procured by the
Page 201 U. S. 565
fraud of the wife, and that immediately after the marriage, the
parties had separated by mutual consent. It was also alleged that,
during the long period between the celebration and the bringing of
this action, the wife had in no manner asserted her rights, and was
barred by her laches from doing so. Besides, the answer alleged
that the husband had, in 1881, obtained in a court of the State of
Connecticut a divorce which was conclusive. At the trial before a
referee, the judgment roll in the suit for divorce in Connecticut
was offered by the husband and was objected to, first because the
Connecticut court had not obtained jurisdiction over the person of
the defendant wife, as the notice of the pendency of the petition
was by publication and she had not appeared in the action, and
second because the ground upon which the divorce was granted,
viz., desertion by the wife, was false. The referee
sustained the objections and an exception was noted. The judgment
roll in question was then marked for identification, and forms a
part of the record before us.
Having thus excluded the proceedings in the Connecticut court,
the referee found that the parties were married in New York in
1868, that the wife was a resident of the State of New York, that,
after the marriage, the parties never lived together, and shortly
thereafter that the husband, without justifiable cause, abandoned
the wife, and has since neglected to provide for her. The legal
conclusion was that the wife was entitled to a separation from bed
and board and alimony in the sum of $780 a year from the date of
the judgment. The action of the referee was sustained by the
Supreme Court of the State of New York, and a judgment for
separation and alimony was entered in favor of the wife. This
judgment was affirmed by the Court of Appeals. As, by the law of
the State of New York, after the affirmance by the Court of
Appeals, the record was remitted to the supreme court, this writ of
error to that court was prosecuted.
The federal question is did the court below violate the
Constitution of the United States by refusing to give to the
Page 201 U. S. 566
decree of divorce rendered in the State of Connecticut the faith
and credit to which it was entitled?
As the averments concerning the alleged fraud in contracting the
marriage and the subsequent laches of the wife are solely matters
of state cognizance, we may not allow them to even indirectly
influence our judgment upon the federal question to which we are
confined, and we therefore put these subjects entirely out of view.
Moreover, as, for the purpose of the federal issue, we are
concerned not with the mere form of proceeding by which the federal
rights, if any, was denied, but alone have power to decide whether
such right was denied, we do not inquire whether the New York court
should preferably have admitted the record of the Connecticut
divorce suit, and, after so admitting it, determined what effect it
would give to it, instead of excluding the record, and thus
refusing to give effect to the judgment. In order to decide whether
the refusal of the court to admit in evidence the Connecticut
decree denied to that decree the efficacy to which it was entitled
under the full faith and credit clause, we must first examine the
judgment roll of the Connecticut cause in order to fix the precise
circumstances under which the decree in that cause was
rendered.
Without going into detail, it suffices to say that, on the face
of the Connecticut record, it appeared that the husband, alleging
that he had acquired a domicil in Connecticut, sued the wife in
that state as a person whose residence was unknown, but whose last
known place of residence was in the State of New York at a place
stated, and charged desertion by the wife and fraud on her part in
procuring the marriage, and further, it is shown that no service
was made upon the wife except by publication and by mailing a copy
of the petition to her at her last known place of residence in the
State of New York.
With the object of confining our attention to the real question
arising from this condition of the Connecticut record, we state at
the outset certain legal propositions irrevocably concluded by
previous decisions of this Court, and which are required
Page 201 U. S. 567
to be borne in mind in analyzing the ultimate issue to be
decided.
First. The requirement of the Constitution is not that some, but
that full, faith and credit shall be given by states to the
judicial decrees of other states. That is to say, where a decree
rendered in one state is embraced by the full faith and credit
clause, that constitutional provision commands that the other
states shall give to the decree the force and effect to which it
was entitled in the state where rendered.
Harding v.
Harding, 198 U. S. 317.
Second. Where a personal judgment has been rendered in the
courts of a state against a nonresident merely upon constructive
service, and therefore without acquiring jurisdiction over the
person of the defendant, such judgment may not be enforced in
another state in virtue of the full faith and credit clause.
Indeed, a personal judgment so rendered is, by operation of the due
process clause of the Fourteenth Amendment, void as against the
nonresident, even in the state where rendered, and therefore such
nonresident, in virtue of rights granted by the Constitution of the
United States, may successfully resist, even in the state where
rendered, the enforcement of such a judgment.
Pennoyer v.
Neff, 95 U. S. 714. The
facts in that case were these: Neff, who was a resident of a state
other than Oregon, owned a tract of land in Oregon. Mitchell,
resident of Oregon, brought a suit in a court of that state upon a
money demand against Neff. The Oregon statutes required, in the
case of personal action against a nonresident, a publication of
notice, calling upon the defendant to appear and defend, and also
required the mailing to such defendant at his last known place of
residence of a copy of the summons and complaint. Upon affidavit of
the absence of Neff, and that he resided in the State of
California, the exact place being unknown, the publication required
by the statute was ordered and made, and judgment by default was
entered against Neff. Upon this judgment execution was issued and
real estate of Neff was sold and was ultimately acquired by
Page 201 U. S. 568
Pennoyer. Neff sued in the Circuit Court of the United States
for the District of Oregon to recover the property, and the
question presented was the validity in Oregon of the judgment there
rendered against Neff. After the most elaborate consideration, it
was expressly decided that the judgment rendered in Oregon under
the circumstances stated was void for want of jurisdiction and was
repugnant to the due process clause of the Constitution of the
United States. The ruling was based on the proposition that a court
of one state could not acquire jurisdiction to render personal
judgment against a nonresident who did not appear by the mere
publication of a summons, and that the want of power to acquire
such jurisdiction by publication could not be aided by the fact
that, under the statutes of the state in which the suit against the
nonresident was brought, the sending of a copy of the summons and
complaint to the post office address in another state of the
defendant was required and complied with. The Court said (p.
95 U. S.
727):
"Process from the tribunals of one state cannot run into another
state, and summon parties there domiciled to leave its territory
and respond to proceedings against them. Publication of process or
notice within the state where the tribunal sits cannot create any
greater obligation upon the nonresident to appear. Process sent to
him out of the state and process published within it are equally
unavailing in proceedings to establish his personal liability."
And the doctrine thus stated but expressed a general principle
expounded in previous decisions.
Bischoff
v. Wethered, 9 Wall. 812. In that case, speaking of
a money judgment recovered in the Common Pleas of Westminster Hall,
England, upon personal notice served in the City of Baltimore, Mr.
Justice Bradley, J., speaking for the Court, said (p.
76 U. S.
814):
"It is enough to say [of this proceeding] that it was wholly
without jurisdiction of the person, and whatever validity it may
have in England, by virtue of statute law, against property of the
defendant there situate, it can have no validity here, even of a
prima facie character. It is simply null. "
Page 201 U. S. 569
Third. The principles, however, stated in the previous
proposition, are controlling only as to judgments
in
personam, and do not relate to proceedings
in rem.
That is to say, in consequence of the authority which government
possesses over things within its borders, there is jurisdiction in
a court of a state by a proceeding
in rem, after the
giving of reasonable opportunity to the owner to defend, to affect
things within the jurisdiction of the court, even although
jurisdiction is not directly acquired over the person of the owner
of the thing.
Pennoyer v. Neff, supra.
Fourth. The general rule stated in the second proposition is,
moreover, limited by the inherent power which all governments must
possess over the marriage relation, its formation and dissolution,
as regards their own citizens. From this exception it results that,
where a court of one state, conformably to the laws of such state,
or the state, through its legislative department, has acted
concerning the dissolution of the marriage tie, as to a citizen of
that state, such action is binding in that state as to such
citizen, and the validity of the judgment may not therein be
questioned on the ground that the action of the state in dealing
with its own citizen concerning the marriage relation was repugnant
to the due process clause of the Constitution.
Maynard v.
Hill, 125 U. S. 190. In
that case, the facts were these: Maynard was married in Vermont,
and the husband and wife removed to Ohio, from whence Maynard left
his wife and family and went to California. Subsequently he
acquired a domicil in the Territory of Washington. Being there so
domiciled, an act of the legislature of the territory was passed
granting a divorce to the husband. Maynard continued to reside in
Washington, and there remarried and died. The children of the
former wife, claiming in right of their mother, sued in a court of
the Territory of Washington to recover real estate situated in the
territory, and one of the issues for decision was the validity of
the legislative divorce granted to the father. The statute was
assailed as invalid on the ground that Mrs.
Page 201 U. S. 570
Maynard had no notice, and that she was not a resident of the
territory when the act was passed. From a decree of the supreme
court of the territory adverse to their claim, the children brought
the case to this Court. The power of the territorial legislature,
in the absence of restrictions in the organic act, to grant a
divorce to a citizen of the territory was however upheld in view of
the nature and extent of the authority which government possessed
over the marriage relation. It was therefore decided that the
courts of the territory committed no error in giving effect within
the territory to the divorce in question. And as a corollary of the
recognized power of a government thus to deal with its own citizen
by a decree which would be operative within its own borders,
irrespective of any extraterritorial efficacy, it follows that the
right of another sovereignty exists, under principles of comity, to
give to a decree so rendered such efficacy as to that government
may seem to be justified by its conceptions of duty and public
policy.
Fifth. It is no longer open to question that, where husband and
wife are domiciled in a state, there exists jurisdiction in such
state, for good cause, to enter a decree of divorce which will be
entitled to enforcement in another state by virtue of the full
faith and credit clause. It has, moreover, been decided that where
a
bona fide domicil has been acquired in a state by either
of the parties to a marriage, and a suit is brought by the
domiciled party in such state for divorce, the courts of that
state, if they acquire personal jurisdiction also of the other
party, have authority to enter a decree of divorce entitled to be
enforced in every state by the full faith and credit clause.
Cheever v.
Wilson, 9 Wall. 108.
Sixth. Where the domicil of matrimony was in a particular state,
and the husband abandons his wife and goes into another state in
order to avoid his marital obligations, such other state to which
the husband has wrongfully fled does not, in the nature of things,
become a new domicil of matrimony, and therefore is not to be
treated as the actual or constructive
Page 201 U. S. 571
domicil of the wife; hence, the place where the wife was
domiciled when so abandoned constitutes her legal domicil until a
new actual domicil be by her elsewhere acquired. This was clearly
expressed in
Barber v.
Barber, 21 How. 582, where it was said (p.
62 U. S.
595):
"The general rule is that a voluntary separation will not give
to the wife a different domiciliation in law from that of her
husband. But if the husband, as is the fact in this case, abandons
their domicil and his wife, to get rid of all those conjugal
obligations which the marriage relation imposes upon him, neither
giving to her the necessaries nor the comforts suitable to their
condition and his fortune, and relinquishes altogether his marital
control and protection, he yields up that power and authority over
her which alone makes his domicil hers."
And the same doctrine was expressly upheld in
Cheever v.
Wilson, supra, where the Court said (9 Wall.
76 U. S.
123):
"It is insisted that Cheever never resided in Indiana; that the
domicil of the husband is the wife's, and that she cannot have a
different one from his. The converse of the latter proposition is
so well settled that it would be idle to discuss it. The rule is
that she may acquire a separate domicil whenever it is necessary or
proper that she should do so. The right springs from the necessity
for its exercise, and endures as long as the necessity
continues."
Seventh. So also it is settled that, where the domicil of a
husband is in a particular state, and that state is also the
domicil of matrimony, the courts of such state having jurisdiction
over the husband may, in virtue of the duty of the wife to be at
the matrimonial domicil, disregard an unjustifiable absence
therefrom, and treat the wife as having her domicil in the state of
the matrimonial domicil for the purpose of the dissolution of the
marriage, and as a result have power to render a judgment
dissolving the marriage which will be binding upon both parties,
and will be entitled to recognition in all other states by virtue
of the
Page 201 U. S. 572
full faith and credit clause.
Atherton v. Atherton,
181 U. S. 155.
Coming to apply these settled propositions to the case before
us, three things are beyond dispute: a. In view of the authority
which government possesses over the marriage relation, no question
can arise on this record concerning the right of the State of
Connecticut within its borders to give effect to the decree of
divorce rendered in favor of the husband by the courts of
Connecticut, he being at the time when the decree was rendered
domiciled in that state. b. As New York was the domicil of the wife
and the domicil of matrimony, from which the husband fled in
disregard of his duty, it clearly results from the sixth
proposition that the domicil of the wife continued in New York. c.
As then there can be no question that the wife was not
constructively present in Connecticut by virtue of a matrimonial
domicil in that state, and was not there individually domiciled,
and did not appear in the divorce cause, and was only
constructively served with notice of the pendency of that action,
it is apparent that the Connecticut court did not acquire
jurisdiction over the wife within the fifth and seventh
propositions -- that is, did not acquire such jurisdiction by
virtue of the domicil of the wife within the state or as the result
of personal service upon her within its borders.
These subjects being thus eliminated, the case reduces itself to
this: whether the Connecticut court, in virtue alone of the domicil
of the husband in that state, had jurisdiction to render a decree
against the wife under the circumstances stated which was entitled
to be enforced in other states in and by virtue of the full faith
and credit clause of the Constitution. In other words, the final
question is whether, to enforce in another jurisdiction the
Connecticut decree would not be to enforce in one state a personal
judgment rendered in another state against a defendant over whom
the court of the state rendering the judgment had not acquired
jurisdiction? Otherwise stated, the question is this: is a
proceeding for divorce
Page 201 U. S. 573
of such an exceptional character as not to come within the rule
limiting the authority of a state to persons within its
jurisdiction, but, on the contrary, because of the power which
government may exercise over the marriage relation, constitutes an
exception to that rule, and is therefore embraced either within the
letter or spirit of the doctrine stated in the third or fourth
propositions?
Before reviewing the authorities relied on to establish that a
divorce proceeding is of the exceptional nature indicated, we
propose first to consider the reasons advanced to sustain the
contention. In doing so, however, it must always be borne in mind
that it is elementary that, where the full faith and credit clause
of the Constitution is invoked to compel the enforcement in one
state of a decree rendered in another, the question of the
jurisdiction of the court by which the decree was rendered is open
to inquiry. And if there was no jurisdiction either of the subject
matter or of the person of the defendant, the courts of another
state are not required by virtue of the full faith and credit
clause of the Constitution to enforce such decree.
National
Exchange Bank v. Wiley, 195 U. S. 259,
195 U. S. 269,
and cases cited.
I. The wide scope of the authority which government possesses
over the contract of marriage and its dissolution is the basis upon
which it is argued that the domicil within one state of one party
to the marriage gives to such a state jurisdiction to decree a
dissolution of the marriage tie which will be obligatory in all the
other states by force of the full faith and credit clause of the
Constitution. But the deduction is destructive of the premise upon
which it rests. This becomes clear when it is perceived that, if
one government, because of its authority over its own citizens, has
the right to dissolve the marriage tie as to the citizen of another
jurisdiction, it must follow that no government possesses as to its
own citizens power over the marriage relation and its dissolution.
For if it be that one government, in virtue of its authority over
marriage, may dissolve the tie as to citizens of another
Page 201 U. S. 574
government, other governments would have a similar power, and
hence the right of every government as to its own citizens might be
rendered nugatory by the exercise of the power which every other
government possessed. To concretely illustrate: if the fact be
that, where persons are married in the State of New York, either of
the parties to the marriage may, in violation of the marital
obligations, desert the other and go into the State of Connecticut,
there acquiring a domicil, and procure a dissolution of the
marriage which would be binding in the State of New York as to the
party to the marriage there domiciled, it would follow that the
power of the State of New York as to the dissolution of the
marriage as to its domiciled citizen would be of no practical
avail. And conversely, the like result would follow if the marriage
had been celebrated in Connecticut and desertion had been from that
state to New York, and consequently the decree of divorce had been
rendered in New York. Even a superficial analysis will make this
clear. Under the rule contended for, it would follow that the
states whose laws were the most lax as to length of residence
required for domicil, as to causes for divorce and to speed of
procedure concerning divorce, would in effect dominate all the
other states. In other words, any person who was married in one
state and who wished to violate the marital obligations would be
able, by following the lines of least resistance, to go into the
state whose laws were the most lax, and there avail of them for the
purpose of the severance of the marriage tie and the destruction of
the rights of the other party to the marriage contract, to the
overthrow of the laws and the public policy of the other states.
Thus, the argument comes necessarily to this -- that to preserve
the lawful authority of all the states over marriage, it is
essential to decide that all the states have such authority only at
the sufferance of the other states. And the considerations just
stated serve to dispose of the argument that the contention relied
on finds support in the ruling made in
Maynard v. Hill,
referred to in the fourth proposition which was at the outset
stated. For in that case,
Page 201 U. S. 575
the sole question was the effect within the Territory of
Washington of a legislative divorce granted in the territory to a
citizen thereof. The upholding of the divorce within the territory
was therefore but a recognition of the power of the territorial
government, in virtue of its authority over marriage, to deal with
a person domiciled within its jurisdiction. The case therefore did
not concern the extraterritorial efficacy of the legislative
divorce. In other words, whilst the ruling recognized the ample
powers which government possesses over marriage as to one within
its jurisdiction, it did not purport to hold that such ample powers
might be exercised and enforced by virtue of the Constitution of
the United States in another jurisdiction as to citizens of other
states to whom the jurisdiction of the territory did not
extend.
The anomalous result which it is therefore apparent would arise
from maintaining the proposition contended for is made more
manifest by considering the instrument from which such result would
be produced -- that is, the full faith and credit clause of the
Constitution. No one denies that the states, at the time of the
adoption of the Constitution, possessed full power over the subject
of marriage and divorce. No one, moreover, can deny that, prior to
the adoption of the Constitution, the extent to which the states
would recognize a divorce obtained in a foreign jurisdiction
depended upon their conceptions of duty and comity. Besides, it
must be conceded that the Constitution delegated no authority to
the government of the United States on the subject of marriage and
divorce. Yet if the proposition be maintained, it would follow that
the destruction of the power of the states over the dissolution of
marriage as to their own citizens would be brought about by the
operation of the full faith and credit clause of the Constitution.
That is to say, it would come to pass that, although the
Constitution of the United States does not interfere with the
authority of the states over marriage, nevertheless the full faith
and credit clause of that instrument destroyed the authority of the
states over the marriage relation.
Page 201 U. S. 576
And as the government of the United States has no delegated
authority on the subject, that government would be powerless to
prevent the evil thus brought about by the full faith and credit
clause. Thus, neither the states nor the national government would
be able to exert that authority over the marriage tie possessed by
every other civilized government. Yet more remarkable would be such
result when it is borne in mind that, when the Constitution was
adopted, nowhere, either in the mother country or on the continent
of Europe, either in adjudged cases or in the treatises of
authoritative writers, had the theory ever been upheld or been
taught or even suggested that one government, solely because of the
domicil within its borders of one of the parties to a marriage, had
authority, without the actual or constructive presence of the
other, to exert its authority by a dissolution of the marriage tie,
which exertion of power it would be the duty of other states to
respect as to those subject to their jurisdiction.
II. It is urged that the suit for divorce was a proceeding
in rem, and therefore the Connecticut court had complete
jurisdiction to enter a decree as to the
res entitled to
be enforced in the State of New York. But here again the argument
is contradictory. It rests upon the theory that jurisdiction in
Connecticut depended upon the domicil of the person there suing,
and yet attributes to the decree resting upon the domicil of one of
the parties alone a force and effect based upon the theory that a
thing within the jurisdiction of Connecticut was the subject matter
of the controversy. But, putting this contradiction aside, what,
may we ask, was the
res in Connecticut? Certainly it
cannot in reason be said that it was the cause of action or the
mere presence of the person of the plaintiff within the
jurisdiction. The only possible theory, then, upon which the
proposition proceeds must be that the
res in Connecticut
from which the jurisdiction is assumed to have arisen was the
marriage relation. But as the marriage was celebrated in New York
between citizens
Page 201 U. S. 577
of that state, it must be admitted under the hypothesis stated
that, before the husband deserted the wife in New York, the
res was in New York, and not in Connecticut. As the
husband, after wrongfully abandoning the wife in New York, never
established a matrimonial domicil in Connecticut, it cannot be said
that he took with him the marital relation from which he fled to
Connecticut. Conceding, however, that he took with him to
Connecticut so much of the marital relation as concerned his
individual status, it cannot in reason be said that he did not
leave in New York so much of the relation as pertained to the
status of the wife. From any point of view, then, under the
proposition referred to, if the marriage relation be treated as the
res, it follows that it was divisible, and therefore there
was a
res in the State of New York and one in the State of
Connecticut. Thus considered, it is clear that the power of one
state did not extend to affecting the thing situated in another
state. As illustrating this conception, we notice the case of
Mississippi & Missouri R.
Co. v. Ward, 2 Black 485. The facts in that case
were these: a bill was filed in a District Court of the United
States for the District of Iowa to abate a nuisance alleged to have
been occasioned by a bridge across the Mississippi River, dividing
the states of Illinois and Iowa. Under the assumption that the
nuisance was occasioned by the operation of the bridge on the
Illinois side, the Court, after pointing out that the United States
Circuit Court for the District of Iowa exercised the same
jurisdiction that a state court of Iowa could exercise, and no
more, said (p.
67 U. S.
494):
"The district court had no power over the local object
inflicting the injury; nor any jurisdiction to inquire of the
facts, whether damage had been sustained, or how much. These facts
are beyond the court's jurisdiction and powers of inquiry, and
outside of the case."
Nor is the conclusive force of the view which we have stated
been met by the suggestion that the
res was indivisible,
and therefore was wholly in Connecticut and wholly in New York,
Page 201 U. S. 578
for this amounts but to saying that the same thing can be at one
and the same time in different places. Further, the reasoning above
expressed disposes of the contention that, as the suit in
Connecticut involved the status of the husband, therefore the
courts of that state had the power to determine the status of the
nonresident wife by a decree which had obligatory force outside of
the State of Connecticut. Here again, the argument comes to this --
that, because the State of Connecticut had jurisdiction to fix the
status of one domiciled within its borders, that state also had the
authority to oust the State of New York of the power to fix the
status of a person who was undeniably subject to the jurisdiction
of that state.
III. It is urged that whilst marriage is, in one aspect, a
contract, it is nevertheless a contract in which society is deeply
interested, and therefore government must have the power to
determine whether a marriage exists or to dissolve it, and hence
the Connecticut court had jurisdiction of the relation and the
right to dissolve it not only as to its own citizen, but as to a
citizen of New York who was not subject to the jurisdiction of the
State of Connecticut. The proposition involves in another form of
statement the
non sequitur which we have previously
pointed out -- that is, that, because government possesses power
over marriage, therefore the existence of that power must be
rendered unavailing.
Nor is the contention aided by the proposition that, because it
is impossible to conceive of the dissolution of the marriage as to
one of the parties in one jurisdiction without at the same time
saying that the marriage is dissolved as to both in every other
jurisdiction, therefore the Connecticut decree should have
obligatory effect in New York as to the citizen of that state. For
again, by a change of form of statement, the same contention which
we have disposed of is reiterated. Besides, the proposition
presupposes that, because, in the exercise of its power over its
own citizens, a state may determine to dissolve the marriage tie by
a decree which is efficacious
Page 201 U. S. 579
within its borders, therefore such decree is in all cases
binding in every other jurisdiction. As we have pointed out at the
outset, it does not follow that a state may not exert its power as
to one within its jurisdiction simply because such exercise of
authority may not be extended beyond its borders into the
jurisdiction and authority of another state. The distinction was
clearly pointed out in
Blackinton v. Blackinton, 141 Mass.
432. In that case, the parties were married and lived in
Massachusetts. The husband abandoned the wife without cause, and
became domiciled in New York. The wife remained at the matrimonial
domicil in Massachusetts and instituted a proceeding to prohibit
her husband from imposing any restraint upon her personal liberty
and for separate maintenance. Service was made upon the husband in
New York. The court, recognizing fully that, under the
circumstances disclosed, the domicil of the husband was not the
domicil of the wife, concluded that, under the statutes of
Massachusetts, it had authority to grant the relief prayed, and was
then brought to determine whether the decree ought to be made, in
view of the fact that such decree might not have extraterritorial
force. But this circumstance was held not to be controlling, and
the decree was awarded. The same doctrine was clearly expounded by
the Privy Council, in an opinion delivered by Lord Watson, in the
divorce case of
Le Mesurier v. Le Mesurier (1895) A.C.
517, where it was said (p. 527):
"When the jurisdiction of the court is exercised according to
the rules of international law, as in the case where the parties
have their domicil within its forum, its decree dissolving their
marriage ought to be respected by the tribunals of every civilized
country. . . . On the other hand, a decree of divorce
a
vinculo, pronounced by a court whose jurisdiction is solely
derived from some rule of municipal law peculiar to its forum,
cannot, when it trenches upon the interests of any other country to
whose tribunals the spouses were amenable, claim extraterritorial
authority."
IV. The contention that, if the power of one state to decree
Page 201 U. S. 580
a dissolution of a marriage which would be compulsory upon the
other states be limited to cases where both parties are subject to
the jurisdiction, the right to obtain a divorce could be so
hampered and restricted as to be in effect impossible of exercise,
is but to insist that, in order to favor the dissolution of
marriage and to cause its permanency to depend upon the mere
caprice or wrong of the parties, there should not be applied to the
right to obtain a divorce those fundamental principles which
safeguard the exercise of the simplest rights. In other words, the
argument but reproduces the fallacy already exposed, which is that
one state must be endowed with the attribute of destroying the
authority of all the others concerning the dissolution of marriage
in order to render such dissolution easy of procurement. But even
if the true and controlling principles be for a moment put aside
and mere considerations of inconvenience be looked at, it would
follow that the preponderance of inconvenience would be against the
contention that a state should have the power to exert its
authority concerning the dissolution of marriage as to those not
amenable to its jurisdiction. By the application of that rule, each
state is given the power of overshadowing the authority of all the
other states, thus causing the marriage tie to be less protected
than any other civil obligation, and this to be accomplished by
destroying individual rights without a hearing and by tribunals
having no jurisdiction. Further, the admission that jurisdiction in
the courts of one state over one party alone was the test of the
right to dissolve the marriage tie as to the other party, although
domiciled in another state, would at once render such test
impossible of general application. In other words, the test, if
admitted, would destroy itself. This follows since, if that test
were the rule, each party to the marriage in one state would have a
right to acquire a domicil in a different state and there institute
proceedings for divorce. It would hence necessarily arise that
domicil would be no longer the determinative criterion, but the
mere race of diligence between the parties in seeking different
Page 201 U. S. 581
forums in other states or the celerity by which in such states
judgments of divorce might be procured would have to be considered
in order to decide which forum was controlling.
On the other hand, the denial of the power to enforce in another
state a decree of divorce rendered against a person who was not
subject to the jurisdiction of the state in which the decree was
rendered obviates all the contradictions and inconveniences which
are above indicated. It leaves uncurtailed the legitimate power of
all the states over a subject peculiarly within their authority,
and thus not only enables them to maintain their public policy, but
also to protect the individual rights of their citizens. It does
not deprive a State of the power to render a decree of divorce
susceptible of being enforced within its borders as to the person
within the jurisdiction, and does not debar other states from
giving such effect to a judgment of that character as they may
elect to do under mere principles of state comity. It causes the
full faith and credit clause of the Constitution to operate upon
decrees of divorce in the respective states just as that clause
operates upon other rights -- that is, it compels all the states to
recognize and enforce a judgment of divorce rendered in other
states where both parties were subject to the jurisdiction of the
state in which the decree was rendered, and it enables the states
rendering such decrees to take into view, for the purpose of the
exercise of their authority, the existence of a matrimonial domicil
from which the presence of a party not physically present within
the borders of a state may be constructively found to exist.
Having thus disposed of the reasoning advanced to sustain the
assertion that the courts of the State of New York were bound by
the full faith and credit clause to give full effect to the
Connecticut decree, we are brought to consider the authorities
relied upon to support that proposition.
Whilst the continental and English authorities are not alluded
to in the argument, it may be well, in the most summary way, to
refer to them as a means of illustrating the
Page 201 U. S. 582
question for consideration. The extent of the power which
independent sovereignties exercised over the dissolution of the
marriage tie as to their own citizens gave rise, in the nature of
things, to controversies concerning the extraterritorial effect to
be given to a dissolution of such tie when made between citizens of
one country by judicial tribunals of another country in which such
citizens had become domiciled. We do not deem it essential,
however, to consider the conflicting theories and divergent rules
of public policy which were thus engendered. We are relieved of the
necessity of entering upon such an inquiry since it cannot be
doubted that neither the practice nor the theories controlling in
the countries on the continent lend the slightest sanction to the
contention that a government, simply because one of the parties to
a marriage was domiciled within its borders, where no matrimonial
domicil ever existed, had power to render a decree dissolving a
marriage, which, on principles of international law, was entitled
to obligatory extraterritorial effect as to the other party to the
marriage, a citizen of another country. Wharton, Conf.Laws, 3d ed.,
§ 209, p. 441, sec. 209 and notes.
It cannot be doubted also that the courts of England decline to
treat a foreign decree of divorce as having obligatory
extraterritorial force when both parties to the marriage were not
subject to the jurisdiction of the court which rendered the decree.
Shaw v. Gould, L.R. 3 H.L. 55;
Harvey v. Farnie,
L.R. 8 App.Cas. 43. And, although it has been suggested in opinions
of English judges treating of divorce questions that exceptional
cases might arise which perhaps would justify a relaxation of the
rigor of a presumption that the domicil of the husband was the
domicil of the wife, per Lords Eldon and Redesdale, in
Tovey v.
Lindsay, 1 Dow, P.C. 133, 140; per Lord Westbury in
Pitt
v. Pitt, 4 Macq. 627, 640; per Brett, L.J. in
Niboyet v.
Niboyet, 4 P.D. 14;
Briggs v. Briggs, 5 P.D. 165, and
per James and Cotton, L.JJ., in
Harvey v. Farnie, 6 P.D.
47, 49, the courts of England, in cases where the jurisdiction was
dependent upon domicil, have enforced
Page 201 U. S. 583
the presumption, and treated the wife as being within the
jurisdiction where the husband was legally domiciled. But this
conception was not a departure from the principle uniformly
maintained that, internationally considered, jurisdiction over both
parties to a marriage was essential to the exercise of power to
decree a divorce, but was simply a means of determining by a legal
presumption whether both parties were within the jurisdiction. Of
course, the rigor of the English rule as to the domicil of the
husband being the domicil of the wife is not controlling in this
Court, in view of the decisions to which we have previously
referred recognizing the right of the wife, for the fault of the
husband, to acquire a separate domicil.
Barber v.
Barber, 21 How. 582;
Cheever v.
Wilson, 9 Wall. 108;
Atherton v. Atherton,
181 U. S. 155.
And even in Scotland, where residence, as distinguished from
domicil, was deemed to authorize the exercise of jurisdiction to
grant divorces, it was invariably recognized that the presence
within the jurisdiction of both parties to the marriage was
essential to authorize a decree in favor of the complainant.
Wharton, Conf.Laws § 215, p. 447; per Lord Westbury, in
Shaw v.
Gould, L.R. 3 H.L. 88.
As respects the decisions of this Court: we at once treat as
inapposite, and therefore unnecessary to be here specially
reviewed, those holding (a) that, where the domicil of a plaintiff
in a divorce cause is in the state where the suit was brought, and
the defendant appears and defends, as both parties are before the
court, there is power to render a decree of divorce which will be
entitled in other states to recognition under the full faith and
credit clause (
Cheever v. Wilson, supra); (b) that, as
distinguished from legal domicil, mere residence within a
particular state of the plaintiff in a divorce cause brought in a
court of such state is not sufficient to confer jurisdiction upon
such court to dissolve the marriage relation existing between the
plaintiff and a nonresident defendant.
Andrews v. Andrews,
188 U. S. 14;
Streitwolf v. Streitwolf, 181 U.
S. 179;
Bell v. Bell, 181 U.
S. 175. This brings us to again consider
Page 201 U. S. 584
a case heretofore referred to, principally relied upon as
sustaining the contention that the domicil of one party alone is
sufficient to confer jurisdiction upon a judicial tribunal to
render a decree of divorce having extraterritorial effect,
viz., Atherton v. Atherton, 181 U.
S. 155. The decision in that case, however, as we have
previously said, was expressly placed upon the ground of
matrimonial domicil. This is apparent from the following passage,
which we excerpt from the opinion at page
181 U. S.
171:
"This case does not involve the validity of a divorce granted,
on constructive service, by the court of a state in which only one
of the parties ever had a domicil, nor the question to what extent
the good faith of the domicil may be afterwards inquired into. In
this case, the divorce in Kentucky was by the court of the state
which had always been the undoubted domicil of the husband, and
which was the only matrimonial domicil of the husband and wife. The
single question to be decided is the validity of that divorce,
granted after such notice had been given as was required by the
statutes of Kentucky."
The contention therefore that the reasoning of the opinion
demonstrates that the domicil of one of the parties alone was
contemplated as being sufficient to found jurisdiction, but insists
that the case decided a proposition which was excluded in
unmistakable language. But, moreover, it is clear, when the facts
which were involved in the
Atherton case are taken into
view, that the case could not have been decided merely upon the
ground of the domicil of one of the parties, because that
consideration alone would have afforded no solution of the problem
which the case presented. The salient facts were these: the husband
lived in Kentucky, married a citizen of New York, and the married
couple took up their domicil at the home of the husband in
Kentucky, where they continued to reside and where children were
born to them. The wife left the matrimonial domicil and went to New
York. The husband sued her in Kentucky for a divorce. Before
the
Page 201 U. S. 585
Kentucky suit merged into a decree, the wife, having a residence
in New York sufficient under ordinary circumstances to constitute a
domicil in that state, sued the husband in the courts of New York
for a limited divorce. Thus, the two suits, one by the husband
against the wife and the other by the wife against the husband,
were pending in the respective states at the same time. The husband
obtained a decree in the Kentucky suit before the suit of the wife
had been determined, and pleaded such decree in the suit brought by
the wife in New York. The New York court, however, refused to
recognize the Kentucky decree, and the case came here, and this
Court decided that the courts of New York were bound to give effect
to the Kentucky decree by virtue of the full faith and credit
clause. Under these conditions, it is clear that the case could not
have been disposed of on the mere ground of the individual domicil
of the parties, since, upon that hypothesis, even if the efficacy
of the individual domicil had been admitted, no solution would have
been thereby afforded of the problem which would have risen for
decision, that problem being which of the two courts wherein the
conflicting proceedings were pending had the paramount right to
enter a binding decree. Having disposed of the case upon the
principle of matrimonial domicil, it cannot in reason be conceived
that the court intended to express an opinion upon the soundness of
the theory of individual and separate domicil which, isolatedly
considered, was inadequate to dispose of, and was therefore
irrelevant to, the question for decision.
It is contended that an overwhelming preponderance of the
decisions of state courts enforce the doctrine that it is the duty
of the states, by virtue of the full faith and credit clause, to
give within their borders the full effect required by that clause
to decrees of divorce rendered in other states where there was
jurisdiction alone by virtue of the domicil of one of the parties.
Whilst we may not avoid the duty of interpreting for ourselves the
Constitution of the United States, in view of the persuasive force
that would result if an overwhelming
Page 201 U. S. 586
line of state decisions held the asserted doctrine, we come to
consider that subject. To examine in detail the many decisions of
state courts of last resort, most of which are referred to in the
margin, would expand this opinion to undue length. To avoid so
doing, if possible, we propose to more particularly direct our
attention to the cases in state courts which are specially relied
on. In doing so, we shall add cases in several of the states not
particularly counted on in the argument. We shall do this for the
purpose of evolving, if possible, from the state cases thus to be
referred to, some classification typical of all the state
decisions, hence enabling all the cases to which we do not
specially refer to be brought within the appropriate class to which
they pertain, without the necessity of reviewing them in detail. We
shall not confine ourselves to the particular state decisions
relied on, but shall consider such decisions in the light of the
general rule obtaining in the particular state.
Page 201 U. S. 587
The cases specially relied on are
Thompson v. State, 28
Ala. 12;
Harding v. Alden, 9 Me. 140;
Ditson v.
Ditson, 4 R.I. 87;
Burlen v. Shannon, 115 Mass. 438,
and
Felt v. Felt, 59 N.J.Eq. 606, to which we shall add,
for the purposes above stated, cases on the same subject decided in
New York, Ohio, Wisconsin, Indiana, and Missouri.
NEW YORK -- It is not questioned that the courts of New York are
vested by statute with authority to render decrees of divorce where
the plaintiff is domiciled within the state, which shall be
operative in that state, even although the defendant is a
nonresident and is proceeded against by constructive service.
Borden v. Fitch, 15 Johns. 121, and
Bradshaw v.
Heath, 13 Wend. 407, were decided, respectively, in the years
1818 and 1835. These cases, as declared by the Court of Appeals of
New York in
People v. Baker, 76 N.Y. 78, 82, upheld the
principle that a court of another state could not dissolve the
matrimonial relation of a citizen of New York, domiciled in New
York, unless he was actually served with notice within the other
state or voluntarily appeared in the cause. The doctrine that an
action of divorce is one
inter partes was thus clearly
reiterated by Andrews, J., in
Jones v. Jones, 108 N.Y.
415, 424.
"The contract of marriage cannot be annulled by judicial
sanction, any more than any other contract
inter partes,
without jurisdiction of the person of the defendant. The marriage
relation is not a
res within the state of the party
invoking the jurisdiction of a court to dissolve it, so as to
authorize the court to bind the absent party, a citizen of another
jurisdiction, by substituted service or actual notice of the
proceeding given without the jurisdiction of the court where the
proceeding is pending."
That the principle referred to is still enforced by the New York
court is shown by recent cases,
viz., Lynde v. Lynde, 162
N.Y. 405;
Winston v. Winston, 165 N.Y. 553, and the case
at bar. And it is indubitable that, under this doctrine, the
Page 201 U. S. 588
courts of New York have invariably refused, as they have done in
the case at bar, to treat a divorce rendered in another state,
under the circumstances stated, as entitled to be enforced in New
York by virtue of the full faith and credit clause of the
Constitution of the United States, and, indeed, have refused
generally to give effect to such decrees even by state comity.
MASSACHUSETTS --
Barber v. Root, 10 Mass. 260;
Hanover v. Turner, 14 Mass. 227, and
Harteau v.
Harteau, 14 Pick. 181, were decided, respectively, in 1813,
1817, and 1833. In 1835, the Legislature of Massachusetts
incorporated into the statutes of that state, following a section
forbidding the recognition of divorces obtained in another
jurisdiction in fraud of the laws of Massachusetts, a provision
reading as follows:
"In all other cases, a divorce decreed in another state or
country, according to the law of the place, by a court having
jurisdiction of the cause and of both of the parties, shall be
valid and effectual in this state."
And it may be observed that this section, when submitted to the
legislature by the commissioners for revising the Massachusetts
statutes, was accompanied by the following comment (Rept.Comrs.,
pt. II, p. 123):
"This is founded on the rule established by the comity of all
civilized nations, and is proposed merely that no doubt should
arise on a question so interesting and important as this may
sometimes be."
In
Lyon v. Lyon (1854), 2 Gray, 367, the question was
as to the validity in Massachusetts of a divorce decreed in Rhode
Island in favor of one party to a marriage against the other, who
was domiciled in Massachusetts. The court refused to give
extraterritorial effect to the Rhode Island decree. In the opinion
by Chief Justice Shaw, it was declared that the three cases which
we have previously referred to sustained the doctrine, based upon
general principles of law, that a decree of divorce rendered in
another state without jurisdiction of both of the parties possessed
no extraterritorial force.
In
Hood v. Hood (1865), 11 Allen, 196, the controversy
was
Page 201 U. S. 589
this: the parties were married in Massachusetts, and, after a
residence in that state, moved together to Illinois. The wife left
the domicil of the husband in Illinois and returned to
Massachusetts. Thereafter, in Illinois, the husband sued the wife
for a divorce on the ground of her desertion, obtained a decree,
and married again. The case decided in Massachusetts was a suit
brought in that state by the former wife against the former husband
for divorce on the ground of adultery alleged to have been
committed by him with the person whom he had married after the
decree of divorce in Illinois had been rendered. The Illinois
decree was pleaded in bar. The question whether the Illinois decree
should be given extraterritorial effect in Massachusetts depended,
under the rule announced in the previous cases, upon whether both
the husband and wife were parties to the Illinois decree. For the
purpose of the determination of this jurisdictional question, it
was held that it was necessary to ascertain whether the wife was
justified, by the fault of the husband, in leaving him in Illinois
and going back to Massachusetts. It was decided that, if she was
justified in leaving the husband, her legal domicil was in
Massachusetts, and she was not a party to the Illinois decree, and
that, if she was not justified in living separate from the husband,
the ordinary rule being that the domicil of the husband was the
domicil of the wife, she was domiciled in Illinois, and must be
considered as subject to the jurisdiction of the Illinois court.
Applying this legal principle to the facts in the case before it,
the court held that, as there was no evidence showing that the wife
had justifiable cause for leaving her husband, the legal
presumption that the domicil of the husband was the domicil of the
wife prevailed, and that the Illinois decree was entitled to
extraterritorial effect in Massachusetts, and bound the wife,
because rendered by a court having jurisdiction over both
parties.
In
Shaw v. Shaw (1867), 98 Mass. 158, the facts were
these: the parties were married in Massachusetts, lived there, and
left together for the purpose of settling in Colorado.
Page 201 U. S. 590
On the journey at Philadelphia, the wife was forced by the
extreme cruelty of the husband to leave him. She returned to
Massachusetts, while he went on to Colorado. Subsequently the wife
sued in Massachusetts for a divorce from bed and board. The husband
was brought in by substituted service and defaulted. The court, in
the most explicit terms, recognized that a decree of divorce, to
have extraterritorial effect, must be rendered with jurisdiction
over both parties. It said (p. 159):
"For the purposes of divorce, the general rule of jurisprudence
is that a divorce granted in the place of the domicil of both
parties, and there valid, is good everywhere."
The court came then to consider whether it could render a decree
in Massachusetts in favor of the wife. This depended upon a statute
of Massachusetts which authorized the granting of a divorce where
the cause for divorce occurred while the parties had lived together
as husband and wife in Massachusetts, and where one of them lived
in that state when the cause for divorce occurred. It was held
that, as at the time of the commission of the cruelty in
Philadelphia charged against the husband the domicil of the parties
in Massachusetts had not been lost, and as by that cruelty the wife
was justified in returning to Massachusetts, and the subsequent
acquisition of a new domicil by the husband in Colorado did not
make such domicil that of the wife, there was jurisdiction, and the
divorce was granted.
Hood v. Hood (1872), 110 Mass. 463, was an attempt
again to assail the validity of the Illinois decree of divorce
which had been adjudged valid in 11 Allen, 196, because it was
found that both the husband and wife had been parties to the
decree. The Massachusetts decree so holding was therefore held to
be
res judicata as to all persons, and to foreclose
further inquiry into the validity of the Illinois decree of
divorce.
In
Burlen v. Shannon (1874), 115 Mass. 438, the facts
leading up to the controversy and those involved therein were as
follows: Shannon and his wife lived together in Massachusetts,
Page 201 U. S. 591
where she left him. Without stopping to refer to prior legal
controversies which arose between Shannon and his wife and between
Shannon and Mrs. Burlen, which are irrelevant to be considered, it
suffices to say that Mrs. Burlen sued Shannon in 1850 to hold him
liable for necessary supplies furnished to the wife. Shannon
resisted on the ground that the wife had been living apart from him
without his fault or consent, and this defense was maintained. 3
Gray 387. Shannon went to Indiana in 1855 and took up his domicil
in that state, where, in 1856, he obtained a decree of divorce upon
constructive service. Subsequently, in Massachusetts, Mrs. Burlen
again sued Shannon for necessaries furnished to the wife between
February 22, 1860, and February 7, 1866. He pleaded the Indiana
divorce, and the validity of the divorce was assailed by Mrs.
Burlen on the ground that the wife had not been a party to the
divorce cause, and therefore the Indiana decree had not
extraterritorial effect in Massachusetts. The court in effect,
after reiterating the previous rulings and referring to the statute
concerning the necessity for the presence of both parties within
the jurisdiction where a decree for divorce of another state was
sought to be given effect in Massachusetts, also reiterated the
previous ruling that the wife might acquire a separate domicil from
the husband if she lived separate from him for justifiable cause.
The court was brought, therefore, to consider whether Mr. and Mrs.
Shannon were both parties to the Indiana decree on the ground that
the domicil of the husband was the domicil of the wife. The
solution of this question depended as it had depended in
Hood
v. Hood, 11 Allen 196, upon whether the wife was absent from
the husband because of his fault. On this subject it was decided
that the previous judgment in favor of Shannon and against Mrs.
Burlen in the prior action between the parties had conclusively
determined between them that Mrs. Shannon was absent from her
husband without his fault or consent, and therefore, under the
legal presumption that the domicil of the husband was the domicil
of the wife, both
Page 201 U. S. 592
the husband and wife were parties to the Indiana decree and it
was not subject to attack in Massachusetts. To cite, as has
sometimes been done, the language of the opinion of the court
referring to the previous judgment in the earlier action between
Mrs. Burlen and Shannon as if that language referred to the Indiana
decree of divorce, leading to the implication that that decree was
held to be conclusive even if only one of the parties was domiciled
in the state where the decree was rendered not only is a plain
misconception, but is equivalent to asserting that the
Massachusetts court had overruled its previous decisions and
disregarded the spirit, if not the letter, of the state statute
without the slightest intimation to that effect.
In
Cummington v. Belchertown, 149 Mass. 223, the facts
were these: the parties to a marriage celebrated in Massachusetts
lived together in that state until the wife was taken to a
Massachusetts asylum for the insane, when the husband abandoned
her, acquired a domicil in New York, there brought suit on the
ground of fraud for the annulment of the marriage, and obtained a
decree. The wife was only constructively served with process, did
not appear, and was not represented. The Massachusetts court held,
upon the authority of the
Blackinton case, 141 Mass. 432,
to which we have already referred, that if the decree was to be
recognized in Massachusetts, it could only be on grounds of comity.
And in concluding its opinion, the court said:
"Upon the ground, then, that the decree of the New York court
attempts to annul a marriage in Massachusetts between Massachusetts
citizens, and thus affect the legal status of the woman, who has
remained domiciled in Massachusetts, and has never been within the
jurisdiction of the New York court, and deprive her of the rights
acquired by her marriage, and especially because it declares the
marriage void for a reason on account of which by the Massachusetts
law it cannot be avoided, we are of opinion that it should not be
enforced here, and that
Page 201 U. S. 593
no principle of interstate comity requires that we should give
it effect."
True it is the court reserved the question as to what effect
might be given to a divorce if granted by a New York court under
circumstances such as existed in that case. But, as a suit for a
declaration of nullity and one for divorce are both but modes for
determining judicially the status of the parties, it must in reason
follow if jurisdiction over both is a prerequisite in the one
class, it is of necessity also essential in the other.
MAINE -- In
Harding v. Alden (1832), 9 Me. 140, the
facts were these: while living together in Maine, a husband
deserted his wife. He went to North Carolina, where he pretended to
marry, and lived there with another woman. In the meantime, the
wife whom he had deserted took up her residence in Rhode Island,
where she sued for a divorce on the ground of the adultery
committed by the husband in North Carolina. The husband, who was
notified in North Carolina, did not appear in the Rhode Island
divorce cause. A decree of divorce was granted, and the wife then
remarried. The first husband, during the coverture, owned and
alienated real estate in Maine, and a statute of that state
provided that, where a divorce was decreed for adultery by the
husband, dower might be assigned to the divorced wife in the same
manner as if the husband were dead. The divorced wife brought an
action of dower in a court in Maine. The Rhode Island decree was
held to possess validity in Maine and the statute relating to dower
was decided not to be limited to divorces decreed within the State
of Maine. Considering the opinion in its entirety, it is plain that
the Rhode Island divorce was given recognition from considerations
of right and justice and upon the ground of state comity. Thus, the
court called attention to the fact that adultery was a cause for
divorce in both states and that divorces were granted in Maine
against nonresidents, and it was observed that "there would be
great inconvenience in holding" that divorces ought not to be
recognized in other states when granted in the state where the
injured party
Page 201 U. S. 594
resided, against one who had established his domicil in another
state and there committed adultery.
True it is, in the course of the opinion, reasoning was employed
tending to show that the Rhode Island court might be considered to
have had jurisdiction in the complete sense, and it was intimated
that the full faith and credit clause might have application, but
the operation of the Rhode Island decree in Maine was, by the
decree of the Maine court, expressly limited to the dissolution of
the marriage (p. 151). How far removed this was from giving to the
Rhode Island decree the benefit of the full faith and credit clause
will, we think, be made clear by what follows.
Harding v. Alden was decided at the July term, 1832.
Less than two years afterward, on March 5, 1834 (1 Maine Laws, c.
71, § 4), the statute of Maine regulating divorces was supplemented
by various provisions, one such being the following:
"Sec. 2. Be it further enacted, That in all cases where one
party has been or shall be divorced from the bonds of matrimony,
the court granting the same may, upon application therefor, grant
to the other party a like divorce, on such terms and conditions as
the said court in the exercise of a sound discretion may judge
reasonable."
This provision was carried into the Revised Statutes of 1841, c.
89, § 2, and although repealed in 1850 in a general revision of the
divorce laws, it was held that the legislature did not intend to
deprive the courts of Maine of the power to entertain a suit for
divorce brought by a person from whom the other party to a marriage
had already been divorced, and that the courts of Maine still
possessed power to exercise jurisdiction over such suits.
Stilphen v. Stilphen, 58 Me. 508. In the cited case,
although a husband had already obtained an absolute divorce, a like
divorce was granted to the wife, and the court allowed to her
certain articles of personal property and the sum of $500. In
overruling exceptions to the decree, the appellate court adopted
the theory that the second decree in nowise impugned the first, and
was "important only as enabling the court to make
Page 201 U. S. 595
such ancillary decrees concerning the property as justice may
seem to require."
P. 517. In the course of the opinion, the court said (p.
516):
"There is no class of cases in which the court is so liable to
be imposed upon, and a decision obtained contrary to the truth, as
ex parte divorce suits. The notice is often imperfect, so
that the confession of guilt implied in the default is deceptive.
And it is well known that witnesses testifying in the presence of
one of the parties and in the absence of the other will so alter
and magnify the faults of the absent and suppress everything that
makes against the party present that it is impossible to tell where
the truth and real merits of the controversy are. When both parties
are present, each is sure to put the other in the wrong, and
a
fortiori is this true when one of the parties is permitted to
testify in the absence of the other, as is now the case in divorce
suits. We repeat, therefore, that there is no class of cases in
which the court is so liable to be imposed upon, and it seems to us
of the utmost importance that the court should be possessed of the
power in some form to revise their decisions in this class of
cases; otherwise, the grossest injustice is liable to be done."
In the light of this decision, it cannot be assumed that the
courts of Maine would give to a citizen of that state against whom
a divorce had been obtained in a foreign jurisdiction, upon
constructive service a less degree of relief than they afford as to
a decree rendered in Maine, both parties being present and bound by
the decree.
RHODE ISLAND --
Ditson v. Ditson (1856), 4 R.I. 87, was
a suit for divorce on the grounds of desertion, extreme cruelty,
and nonsupport, brought by a wife domiciled in Rhode Island against
the husband, who had never resided in Rhode Island, and whose
whereabouts was unknown. The question was whether the Rhode Island
court ought to exercise jurisdiction. The opinion was mainly
devoted to refuting the reasoning employed by Chief Justice Shaw in
his opinion in the case of
Lyon v. Lyon, 2 Gray, 367, in
which case, as we have previously
Page 201 U. S. 596
shown, the Massachusetts court refused to give effect to a Rhode
Island decree of divorce where both parties were not within the
jurisdiction. The Rhode Island court (in the
Ditson case)
in effect declared that it would not exercise jurisdiction to grant
a divorce if it considered that a decree rendered by it would not
be entitled to extraterritorial effect because of a lack of actual
jurisdiction over the defendant. The court, however, proceeded to
reason that a suit for divorce was in effect a proceeding
in
rem, and that jurisdiction over one of the parties to a suit
for the dissolution of the marriage tie drew to the court
jurisdiction of the other party, and thereby gave full and complete
jurisdiction over the status of both parties, and upon that
hypothesis decided that it would exercise jurisdiction, and that
its decree dissolving the marriage would be entitled to the benefit
of the full faith and credit clause of the Constitution and have
binding efficacy in every other state.
NEW JERSEY -- Whilst the courts of New Jersey have exercised the
power to grant a divorce from a nonresident defendant upon
constructive service, those courts have from the beginning applied
to similar decrees of divorce granted in other states, when sought
to be enforced in New Jersey against citizens of that state, a rule
like the one prevailing in New York -- that is, they decline to
enforce them even upon the principles of comity.
Doughty v.
Doughty, 28 N.J.Eq. 581, 586;
Flower v. Flower, 42
N.J.Eq. 152. Recently, however, it has been decided, Felt v. Felt,
59 N.J.Eq. 606, that, where a decree of divorce was rendered in
another state, and the complainant alone was subject to the
jurisdiction of the court, but it was shown that the defendant had
been personally served outside of the jurisdiction with notice of
the pendency of the divorce proceeding, and was afforded reasonable
opportunity to make defense, and did not avail of the opportunity,
effect would be given to such decree in New Jersey, upon principles
of comity, provided that the ground upon which the decree rested
was one which the public policy of New Jersey
Page 201 U. S. 597
recognized as a sufficient cause for divorce. In
Wallace v.
Wallace, 62 N.J.Eq. 509, the subject is quite fully
reviewed.
OHIO -- In
Cooper v. Cooper (1836), 7 Ohio 594, without
citation of authority, a divorce granted in Indiana, from a
resident of Ohio, upon constructive service, was held to bar an
application for divorce and alimony in Ohio. In
Mansfield v.
McIntyre (1840), 10 Ohio 27, despite a divorce obtained in
Kentucky by a husband, upon constructive service, the divorced wife
was regarded in Ohio as the widow of her former husband after his
decease, and as such widow, entitled to dower.
In
Cox v. Cox, 19 Ohio St. 502, decided at the December
term, 1869, the facts were these: the husband deserted the wife in
Ohio, went to Indiana, and there obtained a divorce, upon
constructive service. The wife remained in Ohio, and three years
after the granting of the Indiana divorce to the husband she sued
him for divorce and for alimony, alleging abandonment and gross
neglect of duty. The trial court granted a divorce and alimony. The
husband appealed, but as such an appeal, under the statutes of
Ohio, did not affect the decree as to the divorce, the district
court considered only the question of alimony, and rendered a new
decree for alimony against the defendant. The case was then taken
to the supreme court of the state. In that court, attention was
called to the fact that, under the statutes of Ohio and the
decisions of its courts, jurisdiction might be exercised over
nonresidents in divorce cases, and reference was made to various
authorities as tending to show that public policy required the
recognition of the validity of such decrees in other states as to
the dissolution of the marriage. After stating the facts, and
observing that the wife was entitled under the laws of Ohio to
either divorce or alimony or both, at her election, and alluding to
the Indiana decree, the court said (p. 512):
"The question, therefore, is whether the
ex parte
decree can be made available not merely to effect a dissolution of
the marriage, but to defeat the right of the petitioner to the
alimony
Page 201 U. S. 598
which the statute, upon the facts as they exist in regard to the
husband's desertion, intended to provide for her."
"We think the decree ought not to have such effect."
"In arriving at this conclusion, we make no distinction between
a decree rendered under the circumstances of this case in a
foreign, and one rendered in a domestic, forum."
"In either case, to give to a decree thus obtained the effect
claimed for it would be to allow it to work a fraud upon the
pecuniary rights of the wife. Such a result, in our opinion, is
rendered necessary by no principle of comity or public policy --
the only grounds upon which
ex parte decrees of divorce
are authorized and supported."
"It is not essential to the allowance of alimony that the
marriage relation should subsist up to the time it is allowed. On
appeal, alimony may be decreed by the district court
notwithstanding the subsisting divorce pronounced by the court of
common pleas. It is true that the statute speaks of the allowance
as being made to the wife. But the term 'wife' may be regarded as
used to designate the person, and not the actual existing relation,
or the petitioner may still be regarded as holding the relation of
wife for the purpose of enforcing her claim to alimony."
The following cases were cited by the court as sustaining the
right of the wife to maintain an independent proceeding for
alimony, even after the husband had obtained a divorce:
Richardson v. Wilson, 8 Yerg. 67;
Crane v.
Meginnis, 1 Gill & J. 464, and
Shotwell v.
Shotwell, 1 Sm. & M.Ch. 51.
In
Doerr v. Forsythe (1893), 50 Ohio St. 726, an
Indiana divorce granted to a husband upon constructive service was
held not to bar the right of the wife to dower in lands in Ohio
owned during coverture by the husband.
ALABAMA -- In
Thompson v. State (1856), 28 Ala. 12, the
facts were these: Thompson deserted his family in Mississippi, went
to Arkansas, and there obtained a divorce upon constructive
service. The wife returned to her father's home in Alabama, and,
after the divorce, the husband also went to
Page 201 U. S. 599
Alabama, where he again married. He was prosecuted for and
convicted of bigamy. The conviction was set aside, however, upon
the ground that the guilt or innocence of the accused depended upon
the question as to whether he had a
bona fide domicil in
Arkansas during the pendency of the proceedings for divorce.
Harding v. Alden, 9 Me. 140, was cited as authority.
In a subsequent case, however,
Turner v. Turner (1870),
44 Ala. 437, the Supreme Court of Alabama strictly limited, as
against a citizen of Alabama, the effect of divorce rendered in
another state upon constructive service. The parties were married
in Alabama, where the husband deserted the wife, and located in
Indiana, where he obtained a divorce upon constructive service. The
wife remained in Alabama, and after the granting of the divorce to
the husband, she sued him in Alabama for a divorce and alimony. The
husband pleaded the Indiana decree in bar. The trial court,
however, held that the wife was entitled to maintain her suit, and
entered a decree for divorce and alimony. In affirming the decree,
the Supreme Court of Alabama, upon the authority of
Thompson v.
State, supra, said that the decree of divorce obtained by the
husband in Indiana might protect him against prosecution for bigamy
should he marry again in Alabama. Referring to that decree, it
further said (p. 450):
"But, without stopping to inquire whether it was obtained by him
by fraud, and therefore is vicious on that account or not, it
certainly cannot affect the rights of the complainant, except her
right in the husband as husband. If it is valid, it unmarries him
and sets him free from his marital vows to her. He is no longer the
complainant's husband. But it does not settle her right to alimony;
it does not settle her right to dower in his lands, and her
statutory right to distribution of his property in this state in
the event she should survive him, nor any other interest of a
pecuniary character she may have against him. . . . It is the duty
of the state to protect its own citizens within its own borders.
This is the
Page 201 U. S. 600
natural compensation for allegiance. This high duty extends to
all the pecuniary rights of the citizens, as well as to the rights
of security of person. . . . No obligation of comity is paramount
to this duty. Without a constant and effective exertion of it,
citizenship would become a farce. . . . The wife is as much the
citizen of the state as the husband, and is entitled to the
protection of its laws to the same extent, so long as she remains
within its jurisdiction. It would be a scandal to justice to
imperil her, and sacrifice her most important and cherished rights
upon a mere technicality -- a technicality that often contradicts
the truth. When her protection requires it, it would be cruelly
unjust for the state of her actual residence and domicil to
repudiate its own right of jurisdiction to give her aid. I
therefore think that the better opinion is that she has the right
to file her bill here, and to all the relief that the court could
give her, notwithstanding her husband might not be domiciled in
this state at the commencement and during the whole pendency of her
litigation with him. . . ."
"Then, if the state courts have competent jurisdiction in such a
case, as undoubtedly they have, they may go on and exercise that
jurisdiction in the manner and to the extent prescribed by their
own laws."
"Under the laws of this state, by the contract and consummation
of a marriage, the wife, if she has no separate estate, becomes
entitled to dower in the husband's lands, and a certain
distributive interest in his personal estate, if she survives him,
and to temporary and permanent alimony out of his estate, upon a
separation by divorce in her favor. These are right that she cannot
legally be deprived of without her consent or her fault. . . . If
this were not so, then these important statutory provisions in
favor of the wife would be repealed or rendered null by a foreign
divorce, of which she had no notice and no knowledge, during its
whole progress through the forms of a foreign court. To sue in her
own domicil is necessary for the protection of the wife. It
therefore
Page 201 U. S. 601
overrides the technical rule that the husband's domicil is also
the domicil of the wife. . . . Here, the testimony shows that the
wife has no separate estate. The witnesses for the defendants say
when she was married she 'brought nothing with her.' It also
appears that, during her connection with the defendant, Matthew
Turner, as his wife, she was a chaste, industrious, economical,
faithful, useful, and obedient wife, and that the husband's
property is very considerable, worth possibly not less than
$100,000. It is also shown that his three children by a former
marriage are already ready sufficiently provided for."
"Under such a state of facts, the sum of $30,000 was not an
unreasonable sum for permanent alimony to be allowed to the wife,
not the sum of $800 too large for temporary alimony."
INDIANA -- In
Tolen v. Tolen (1831), 2 Blackf. 407, the
facts were these: a wife, on being deserted in Kentucky, removed to
and became domiciled in Indiana, and after a residence there of
five years, sued for a divorce from the nonresident husband. In an
opinion of great length, the court considered the question of its
power to grant a divorce which would be valid in Indiana, and
decided it had such power, but expressly reserved passing on the
question whether the decree would have extraterritorial force.
In
Hood v. State (1877), 56 Ind. 263, 271, it was
declared that, as an
ex parte divorce in favor of one
domiciled within the jurisdiction of a state, and against a
nonresident, although founded upon constructive service, was valid
as to the plaintiff, "public policy demands that it should be held
valid as to both parties."
In
Hilbish v. Hattle (1896), 145 Ind. 59, certain
sections of the Indiana Revised Statutes, wherein it was provided
that the divorce of one party to a marriage should dissolve the
contract as to both, and that a divorce decreed in another state by
a court having jurisdiction of the cause should have full effect in
Indiana, were held to be applicable to a decree of
Page 201 U. S. 602
divorce granted in another state, in favor of a husband, upon
constructive service, and the same effect was given to the decree,
as to the rights of the wife in the property of the husband in
Indiana, as if the divorce had been rendered in Indiana.
MISSOURI -- In
Gould v. Crow, 57 Mo. 200, a decree of
divorce regularly obtained by a husband in Indiana, on an order of
publication, without personal service, was held to operate as a
divorce in favor of the husband in Missouri, so as to prevent the
wife from claiming her dower in lands in Missouri owned by the
husband.
Harding v. Alden, supra, was relied upon as
authority. A statute of Missouri barring the claim of a wife for
dower after divorce granted by reason of her fault was held to
apply to all divorces, whether obtained in Missouri or in other
states and whether obtained on personal service or by order of
publication. The doctrine of
Gould v. Crow was reaffirmed
and applied in
Anthony v. Rice, 110 Mo. 233.
WISCONSIN -- In
Shafer v. Bushnell (1869), 24 Wis. 372,
an
ex parte divorce granted a wife in Minnesota upon
constructive service of the defendant, a citizen of Minnesota, was
held upon the grounds of comity to be conclusive in Wisconsin in
respect to the status or domestic and social condition of the wife.
The decree was held to bar an action for criminal intercourse
against the person whom the complainant in the divorce suit married
after the granting of the divorce.
In
Cook v. Cook (1882), 56 Wis.195, however, in an
elaborate opinion, an
ex parte divorce obtained in
Michigan upon constructive service merely, by a husband who had
deserted his wife in Wisconsin, was held not to affect the status
of the wife in Wisconsin nor to bar her from suing in Wisconsin for
divorce, alimony, allowance, and a division of the property of such
husband situated within Wisconsin.
Deducing the law of the several states from the rulings of their
courts of last resort which we have just reviewed, and ignoring
mere minor differences, the law of such states is embraced within
one or the other of the following headings:
Page 201 U. S. 603
a. states where the power to decree a divorce is
recognized, based upon the mere domicil of the plaintiff, although
the decree when rendered will be but operative within the borders
of the state, wholly irrespective of any force which may be given
such decree in other states. Under this heading, all of the states
are embraced with the possible exception of Rhode Island.
b. states which decline, even upon principles of
comity, to recognize and enforce as to their own citizens, within
their own borders, decrees of divorce rendered in other states,
when the court rendering the same had jurisdiction over only one of
the parties. Under this heading are embraced Massachusetts, New
Jersey (with the qualification made by the decision in 59 N.J.Eq.
606), and New York.
c. States which, whilst giving some effect to decrees
of divorce rendered against its citizens in other states where the
court had jurisdiction of the plaintiff alone, either place the
effect given to such decrees upon the principle of state comity
alone, or make such limitations upon the effect given to such
decree as indubitably establishes that the recognition given is a
result merely of state comity. As the greater includes the less,
this class, of course, embraces the cases under the previous
heading. It also includes the States of Alabama, Maine, Ohio, and
Wisconsin.
d. Cases which, although not actually so deciding, yet
lend themselves to the view that
ex parte decrees of
divorce rendered in other states would receive recognition by
virtue of the due faith and credit clause. And this class embraces
Missouri and Rhode Island.
Coming to consider, for the purpose of classification, the
decided cases in other states than those previously reviewed which
have been called to our attention, the law of such states may be
said to come under one or the other of the foregoing headings, as
follows:
Proposition a embraces the law of all the states, since in the
decision of no state is there an intimation expressing the
exception
Page 201 U. S. 604
found in the Rhode Island case which caused us to exclude that
state from this classification.
Under proposition
b comes the law of the States of
Pennsylvania, Vermont, and South Carolina. A line of decisions of
the State of North Carolina would also cause us to embrace the law
of that state within this classification, but for a doubt
engendered in our minds as to the effect of the law of North
Carolina on the subject, resulting from suggestions made by the
North Carolina court in the opinion in
Bidwell v. Bidwell,
139 N.C. 402.
Proposition
c embraces the law of Kansas, Louisiana,
Maryland, Michigan, Minnesota, Nebraska, and New Hampshire. And it
is pertinent here to remark that in Michigan, 3 Comp.Laws Michigan
(1897) par. 8617, c. 232, § 2, the obtaining of a divorce in
another state from a citizen of Michigan is made cause for the
granting of a divorce in Michigan to its citizen. A like provision
is also in the statutes of Florida. Rev.Stat.Florida (1902), sec.
1480.
Under proposition
d, we embrace the remaining states,
although as to several the classification may admit of doubt,
viz., California, Illinois, Iowa, Kentucky, and
Tennessee.
It indubitably, therefore, follows from the special review we
have made of cases in certain states, and the classification just
made of the remaining state cases which were called to our
attention and which we have previously cited in the margin, that
the contention is without foundation, that such cases establish by
an overwhelming preponderance that, by the law of the several
states, decrees of divorce obtained in a state with jurisdiction
alone of the plaintiff are, in virtue of the full faith and credit
clause of the Constitution, entitled to be enforced in another
state as against citizens of such state. Indeed, the analysis and
classification which we have made serves conclusively to
demonstrate that the limited recognition which is given in most of
the states to such
ex parte decrees of divorce rendered in
other states is wholly inconsistent with the theory that such
limited recognition is based
Page 201 U. S. 605
upon the operation of the full faith and credit clause of the
Constitution of the United States, and, on the contrary, is
consistent only with the conception that such limited recognition
as is given is based upon state comity. No clearer demonstration
can be made of the accuracy of this statement than the obvious
consequence that, if the full faith and credit clause were now to
be held applicable to the enforcement in the states generally of
decrees of divorce of the character of the one here involved, it
would follow that the law of nearly all of the states would be
overthrown, and thus it would come to pass that the decisions which
were relied upon as establishing that the due faith and credit
clause applies to such decrees would be overruled by the adoption
of the proposition which it is insisted those decisions maintain.
The only escape from this conclusion would be to say that the law
of the states as shown by the decisions in question would remain
unaffected by the ruling of the full faith and credit clause,
because not repugnant to that clause. This would be, however, but
to assert that the full faith and credit clause required not that
full faith and credit be given in one state to the decrees of
another state, but that only a limited and restricted enforcement
of a decree of one state in another would fulfill the requirements
of that provision of the Constitution. To so decide would be to
destroy the true import of the full faith and credit clause, as
pointed out in the outset of this opinion. Thus, in its ultimate
aspect, the proposition relied upon reduces itself to this --
either that the settled law of most of the states of the Union as
to divorce decrees rendered in one state, where the court rendering
the decree had jurisdiction only of the plaintiff, must be held to
be invalid or that an important provision of the Constitution of
the United States must be shorn of its rightful meaning.
Without questioning the power of the State of Connecticut to
enforce within its own borders the decree of divorce which is here
in issue, and without intimating a doubt as to the power of the
State of New York to give to a decree of that character
Page 201 U. S. 606
rendered in Connecticut, within the borders of the State of New
York and as to its own citizens, such efficacy as it may be
entitled to in view of the public policy of that state, we hold
that the decree of the court of Connecticut rendered under the
circumstances stated was not entitled to obligatory enforcement in
the State of New York by virtue of the full faith and credit
clause. It therefore follows that the court below did not violate
the full faith and credit clause of the Constitution in refusing to
admit the Connecticut decree in evidence, and its judgment is
therefore
Affirmed.
* Cases relating to the validity and extraterritorial effect of
a decree of divorce rendered upon constructive notice:
Turner v. Turner, 44 Ala. 437;
In re James, 99
Cal. 374;
Knowlton v. Knowlton, 155 Ill. 158;
Dunham
v. Dunham, 162 Ill. 589;
Field v. Field, 215 Ill.
496;
Hood v. State, 56 Ind. 263, 270;
Hilbish v.
Hattle, 145 Ind. 59;
Kline v. Kline, 57 Iowa 386;
Van Orsdal v. Van Orsdal, 67 Ia. 35;
Chapman v.
Chapman, 48 Kan. 636;
Rodgers v. Rodgers, 56 Kan.
483;
Maguire v. Maguire, 7 Dana 181;
Hawkins v.
Ragsdale, 80 Ky. 353;
Edwards v. Green, 9 La.Ann.
317;
Smith v. Smith, 43 La.Ann. 1140;
Butler v.
Washington, 45 La Ann. 279;
Harding v. Alden, 9 Me.
140;
Stilphen v. Stilphen, 58 Me. 508;
Stilphen v.
Houdlette, 60 Me. 447;
Garner v. Garner, 56 Md. 127;
Lyon v. Lyon, 2 Gray 367;
Wright v. Wright, 24
Mich. 180;
Van Inwagen v. Van Inwagen, 86 Mich. 333;
Thurston v. Thurston, 58 Minn. 279;
Gould v.
Crow, 57 Mo. 200;
Anthony v. Rice, 110 Mo. 233;
Smith v. Smith, 19 Neb. 706;
Leith v. Leith, 39
N.H. 20;
Doughty v. Doughty, 28 N.J.Eq. 581;
Flower v.
Flower, 42 N.J.Eq. 152;
Felt v. Felt, 59 N.J.Eq. 606;
Wallace v. Wallace, 62 N.J.Eq. 509;
Lynde v.
Lynde, 162 N.Y. 405;
Winston v. Winston, 165 N.Y.
553;
Irby v. Wilson, 21 N.C. 568;
Harris v.
Harris, 115 N.C. 587;
Bidwell v. Bidwell, 139 N.C.
402;
Cox v. Cox, 19 Ohio St. 502;
Doerr v.
Forsythe, 50 Ohio St. 726;
Colvin v. Reed, 55 Pa.
375;
Reel v. Elder, 62 Pa. 308;
Ditson v. Ditson,
4 R.I. 87;
McCreery v. Davis, 44 S.C.195;
Thoms v.
King, 95 Tenn. 60;
Prosser v. Warner, 47 Vt. 667,
673;
Cook v. Cook, 56 Wis.195.
MR. JUSTICE BROWN, with whom were MR. JUSTICE HARLAN, MR.
JUSTICE BREWER, and MR. JUSTICE HOLMES, dissenting:
Marriage between these parties was solemnized June 4, 1868. They
separated the same day, without a consummation, and have never
lived together since. No matrimonial domicil was ever established
in New York or elsewhere. Defendant left New York soon after the
wedding, drifted about the country for several years, and finally
settled in Connecticut in 1877; remained there twelve years, during
which time, and in 1881, he obtained a divorce in the Superior
Court of Litchfield County, which he now sets up in defense of this
action.
Plaintiff took no steps for twenty-six years to obtain legal
separation or maintenance, when, in July, 1894, she applied to the
Superior Court of the State of New York for a summons by
publication. The defendant did not appear, and a decree was
rendered against him by default, separating the parties and
granting alimony of $1,500 a year. This decree appears to have been
abortive, so far as respects alimony at least, probably for lack of
personal service on the defendant. Meantime, and in 1891, defendant
had inherited a considerable property from his father.
This action was begun by a summons dated June 3, 1899,
thirty-one years after the marriage; was served upon the
defendant,
Page 201 U. S. 607
who answered December 18, 1899, setting up, amongst other
things, the decree of the Superior Court of Litchfield County
dissolving the marriage, the validity of which presents the only
federal question in this case.
1. This decree is attacked upon the ground that the Connecticut
court acted without jurisdiction of the parties lawfully obtained.
The record in that case shows that notice of the pendency of the
petition was ordered to be published in a Litchfield paper, and
also that a copy of the petition be sent to the respondent by mail,
postage paid, at Tarrytown, New York. While there is no affidavit
of the publication of the notice, there is a recital in the decree
"that said complaint and writ have been duly served upon the
defendant pursuant to an order of notice made thereon by the clerk
of this Court." This is sufficient
prima facie evidence of
the publication to entitle the record to be received.
Applegate
v. Lexington &c. Mining Co., 117 U.
S. 255,
117 U. S. 268,
wherein it was said by the court that,
"while it must be conceded that, in order to give the court
jurisdiction over the persons of the defendants, all the steps
pointed out by the statute to effect constructive service on
nonresidents were necessary, yet it does not follow that the
evidence that the steps were taken must appear in the record
unless, indeed, the statute, expressly or by implication, requires
it. . . . Therefore every presumption not inconsistent with the
record is to be indulged in in favor of its jurisdiction. . . . It
is to be presumed that the court, before making its decree, took
care to see that its order for constructive service, on which its
right to make the decree depended, had been obeyed."
As the record was rejected for reasons appearing only upon its
face, it is unnecessary to decide where the recitals in the decree
can be contradicted. Possibly the New York court might have
assailed its validity by showing that, notwithstanding the recitals
in the record, the court acquired no jurisdiction of the defendant
by failure to comply with the order of the court with reference to
the publication of notice in a newspaper,
Page 201 U. S. 608
or in sending a copy of the petition and complaint to the
defendant by mail at Tarrytown, New York, the last known place of
residence. The fact that the referee refused to admit the record,
even as
prima facie evidence, foreclosed any defense
founded upon the actual failure to obtain jurisdiction over the
defendant.
There is no doubt of the proposition that a decree of divorce
may be lawfully obtained at the matrimonial domicil,
notwithstanding that the defendant may have taken up his or her
residence separate from the other party in another state, providing
that the law of the domicil with respect to the personal service or
publication be scrupulously observed.
Atherton v.
Atherton, 181 U. S. 155.
Doubtless the jurisdiction of the court granting the divorce may
be inquired into, and if it appear that the plaintiff had not
acquired a
bona fide domicil in that state at the time of
instituting proceedings, the decree is open to a collateral attack,
Bell v. Bell, 181 U. S. 175, and
a recital in the proceedings of a fact necessary to show
jurisdiction may be contradicted.
Thompson
v. Whitman, 18 Wall. 457;
Streitwolf v.
Streitwolf, 181 U. S. 179;
Andrews v. Andrews, 188 U. S. 14.
Subject to these conditions, each state has the right to
regulate the marital status of its citizens, at least so far as to
determine in what manner and by whom marriages may be solemnized,
what shall be deemed the age of consent, what obligations are
assumed, what property rights are created, for what causes divorces
shall be granted, for what length of time the domicil of plaintiff
shall have been acquired prior to the institution of the
proceedings, and in what manner notice shall be given to the
defendant. Nor is the power of the legislature in this connection
ousted by the fact that the other party to the contract resides in
another state, provided that in case of proceedings adverse to such
party, he or she shall be given such notice as due process of law
requires. If such proceedings be
in rem or
quasi in
rem, notice by publication is ordinarily deemed sufficient.
But in case of actions
in personam
Page 201 U. S. 609
for the recovery of damages, personal service within the
jurisdiction is vital to the proceedings.
Pennoyer v.
Neff, 95 U. S. 714;
Huling v. Kaw Valley Railway and Improvement Co.,
130 U. S. 559.
By the laws of Connecticut of 1878, chap. 71, p. 305, exclusive
jurisdiction is given to the superior courts to grant divorces for
several causes, among which are "willful desertion for three years
with total neglect of duty," with a further provision (Rev.Stat.
sec. 4555) that plaintiff shall have continuously resided in the
state three years next before the date of the complaint, with
certain exceptions not material to be noticed. A further provision,
§ 4553, that,
"where the adverse party resides out of, or is absent from, the
state, or the whereabouts of the adverse party is unknown to the
plaintiff, any judge or clerk of the Supreme Court of Errors, or of
the superior court, or any county commissioner, may make such order
of notice as he may deem reasonable, and such notice having been
given and duly proved to the court, it may hear such complaint; if
it finds that the defendant has actually received notice that the
complaint is pending, and if it shall not appear that the defendant
has had such notice, the court may hear such case, or if it see
cause, order such further notice to be given as it may deem
reasonable, and continue the complaint until the order is complied
with."
The complaint alleged a willful desertion of the plaintiff for
more than three years, and the court found this to be the fact.
2. The case turns upon the question whether the Superior Court
of Litchfield County gained jurisdiction by a residence of the
plaintiff within the state for more than three years. The testimony
also showed that the defendant had acquired a separate domicil in
New York, and had been living there for about thirteen years.
In discussing this question, two propositions may be admitted at
once, and discarded as having no relevancy to the case:
1. That a judgment for damages in an action
in personam
is valid only when personal service has been made upon the
Page 201 U. S. 610
defendant within the jurisdiction of the court rendering the
judgment. This disposes at once of the cases of
Pennoyer v.
Neff, supra, and of
Mississippi &c. R. Co. v.
Ward, 2 Black 485, where an Iowa court had
undertaken to abate a nuisance on the Illinois side of the
Mississippi River, and of
Delaware &c. R. Co. v.
Pennsylvania, 198 U. S. 342,
where a state had attempted to tax property having a permanent
situs in another state.
2. That the courts of one state may not grant a divorce against
an absent defendant to any person who has not acquired a
bona
fide domicil in that state. The same rule applies if he has
removed thither solely for the purpose of acquiring a domicil and
obtaining a divorce for a cause which would have been insufficient
in the state from which he removed.
Andrews v. Andrews,
188 U. S. 14.
The jurisdiction of the Connecticut court in this case is shown
not by the facts as they appear in this case, but from the record
in that case, and primarily from the petition, which, under the
practice in that state, is incorporated with the summons. The
allegations are:
"On the first day of January, 1869, the defendant willfully
deserted the plaintiff, and has continued said desertion, with
total neglect of all the duties of the marriage on her part to be
performed to the date of this writ, being for more than three
years, and during the plaintiff's residence in this state."
It is conceded that such desertion is good ground for a divorce
in Connecticut, which may be granted to a plaintiff who has
continuously resided in the state three years next before the date
of the complaint. The complaint obviously made a case for divorce
under the statute. The court found that the complaint and writ had
been duly served on the defendant, pursuant to an order of notice
made thereon by the clerk; that the allegations of the complaint
had been sustained, and a divorce was granted.
The case then resolves itself into the single question whether a
divorce granted to a plaintiff lawfully domiciled within a
Page 201 U. S. 611
state as against a defendant domiciled in another state, who has
been served by publication or letter only, is a valid defense to a
suit by the latter for a separation and alimony.
Certain cases in this Court tend strongly to support the
proceedings in Connecticut.
Strader v.
Graham, 10 How. 82, was an action to recover the
value of certain slaves carried into Ohio, a free state. The case
was dismissed, as involving a question of the local law of
Kentucky, the Court remarking:
"Every state has an undoubted right to determine the status, or
domestic and social condition, of the persons domiciled within its
territory, . . . and . . . it was exclusively in the power of
Kentucky [wherein the suit was brought] to determine for itself
whether their employment in another state should or should not make
them free on their return."
In
Barber v.
Barber, 21 How. 582, a New York court decreed a
separation and alimony to the wife. The husband removed to
Wisconsin for the purpose of placing himself beyond the
jurisdiction of the court which could enforce it, and there
obtained a divorce
a vinculo upon the ground of
abandonment. The sole question raised by the record was:
"Whether a wife divorced
a mensa et thoro can acquire
another domiciliation in a state of this Union different from that
of her husband, to entitle her, by her next friend, to sue him in a
court of the United States, having equity jurisdiction, to recover
from him alimony due, and which he refuses to make arrangements to
pay, and whether a court of equity is not a proper tribunal for a
remedy in such a case."
It was a suit to recover upon a judgment obtained in New York
before proceedings instituted in Wisconsin, and was sustained.
Obviously the Wisconsin divorce was no defense, but its validity
was not impugned.
Cheever v.
Wilson, 9 Wall. 109, turned upon certain rights of
property, and incidentally upon a divorce obtained in Indiana, in a
suit in which the defendant appeared. The case, however, is
valuable for two questions decided: first, that a decree of
divorce, valid and effectual by the laws of the state
Page 201 U. S. 612
in which it was obtained, is valid and effectual in all other
states; second, that a wife may acquire a domicil different from
her husband's whenever it is necessary or proper that she should
have such a domicil, and on such a domicil, if the case otherwise
allow it, may institute proceedings for divorce though it be
neither her husband's domicil nor have been the domicil of the
parties at the time of the marriage or of the offense.
Of course it follows that, if the wife may obtain a new domicil,
her husband may do likewise, as was done in this case, after the
separation or abandonment had taken place. In delivering the
opinion, Mr. Justice Swayne observed: "The decree [of divorce] was
valid and effectual according to the law and adjudications in
Indiana."
The Constitution and laws of the United States give the decree
the same effect elsewhere which it had in Indiana. "
I
f a judgment is conclusive in the state where it is rendered, it is
equally conclusive everywhere' in the courts of the United States."
In
Cheely v. Clayton, 110 U. S. 701, a
divorce obtained in a territorial court upon notice by publication
insufficient under the laws of the territory was held to be of no
effect. The Court, however, observing:
"If a wife is living apart from her husband without sufficient
cause, his domicil is in law her domicil, and in the absence of any
proof of fraud or misconduct on his part, a divorce obtained by him
in the State of his domicil, after reasonable notice to her, either
by personal service or by publication, in accordance with its laws,
is valid, although she never in fact resided in that state,"
citing
Burlen v. Shannon, 115 Mass. 439, and
Hunt
v. Hunt, 72 N.Y. 217.
In
Maynard v. Hill, 125 U. S. 190, a
legislative divorce was upheld, and it was said that the fact that
no cause existed for the divorce, and that it was obtained without
the knowledge of the wife, cannot affect the validity of the act.
It was further said that though the conduct of the husband merited
the strongest reprobation, his abandonment of his wife, his
loose
Page 201 U. S. 613
morals, and shameless conduct could have no bearing upon the
power of the assembly to pass the act.
Four recent decisions in this Court are too important to pass
unnoticed. In
Bell v. Bell, 181 U.
S. 175, and in
Streitwolf v. Streitwolf,
181 U. S. 179, it
was held that a divorce obtained in a state in which neither party
was domiciled, upon service by publication, and in another state,
was entitled to no faith and credit. These decisions were
unanimous. And in
Andrews v. Andrews, supra, that a
divorce obtained by one who had gone into another state to procure
a divorce, in fraud of the law of the domicil, was also
invalid.
There remains the case of
Atherton v. Atherton,
181 U. S. 155, a
divorce obtained by a husband in Kentucky, which had been the
matrimonial domicil, though the wife had been absent from the state
for several months and apparently had attempted to acquire a new
domicil in New York. The Court took care to confine the case to the
one point decided -- namely, the validity of a divorce obtained at
the matrimonial domicil. The court, out of abundant caution,
expressly disclaimed that the case involved the validity of a
divorce granted, on constructive service, by the court of a state
in which only one of the parties ever had a domicil; nor the
question to what extent the good faith of the domicil may be
afterwards inquired into.
"In this case, the divorce in Kentucky was by the court of the
state which had always been the undoubted domicil of the husband,
and which was the only matrimonial domicil of the husband and wife.
The single question to be decided is the validity of that divorce,
granted after such notice had been given as was required by the
statutes of Kentucky."
While the
Atherton case, as already stated, was
confined to a divorce obtained at the matrimonial domicil, the
cases cited by MR. JUSTICE GRAY in his opinion relate to divorces
obtained in a state which was the domicil only of the complaining
party, and are practically the same as those cited by him in his
opinion as Chief Justice of Massachusetts in
Burlen v.
Shannon, 115 Mass. 438. In reading the two cases together, one
is
Page 201 U. S. 614
strongly impressed with the idea that, in the
Atherton
case, he had the former case in mind, and gave it such approval as
the facts in the latter case would warrant. Not only had the Court
of Appeals of Kentucky decided that a wife residing in that state
was entitled to obtain a decree of divorce against her husband, who
had left the state.
Rhyms v. Rhyms, 7 Bush, 316;
Perzel v. Perzel, 91 Ky. 634, but a number of cases from
other states were cited holding to the same principle.
The opinion of the Court in the present case admits that, where
the domicil of the husband is also the domicil of matrimony, the
courts of that domicil may disregard an unjustifiable absence of
the wife therefrom, and treat her as having her domicil there for
the purpose of dissolving the marriage as to both parties, and that
such dissolution would be recognized in all other states by virtue
of the full faith and credit clause, citing to this effect
Atherton v. Atherton, supra, and, as a corollary
therefrom, it is admitted that no question can arise concerning the
right of the State of Connecticut to give effect to a decree of
divorce rendered in favor of the husband while domiciled in that
state. The question is undoubtedly, as stated, whether the
Connecticut court, in virtue of the domicil of the husband in that
state, had jurisdiction to render a decree against the wife which
was entitled to be enforced in other states, under the full faith
and credit clause.
I deny, however, that the final question is whether this would
be enforcing a personal judgment rendered in another state against
the defendant, over whom the court rendering the judgment had not
acquired jurisdiction. A proceeding for divorce is not
in
personam, nor of an exceptional character, except so far as
all proceedings
in rem are governed by a different rule
from that applicable to proceedings
in personam. The
validity of the latter class depends upon personal service of the
defendant being obtained within the jurisdiction. The validity of
the former depends upon the jurisdiction of the court over the
res -- in this case, the marriage relation, the domicil of
the plaintiff, and such jurisdiction over the defendant as as is
consonant
Page 201 U. S. 615
with the general principles of the Constitution with regard to
due process of law.
The propositions of the opinion, as we understand it, may be
summarized as follows:
That, if one government, by virtue of its authority over
marriage, may dissolve the tie as to citizens of another
government, that other government would have a similar power, and
hence the right of every government over its own citizens might be
rendered nugatory by the exercise of the power which every other
government possesses. To illustrate by the present case: that, if
the husband may desert his original domicil in New York, go to the
State of Connecticut, acquire a domicil there, and procure a
divorce which would be binding in New York as to the party there
domiciled, it would follow that the power of the State of New York
as to the dissolution of the marriage, as to its domiciled citizen,
would be of no practical avail. The opinion, however, fails to
state the logical result of this proposition --
viz., that
no divorce would be possible in either state without a personal
service upon the other within the state. If the husband, having his
domicil in Connecticut, could not obtain a divorce against his wife
domiciled in New York without a personal service, it follows that
the wife, domiciled in New York, could not obtain a divorce against
her husband in that state without a personal service there.
Undoubtedly the laws of some states are more liberal upon the
subject of divorce than those of other states, but that does not
affect the question. If the complaining party has acquired a
domicil in the state in which he institutes proceedings, he is
entitled to the benefit of the laws of that state with respect to
the causes of divorce.
It is argued that, as the Constitution delegated no authority to
the government of the United States on the subject of marriage and
divorce, yet, if the validity of the Connecticut divorce in this
case be sustained, it follows that the destruction of the power of
the states over the dissolution of marriage of its own citizens
would be brought about by the full faith and credit
Page 201 U. S. 616
clause of the Constitution. But this was the very point decided
in the
Atherton case, where a divorce obtained in Kentucky
by publication was held good in New York as against a proceeding by
the wife for a divorce in that state. It is true that the
matrimonial domicil was in Kentucky. But this does not affect the
proposition asserted in the opinion, that the decree did work a
dissolution of the marriage as to her by the operation of the full
faith and credit clause of the Constitution, and to that extent it
did work a destruction of the power of the State of New York over
the dissolution of the marriage. But the argument to that effect
was not considered by this Court to be sound. It does undoubtedly
follow that the
res -- that is, the marriage relation --
was as much in the State of New York as it was in the State of
Connecticut, but it does not follow that the action of the
Connecticut court with respect to that
res is not as much
obligatory in New York as in Connecticut. It is of the very essence
of proceedings
in rem that the decree of a court with
respect to the
res, whether it be a vessel, a tract of
land, or the marriage relation, is entitled to be respected in
every other state or country. The status fixed by the adjudication
in the state of the former is operative everywhere. Indeed, the
proposition is so elementary as not to need the citation of an
authority.
The conclusion of the argument is that the courts of New York,
having the same power to decree a dissolution of the marriage at
the suit of the wife that the courts of Connecticut would have to
make a similar decree at the suit of the husband, it would become a
mere race of diligence between the parties in seeking different
forums in other states, or the celerity by which in such states
judgments of divorce might be procured would have to be considered
in order to decide which forum was controlling. Granting this to be
the case, does not every plea of
res judicata presuppose a
prior judgment, and is it a defense to such plea that such judgment
was obtained by superiority in a race of diligence? The whole
doctrine is founded, if not upon the doctrine of superior
diligence, at least upon the
Page 201 U. S. 617
theory of a prior judgment, which fixes irrevocably the rights
of the parties whenever and wherever these rights may come in
question. Nor is the rule less operative where suits are in
different states and the laws applicable to the questions therein
arising are different. To illustrate: suppose a note and mortgage
were given for usurious interest, and the mortgage was sought to be
foreclosed in a state where, by statute, usury would invalidate
both principal and interest, and a decree were obtained dismissing
the bill -- can it be doubted that, if the note were sued upon in
another state where usury did not invalidate the security, the plea
of
res judicata would be sustained upon the ground that
the rights of the parties had been definitely fixed in the suit for
the foreclosure of the mortgage? It seems to me the same rule
applies in this case. So long as no proceedings are taken, the
marriage would remain valid both by the laws of Connecticut and of
New York. But if a suit be instituted by either party, by the
husband for a divorce or by the wife for a maintenance, and the
question of marriage or no marriage be made an issue, and decided
in the case first brought, that decree is forever binding upon both
parties. Had the wife in this case brought suit to dissolve the
marriage, or for a maintenance in affirmation of the marriage, the
decree of the court in New York would have been as binding upon the
court in Connecticut as the decree obtained in Connecticut ought to
be upon the wife in New York.
The cases in the state courts, with a few exceptions,
hereinafter noted, overwhelmingly preponderate in holding that
where the plaintiff has acquired a
bona fide domicil in a
particular state, he may lawfully appeal to the courts of that
state for a dissolution of the marriage tie, for the causes
permitted by its statutes, and may call in the nonresident
defendant by publication. To abstract all these cases would unduly
prolong this opinion.
In many of them, the full faith and credit clause of the
Constitution does not seem to have been called to the attention of
the court, and the case was disposed of upon principles of
comity,
Page 201 U. S. 618
which give to the court a certain latitude of discretion,
whereas, under the full faith and credit clause, the consideration
given to a decree in the state where it is rendered is obligatory
in every other state.
One of the earliest of these cases is that of
Harding v.
Alden, 9 Me. 140, in which the parties separated, the husband
going to North Carolina and the wife to Rhode Island. She began
proceedings there which culminated in a divorce for adultery
committed in North Carolina, the husband having been personally
cited to appear but refusing to do so. The divorce was held to be
valid, the court observing that
"the protection of innocent parties and the purity of public
morals require that divorces lawfully pronounced in one
jurisdiction, and the new relations thereupon formed, should be
recognized as operative and binding everywhere"
in the absence of fraud or collusion. The ruling was that the
wife was entitled to dower in lands of which the husband was seised
during coverture, the statute expressly giving the right where
divorce was decreed for the cause of adultery, as if the husband
were dead.
In
Barber v. Root, 10 Mass. 260, the parties,
originally domiciled in Massachusetts, removed to Vermont and
established a permanent domicil there. The court, while repudiating
the idea that a divorce could be granted to a person who was not
domiciled in Vermont, held the divorce to be good.
In
Hood v. Hood, 11 Allen 196, a divorce obtained in
Illinois by the husband for desertion, upon notice by publication
in a newspaper, was held to be valid as against the wife, although
she was then living in Massachusetts under an agreement on his part
to pay her a certain sum per week, and although she had no actual
notice of the proceedings, and was not in Illinois during the
pendency thereof. It was further held that she could not, in a
libel for divorce brought by her in Massachusetts, offer evidence
that the Illinois decree was obtained by fraud, and upon facts
which would not entitle her to a divorce in Massachusetts. In a
subsequent case between the same parties
Page 201 U. S. 619
110 Mass. 463, the court again decided that the Illinois decree
could not be impeached and that she was not entitled to dower in
any lands of which the husband was seised during the coverture.
The whole subject was very carefully considered in
Burlen v.
Shannon, 115 Mass. 438, which was an action against the
husband for board furnished the wife. The husband, whose wife was
living apart from him without justifiable cause, removed to
Indiana, acquired a domicil there, and obtained a decree of divorce
by publication and by leaving a summons at her abode in
Massachusetts. The divorce was held to be valid in Massachusetts as
to all persons, although the wife had never been in Indiana, never
appeared in the suit there, had no knowledge that her husband
contemplated going to that state or had left Massachusetts, until
after he had filed his libel for divorce. The authorities are
reviewed by Mr. Justice Gray, and the conclusion reached that the
divorce in Indiana was valid.
Cummington v. Belchertown, 149 Mass. 223, was an action
to recover expenses incurred by the plaintiff for the support of an
insane pauper. The husband had removed to another state and
procured a decree annulling the marriage on the ground of fraud in
concealing from him the fact of insanity before their marriage.
Notice of the proceedings was served upon her, but she was not
represented, and it was held that the decree was insufficient to
annul her marriage in Massachusetts. It was held, under the
familiar rule that the jurisdiction of the foreign court may be
inquired into, that the wife, when the proceedings were commenced
and concluded, was utterly insane, and that the record of the New
York courts showed her to have been so, and that no guardian was
appointed. The case was disposed of as one over which the New York
court had acquired no jurisdiction. It does not qualify in any way
the previous case of
Burlen v. Shannon.
The case of
Ditson v. Ditson, 4 R.I. 87, is directly in
point, and I understand it to be so admitted. It was held that
a
Page 201 U. S. 620
divorce in Rhode Island on the ground of desertion was valid
though the husband had never been within the jurisdiction of Rhode
Island and only constructive notice of the pendency of the petition
had been given him.
The rule in Kentucky is settled in
Rhyms v. Rhyms, 7
Bush 316, in which a wife proceeded against her husband as a
nonresident by a warning order, and it was held that the court had
jurisdiction to grant her a divorce, Chief Justice Robertson
remarking:
"It would be a reproach to our legislation if a faithless
husband in Kentucky could, by leaving the state, deprive his
abandoned wife of the power of obtaining a divorce at home."
In
Hawkins v. Ragsdale, 80 Ky. 353, it was held that a
divorce obtained by the husband in Indiana by constructive service
determined the status of the party in Kentucky, and under the
statutes of that state, it barred all claim to curtesy or dower in
Kentucky lands. To the same effect is
Perzel v. Perzel, 91
Ky. 634.
The law of California is settled in
In re Newman, 75
Cal. 213, to the effect that a suit for divorce, so far as it
affects the status of the parties and the custody of their
children, is a proceeding
in rem, and service by
publication on a nonresident defendant is good. This ruling was
repeated in
In re James, 99 Cal. 374, where it is declared
that such decree is equally valid in other states.
Nowhere is the rule more strongly asserted than in Tennessee,
where a decree obtained in Illinois by publication was sustained in
Thomas v. King, 95 Tenn. 60, and where it seems to have
been held that the decree could not be impeached even by showing
the absence of necessary residence.
In
Cooper v. Cooper, 7 Ohio St. 594, it was held that a
divorce granted in Indiana precluded an application for a divorce
and alimony in Ohio. In
Cox v. Cox, 19 Ohio St. 502, the
validity of a foreign decree of divorce obtained by constructive
service, except so far as regarded the question of alimony, was
sustained. The same ruling was made in
Doerr v. Forsythe,
50 Ohio St. 726, holding that, while the Indiana divorce was
good,
Page 201 U. S. 621
it did not affect the property rights of the wife in the State
of Ohio.
The rule in Missouri is stated in
Gould v. Crow, 57 Mo.
200, that a divorce regularly obtained by the husband in Indiana on
an order of publication operates as a divorce in his favor in
Missouri so as to prevent his wife from claiming dower in lands
owned by him in that state. The decree so pronounced is a judgment
in rem, and is valid everywhere under the Constitution and
laws of the United States. A like ruling was made in
Anthony v.
Rice, 110 Mo. 223.
The law in Kansas is settled in
Rodgers v. Rodgers, 56
Kan. 483, to the effect that the courts of a sister state may
dissolve a marriage relation between a husband domiciled there and
a wife domiciled in Kansas, by publication, although unknown to
her, but that such courts have no power to settle the title of
lands in Kansas or control the custody of children residing there.
But it was also decided in
Chapman v. Chapman, 48 Kan.
636, that a wife, having obtained a divorce in Ohio upon service by
publication, was not entitled to dower in lands in Kansas
fraudulently conveyed by her husband in fraud of her or others.
In
Smith v. Smith, 43 La.Ann. 1140, it is held that a
wife may acquire a separate domicil from that of her husband where
his conduct has been such as to furnish ground for divorce and her
marriage status becomes subject to the jurisdiction of that
domicil, and that the courts thereof may grant a divorce upon
actual or constructive notice. The rights of the Louisiana courts
to decree a divorce against an absentee by means of substituted
service is again affirmed in
Butler v. Washington, 45
La.Ann. 279.
The law of Wisconsin is the same.
Shafer v. Bushnell,
24 Wis. 372;
Cook v. Cook, 56 Wis.195, though in the
latter case, the right of the wife to an interest in her husband's
lands in Wisconsin was preserved.
In
Thompson v. State, 28 Ala. 12, the right of the
husband to emigrate and acquire a new domicil and procure a
Page 201 U. S. 622
divorce upon publication in the State of his domicil was also
affirmed.
See also Turner v. Turner, 44 Ala. 437. In the
latter case, it is indicated that a foreign divorce did not settle
the rights of the wife to dower in his lands, or any other
interests of a pecuniary character.
In
Kline v. Kline, 57 Ia. 386, a decree rendered in
another state on service by publication was recognized except so
far as it attempted to fix the custody of the minor children. In
Van Orsdal v. Van Orsdal, 67 Ia. 35, the property rights
of the wife were recognized, but this right was limited to property
within the state, and which the husband owned at the time of the
divorce, and not to what he subsequently acquired. In this case, it
was said:
"The divorce was granted . . . in May, 1880. In November, 1881,
the defendant's father died in this state, possessed of certain
property which the defendant inherited. Now while it may be that
the plaintiff might be entitled to alimony if the defendant had
owned property in the state at the time the divorce was procured in
Nebraska, she cannot be so entitled because he has subsequently
acquired property. The plaintiff, if entitled to alimony, was so
entitled at the time the divorce was granted. The relation of
husband and wife then ceased, and neither party is entitled to any
share or interest in property which may be subsequently
acquired."
In Indiana the right of a wife domiciled there to a divorce
against the husband who never resided in that state, and upon whom
service was only obtained by publication, is recognized in
Tolen v. Tolen, 2 Blackf. 407;
Hood v. State, 56
Ind. 263, and in
Hilbish v. Hattle, 145 Ind. 59, it was
held that the wife had no rights in his property by virtue of her
marriage relations with the husband, though the court did not, in
the divorce proceedings, adjudicate the property rights of the
parties.
In
Garner v. Garner, 56 Md. 127, the power to grant a
divorce against a nonresident upon whom process had not been served
was recognized, but the right to a decree that the nonresident
should not marry again was denied.
Page 201 U. S. 623
In
Thurston v. Thurston, 58 Minn. 279, the divorce was
recognized, though process was served outside of the state. But it
was held that the question of alimony was not
res judicata
by reason of the judgment. The wife was allowed alimony out of the
property in Minnesota.
The validity of foreign divorces obtained without personal
service is recognized in Illinois in
Knowlton v. Knowlton,
155 Ill. 158, and in
Dunham v. Dunham, 162 Ill. 589.
The law in New Jersey appeared at one time to favor the
contention of the wife in this case. The gist of the decisions
seemed to be that a foreign decree is enforceable in another state
only on the ground of comity. This was indicated in
Doughty v.
Doughty, 28 N.J.Eq. 581, though the decree in that case was
held to have been obtained by fraud. It was admitted that the
decree obtained by the husband in Illinois was lawful and binding
there, but is was held that it did not change the status of the
wife in New Jersey, her citizenship there being admitted. The case
was properly decided on the ground that the husband went to
Illinois to obtain a divorce, and acquired no
bona fide
domicil there. The same rule was recognized in
Flower v.
Flower, 42 N.J.Eq. 152. These cases, however, seem to have
been overruled in
Felt v. Felt, 59 N.J.Eq. 606, where it
was held that the domicil of the complainant in a foreign state was
sufficient to give jurisdiction, notwithstanding the defendant had
not been served with process there. The chief justice remarked in
this case:
"A condition of the law which makes the intercourse of a man and
woman either legitimate or adulterous as they happen to be within
the limits of one state or another is not to be tolerated any
further than is plainly required by public policy."
This case evidently puts New Jersey in line with the vast
majority of other states.
The cases of New York upon this subject are numerous and perhaps
not wholly reconcilable, but we think that the law, as summarized
in the last case of
Winston v. Winston, 165 N.Y. 553, is
adverse to the validity of a divorce obtained in another state
without service of process within the jurisdiction. Of
Page 201 U. S. 624
the same tenor are the cases in Pennsylvania:
Colvin v.
Reed, 55 Pa. 375;
Reel v. Elder, 62 Pa. 308. North
Carolina:
Irby v. Wilson, 21 N.C. 568;
Harris
v.Harris, 115 N.C. 587; South Carolina:
McCreery v.
Davis, 44 S.C.195.
The law in this country, then, may be summarized as follows: in
Maine, Massachusetts, Rhode Island, Kentucky, California,
Tennessee, Ohio, Missouri, Kansas, Louisiana, Wisconsin, Alabama,
Iowa, Indiana, Maryland, Minnesota, Illinois, and New Jersey, the
validity of a divorce obtained in another state by a party there
domiciled, in a proceeding where constructive service upon the
defendant only is obtained, is fully recognized. In Ohio, Iowa, and
Minnesota, and perhaps also Louisiana and Alabama, her right to
alimony and to dower is preserved. But the very cases which limit
the effect of the divorce, so far as property rights are concerned,
restrict such rights to dower in lands of which the husband was
seised during coverture, and inferentially, at least, to alimony
from such property. It is also limited to property within the state
where suit is brought. That her rights in her husband's property
should extend to property acquired by him long after the divorce is
nowhere indicated.
The only states in which it is held that a party domiciled in
another state may not obtain a divorce there by constructive
service are New York, Pennsylvania, North and South Carolina.
A proceeding for divorce is a suit
in rem, with which
is often incorporated a suit
in personam. The
res
is aptly stated in
Ellison v. Martin, 53 Mo. 575, as
"the status of the plaintiff in relation to the defendant, to be
acted on by the court. This relation being before the court in the
person of the plaintiff, the court acts on it, and dissolves it by
a judgment of divorce."
The fact subsequently ascertained, that it may have been
procured by fraud or false testimony, is wholly beside the
question, as we shall hereafter show. The fact that the husband
changed his domicil to another state, after the cause of action
Page 201 U. S. 625
arose, is also immaterial. The status of the husband in this
case was irrevocably fixed by the decree. It is unnecessary to
consider how far it affected the status of the wife in New York,
which, in respect to other questions, may be subject to the local
law; but her relations as against her husband are controlled by the
decree which fixed his status. Indeed, it would be a reproach to
our jurisprudence if an injured party residing in one state could
not obtain a decree from the other party without pursuing the
offending party into another and distant state where he or she may
have chosen to establish a domicil.
In this case, the referee reported that the defendant abandoned
the plaintiff without cause or justification. An exception was
taken to this report, and the testimony was sent up, which shows
that the parties separated on the day of their marriage and have
never lived together since. The testimony leaves it doubtful
whether it was a case of abandonment or of separation by mutual
consent. It does, however, show that plaintiff took no steps to
assert her marital rights for twenty-six years after her marriage.
Her husband having in the meantime inherited a large amount of
property from his father, she began suit for divorce
a mensa et
thoro and an allowance of alimony. This suit, however, was
ineffectual so far as respects the alimony, as no personal service
was obtained. She waited again for five years and began this
proceeding both for a separation, which she had already obtained,
and for alimony.
We think the defendant may lawfully reply this:
"You are pursuing me as your husband for a separation
de
jure which has existed for thirty-one years
de facto,
and since 1894
de jure, and for an alimony which is
obviously the sole object of your proceeding. Your only claim
against me is as your husband. I am not your husband. Twenty-three
years ago the Superior Court of Litchfield County, Connecticut, in
which state I had an actual and
bona fide domicil, and
which had had sole jurisdiction over my marital status for twelve
years, liberated me from the bonds of matrimony and pronounced me a
free man. In the meantime, I have married another woman, and if
your
Page 201 U. S. 626
position be a sound one, I am, at least in the State of New
York, a bigamist, and my wife an adulteress."
It is difficult to conceive of a case calling more loudly for
the application of the general doctrine.
As no question is made as to the validity of the Connecticut
decree and its legal effect in that state, and as this Court has
repeatedly decided that, under the full faith and credit clause of
the Constitution, a judgment conclusive in the state where it is
rendered is equally conclusive everywhere in the courts of the
United States,
Cheever v.
Wilson, 9 Wall. 108;
Mills
v. Duryee, 7 Cranch 483;
D'Arcy v.
Ketchum, 11 How. 165, I do not understand how this
decree can be denied the same effect in New York that it has in
Connecticut without disregarding the constitutional provision in
question. The result is that the husband, freed from the bonds of
matrimony in Connecticut, was at liberty to contract another
marriage there, while the wife cannot, even at this late day,
contract another marriage in New York without being guilty of
adultery.
3. It is insisted, however, that the decree of the Connecticut
court was obtained by the fraud of Haddock in stating in his
complaint that his wife had deserted him when, in the present case,
it appears from his own testimony that he in fact abandoned and
refused to live with her, or that they separated by mutual
consent.
The evidence upon which the Connecticut decree was granted does
not appear in the record, and it is possible that the case was made
out by the testimony of other witnesses. But, however that may be,
this decree cannot be impeached by evidence that it was obtained by
false testimony, even though it be testimony of the plaintiff in
that proceeding and the defendant in this.
Hood v. Hood,
11 Allen 196, in which it was held that both parties had their
domicil in Illinois, and were subject to the jurisdiction of its
courts, and that the fact of desertion by the wife was conclusively
settled between the parties by the decree in Illinois, and it was
not competent for the wife to
Page 201 U. S. 627
contradict it on a libel filed by her afterwards in
Massachusetts.
See same case, 110 Mass. 463.
The rule is well settled that, while a judgment or decree may
sometimes be impeached for fraud, it can only be for a fraud
extrinsic to the cause -- as that the judgment was collusively
obtained to defraud some other person, and that it cannot be
impeached by either of the parties thereto by reason of false
testimony given at the time, or which must have been given to
establish the plaintiff's case, or even by perjury of one of the
parties thereto. Granting that the testimony shows the absence of
good faith, and even perjury, on the part of the husband in the
Connecticut suit, the decree cannot be opened for that reason, or
for any reason, which would not logically involve a reexamination
of the entire facts upon which the decree is obtained.
Christmas v.
Russell, 5 Wall. 290;
United States v.
Throckmorton, 98 U. S. 61;
Simms v.
Slacum, 3 Cranch 300;
Ammidon v.
Smith, 1 Wheat. 447;
Smith v. Lewis, 3
Johns. 157;
Marriot v. Hampton, 7 T. R. 269;
Demerit
v. Lyford, 27 N.H. 541, 546;
Peck v. Woodbridge, 3
Day 30;
Dilling v. Murray, 6 Ind. 324;
Homer v.
Fish, 1 Pick, 435;
Lewis v. Rogers, 16 Pa. 18;
Sidensparker v. Sidensparker, 52 Me. 481;
B. & W.
R. Corp. v. Sparhawk, 1 Allen 448;
Damport v.
Sympson, Cro.Eliz. 520;
Eyres v. Sedgewicke, Cro.Jac.
601;
Mason v. Messenger, 17 Ia. 261, 272;
Walker v.
Ames, 2 Cow. 428;
White v. Merritt, 7 N.Y. 352.
When it is considered that the status of the defendant was fixed
by the decree of the Connecticut court in 1881, in a proceeding of
which his wife had due notice, that, upon the faith of this decree,
he remarried the following year, and that the plaintiff made no
move to establish her conjugal rights for thirteen years
thereafter, and for twenty-six years after her marriage, the
injustice of holding all these proceedings to be null and void,
even upon the assumption of perjury committed by the defendant,
becomes the more manifest. We think that at least the record should
have been received.
I regret that the court in this case has taken what seems to
Page 201 U. S. 628
me a step backward in American jurisprudence, and has virtually
returned to the old doctrine of comity, which it was the very
object of the full faith and credit clause of the Constitution to
supersede.
MR. JUSTICE HOLMES, with whom concurred MR. JUSTICE HARLAN, MR.
JUSTICE BREWER, and MR. JUSTICE BROWN, dissenting:
I do not suppose that civilization will come to an end whichever
way this case is decided. But as the reasoning which prevails in
the mind of the majority does not convince me, and as I think that
the decision not only reverses a previous well considered decision
of this Court, but is likely to cause considerable disaster to
innocent persons, and to bastardize children hitherto supposed to
be the offspring of lawful marriage, I think it proper to express
my views. Generally stated, the issue is whether, when a husband
sues in the court of his domicil for divorce from an absent wife on
the ground of her desertion, the jurisdiction of the court, if
there is no personal service, depends upon the merits of the case.
If the wife did desert her husband in fact or if she was served
with process, I understand it not to be disputed that a decree of
divorce in the case supposed would be conclusive, and so I
understand it to be admitted that, if the court of another state,
on a retrial of the merits, finds them to have been decided
rightly, its duty will be to declare the decree a bar to its
inquiry. The first form of the question is whether it has a right
to inquire into the merits at all. But I think that it will appear
directly that the issue is narrower even than that.
In
Atherton v. Atherton, 181 U.
S. 155, a divorce was granted, on the ground of
desertion to a husband in Kentucky against a wife who had
established herself in New York. She did not appear in the suit,
and the only notice to her was by mail. Before the decree was made,
she sued in New York for a divorce from bed and board, but, pending
the latter proceedings, the Kentucky suit was brought to its end.
The husband appeared
Page 201 U. S. 629
in New York and set up the Kentucky decree. The New York court
found that the wife left her husband because of his cruel and
abusive treatment, without fault on her part, held that the
Kentucky decree was no bar, and granted the wife her divorce from
bed and board. The New York decree, after being affirmed by the
Court of Appeals, was reversed by this Court on the ground that it
did not give to the Kentucky decree the faith and credit which it
had by law in Kentucky. Of course, if the wife left her husband
because of his cruelty, and without fault on her part, as found by
the New York court, she was not guilty of desertion. Yet this Court
held that the question of her desertion was not open, but was
conclusively settled by the Kentucky decree.
There is no difference, so far as I can see, between
Atherton v. Atherton and the present case, except that, in
Atherton v. Atherton, the forum of the first decree was
that of the matrimonial domicil, whereas in this, the court was
that of a domicil afterwards acquired. After that decision, any
general objection to the effect of the Connecticut decree on the
ground of the wife's absence from the state comes too late. So does
any general objection on the ground that to give it effect invites
a race of diligence. I therefore pass such arguments without
discussion, although they seem to me easy to answer. Moreover,
Atherton v. Atherton decides that the jurisdiction of the
matrimonial domicil, at least to grant a divorce for the wife's
desertion without personal service, does not depend upon the fact
of her desertion, but continues even if her husband's cruelty has
driven her out of the state and she has acquired a separate domicil
elsewhere upon the principles which we all agree are recognized by
this Court.
I can see no ground for giving a less effect to the decree when
the husband changes his domicil after the separation has taken
place. The question whether such a decree should have a less effect
is the only question open, and the issue is narrowed to that. No
one denies that the husband may sue for divorce in his new domicil,
or, as I have said, that if he gets a decree when
Page 201 U. S. 630
he really has been deserted, it will be binding everywhere.
Hawkins v. Ragsdale, 80 Ky. 353, cited 181 U.S.
181 U. S. 162;
Cheely v. Clayton, 110 U. S. 701,
110 U. S. 705.
It is unnecessary to add more cases. The only reason which I have
heard suggested for holding the decree not binding as to the fact
that he was deserted is that, if he is deserted, his power over the
matrimonial domicil remains, so that the domicil of the wife
accompanies him wherever he goes, whereas, if he is the deserter,
he has no such power. Of course, this is a pure fiction, and
fiction always is a poor ground for changing substantial rights. It
seems to me also an inadequate fiction, since, by the same
principle, if he deserts her in the matrimonial domicil, he is
equally powerless to keep her domicil there if she moves into
another state. The truth is that jurisdiction no more depends upon
both parties' having their domicil within the state than it does
upon the presence of the defendant there, as is shown not only by
Atherton v. Atherton, but by the rights of the wife in the
matrimonial domicil when the husband deserts.
There is no question that a husband may establish a new domicil
for himself even if he has deserted his wife. Yet, in these days of
equality, I do not suppose that it would be doubted that the
jurisdiction of the court of the matrimonial domicil to grant a
divorce for the desertion remained for her, as it would for him in
the converse case.
See Cheever v.
Wilson, 9 Wall. 108. Indeed, in
Ditson v.
Ditson, 4 R.I. 87, which, after a quotation of Judge Cooley's
praise of it, is stated and relied upon as one of the pillars for
the decision of
Atherton v. Atherton, a wife was granted a
divorce, without personal service, in the state of a domicil
acquired by her after separation, on the sole ground that in the
opinion of the court its decree would be binding everywhere. If
that is the law, it disposes of the case of a husband under similar
circumstances -- that is to say, of the present case,
a
fortiori, for I suppose that the notion that a wife can have a
separate domicil from her husband is a modern idea. At least
Ditson v. Ditson confirms the assumption that jurisdiction
is not dependent on the wife's actually residing in
Page 201 U. S. 631
the same state as her husband, which has been established by
this Court.
Atherton v. Atherton, 181 U.
S. 155;
Maynard v. Hill, 125 U.
S. 190;
Cheever v.
Wilson, 9 Wall. 108. When that assumption is out of
the way, I repeat that I cannot see any ground for distinguishing
between the extent of jurisdiction in the matrimonial domicil and
that admitted to exist to some extent in a domicil later acquired.
I also repeat and emphasize that, if the finding of a second court,
contrary to the decree, that the husband was the deserter destroys
the jurisdiction in the later acquired domicil because the domicil
of the wife does not follow his, the same fact ought to destroy the
jurisdiction in the matrimonial domicil if, in consequence of her
husband's conduct, the wife has left the state. But
Atherton v.
Atherton decides that it does not.
It is important to bear in mind that the present decision
purports to respect, and not to overrule,
Atherton v.
Atherton. For that reason, among others, I spend no time in
justifying that case. And yet it appears to me that the whole
argument which prevails with the majority of the Court is simply an
argument that
Atherton v. Atherton is wrong. I have tried
in vain to discover anything tending to show a distinction between
that case and this. It is true that, in
Atherton v.
Atherton, MR. JUSTICE GRAY confined the decision to the case
before the court. Evidently, I should say, from internal evidence,
in defense to scruples which he did not share. But a court, by
announcing that its decision is confined to the facts before it,
does not decide in advance that logic will not drive it further
when new facts arise. New facts have arisen. I state what logic
seems to me to require if that case is to stand, and I think it
reasonable to ask for an articulate indication of how it is to be
distinguished.
I have heard it suggested that the difference is one of degree.
I am the last man in the world to quarrel with a distinction simply
because it is one of degree. Most distinctions, in my opinion, are
of that sort, and are none the worse for it. But the line which is
drawn must be justified by the fact that it is
Page 201 U. S. 632
a little nearer than the nearest opposing case to one pole of an
admitted antithesis. When a crime is made burglary by the fact that
it was committed thirty seconds after one hour after sunset,
ascertained according to mean time in the place of the act, to take
an example from Massachusetts (R.L., c. 219, § 10), the act is a
little nearer to midnight than if it had been committed one minute
earlier, and no one denies that there is a difference between night
and day. The fixing of a point when day ends is made inevitable by
the admission of that difference. But I can find no basis for
giving a greater jurisdiction to the courts of the husband's
domicil when the married pair happens to have resided there for a
month, even if with intent to make it a permanent abode, than if
they had not lived there at all.
I may add, as a consideration distinct from those which I have
urged, that I am unable to reconcile with the requirements of the
Constitution, Article IV, § 1, the notion of a judgment's being
valid and binding in the state where it is rendered, and yet
depending for recognition to the same extent in other states of the
Union upon the comity of those states. No doubt some color for such
a notion may be found in state decisions. State courts do not
always have the Constitution of the United States vividly present
to their minds. I am responsible for language treating what seems
to me the fallacy as open, in
Blackinton v. Blackinton,
141 Mass. 432, 436. But there is no exception in the words of the
Constitution. "If the judgment is conclusive in the state where it
was pronounced, it is equally conclusive everywhere."
Christmas v.
Russell, 5 Wall. 290,
72 U. S. 302.
Marshall, C.J., in
Hampton v.
M'Connel, 3 Wheat. 234;
Mills v.
Duryee, 7 Cranch 481,
11 U. S. 485;
Story, Const. § 1313.
See also Hancock National Bank v.
Farnum, 176 U. S. 640,
176 U. S.
644-645. I find no qualification of the rule in
Wisconsin v. Pelican Ins. Co., 127 U.
S. 265. That merely decided, with regard to a case not
within the words of the Constitution, that a state judgment could
not be sued upon when the facts which it established were not a
cause of action outside the state. It did not decide or even
remotely suggest that the judgment
Page 201 U. S. 633
would not be conclusive as to the facts if in any way those
facts came in question. It is decided as well as admitted that a
decree like that rendered in Connecticut in favor of a deserting
husband is binding in the state where it is rendered.
Maynard
v. Hill, supra. I think it enough to read that case in order
to be convinced that at that time the court had no thought of the
divorce being confined in its effects to the territory where it was
granted, and enough to read
Atherton v. Atherton to see
that its whole drift and tendency now are reversed, and its
necessary consequences denied.