A husband and wife had their matrimonial domicil in Kentucky,
which was the domicil of the husband. She left him there, and
returned to her mother's at Clinton in the State of New York. He
filed a petition against her in a court of Kentucky for a divorce
from the bond of matrimony for her abandonment, which was a cause
of divorce by the laws of Kentucky, and alleged on oath, as
required by the statutes of Kentucky, that she might be found at
Clinton, and that Clinton was the post office nearest the place
where she might be found. The clerk, as required by those statutes,
entered a warning order to the wife to appear in sixty days, and
appointed an attorney at law for her. The attorney wrote to her at
Clinton, advising her of the object of the petition, and enclosing
a copy thereof, in a letter addressed to her by mail at that place,
and having on the envelope a direction to return it to him if not
delivered in ten days. A month later, the attorney, having received
no answer, made his report to the court. Five weeks afterwards, the
court, after taking evidence, granted the husband an absolute
decree of divorce for the wife's abandonment of him.
Held
that this decree was a bar to the wife's petition for a divorce in
New York.
This was a suit brought January 11, 1893, in the Supreme Court
of the State of New York, by Mary G. Atherton against Peter Lee
Atherton, for a divorce from bed and board, for the custody of the
child of the parties, and for the support of the plaintiff and the
child, on the ground of cruel and abusive treatment of the
plaintiff by the defendant. The defendant appeared in the case, and
at a trial by the court without a jury at June term, 1893, the
court found the following facts:
On October 17, 1888, the parties were married at Clinton, Oneida
County, New York, the plaintiff being a resident of that place and
the defendant a resident of Louisville, Kentucky. Immediately after
the marriage, the parties went to and resided at Louisville in the
house with the defendant's parents, had a child born to them on
January 8, 1890, and there continued to reside as husband and wife
until October 3, 1891. Then, owing
Page 181 U. S. 156
to his cruel and abusive treatment, without fault on her part,
she left him, taking the child with her, and in a few days
thereafter, returned to her mother at Clinton, and has ever since
resided there with her mother, and is a resident and domiciled in
the State of New York, and has not lived or cohabited with the
defendant. When she so left him and went to Clinton, she did so
with the purpose and intention of not returning to the Kentucky,
but of permanently residing in the New York, and this purpose and
intention were understood by the defendant at the time, and were
contemplated and evidenced by an agreement entered into at
Louisville, October 10, 1891, by the parties and one Henry P.
Goodenow, under advice of counsel, which is copied in the margin.
* The defendant
continued
Page 181 U. S. 157
to reside in Louisville, and is a resident of the Kentucky.
The defendant, in his answer, besides denying the cruelty
charged, set up a decree of divorce from the bond of matrimony
obtained by him against his wife March 14, 1893, in a court of
Jefferson County, in the State of Kentucky, empowered to grant
divorces, by which
"this action having come on to be heard upon the pleadings,
report of attorney for the absent defendant, and the evidence, and
the court being advised, it is considered
Page 181 U. S. 158
by the court that the plaintiff, Peter Lee Atherton, has resided
in Jefferson County, Kentucky, continuously for ten years last
past, and that he and the defendant, Mary G. Atherton were married
on the 17th day of October, 1888; that, from the date of said
marriage, the said plaintiff and defendant resided in Jefferson
County, Kentucky; that, while the plaintiff and defendant were thus
residing in Jefferson County, Kentucky, to-wit, in the month of
October, 1891, the defendant, Mary G. Atherton, without fault upon
the part of the plaintiff, abandoned him, and that said abandonment
has continued without interruption from that time to this, and at
the filing of the petition herein had existed for more than one
year; that the defendant, Mary G. Atherton, had, at the filing of
the petition herein, been absent from this state for more than four
months; that therefore it is further considered and adjudged by the
court that the plaintiff, Peter Lee Atherton, is entitled to the
decree of divorce prayed for in this petition, and that the bonds
of matrimony between the said plaintiff, Peter Lee Atherton, and
the said defendant, Mary G. Atherton, be and they are hereby
dissolved."
By the record of that decree, duly verified, the following
appeared: on December 28, 1892, the plaintiff filed a petition
under oath, containing the same statements as the decree, and also
stating
"that the said defendant may be found in Clinton, State of New
York, and that in said Clinton is kept the post office which is
nearest to the place where the defendant may be found."
On the same day, pursuant to the requirements of the statutes of
Kentucky, the clerk made an order warning the defendant to appear
within sixty days and answer the petition,
Page 181 U. S. 159
and appointing John C. Walker, an attorney of the court, to
defend for her and in her behalf and to inform her of the nature
and pendency of the suit. On February 9, 1893, Walker filed his
report in which he stated:
"On this, the 5th day of January, 1893, I wrote to said
defendant, Mary G. Atherton at Clinton, in the State of New York,
fully advising her of the objects and purposes of this action,
stating therein a substantial copy of the petition, etc., plainly
directed said letter to her at said place, paid the postage, had
printed on the envelope enclosing it, 'If not delivered in ten
days, return to Jno. C. Walker, attorney at law, No. 516 West
Jefferson Street, Louisville, Ky.' Said letter has not been
returned to me. I have received no answer thereto from said
defendant or anyone else for her, and do not know, nor am I
advised, of any defense to make for her, and make none, only that
which the law in such cases makes for nonresident defendants."
The agreement of October 10, 1891, before mentioned, and certain
depositions, set forth in full, taken at various dates from
February 23 to March 3, 1893, were filed in the cause in Kentucky
before the hearing.
It was agreed that either party might refer to any statute of
the State of Kentucky or decision of its courts.
The Supreme Court of New York found that the wife
"was not personally served with process within the State of
Kentucky, or at all, nor did she in any manner appear, or authorize
an appearance for her, in the said action and proceeding,"
and that, before the commencement of that suit and ever since,
she had ceased to be a resident of Kentucky, and had become and was
a resident of the State of New York, domiciled and residing in
Clinton, with her child.
The court decided that the decree in Kentucky was inoperative
and void as against the wife, and no bar to this action, and gave
judgment in her favor for a divorce from bed and board, and for the
custody of the child, and for the support of herself and the
child.
That judgment was affirmed by the general term of the Supreme
Court of New York, and by the Court of Appeals of the state. 82
Hun. 179, 155 N.Y. 129.
Page 181 U. S. 160
The defendant sued out this writ of error on the ground that the
judgment did not give full faith and credit to the decree of the
court in Kentucky, as required by the Constitution and laws of the
United States.
MR. JUSTICE GRAY, after stating the case as above, delivered the
opinion of the Court.
The first section of the fourth article of the Constitution of
the United States is as follows:
"Full faith and credit shall be given in each state to the
public acts, records, and judicial proceedings of every other
state, and the Congress may, by general laws, prescribe the manner
in which such acts, records, and proceedings shall be proved, and
the effect thereof."
This section was intended to give the same conclusive effect to
the judgment of all the states, so as to promote certainty and
uniformity in the rule among them. And Congress, in the exercise of
the power so conferred, besides prescribing the manner in which the
records and judicial proceedings of any state may be authenticated,
has defined the effect thereof by enacting that
"the said records and judicial proceedings so authenticated
shall have such faith and credit given to them in every court
within the United States as they have by law or usage in the courts
of the state from which they are taken."
Rev.Stat. section 905, reenacting Act of May 26, 1790, c. 11, 1
Stat. 122;
Huntington v. Attrill, (1892)
146 U.
S. 657,
146 U. S.
684.
By the General Statutes of Kentucky of 1873, c. 52, art. 3,
courts of equity may grant a divorce for abandonment by one party
of the other for one year; petitions for divorce must be brought in
the county where the wife usually resides, if she has an actual
residence in the state; if not, then in the County of the husband's
residence, and shall not be taken for confessed,
Page 181 U. S. 161
or be sustained by confessions of the defendant alone, but must
be supported by other proofs.
By the Civil Code of Practice of Kentucky of 1876, tit. 4, c. 2,
art. 2, if a defendant has been absent from the state four months,
and the plaintiff files an affidavit stating in what country the
defendant resides or may be found, and the name of the place
wherein a post office is kept nearest to the place where the
defendant resides or may be found, the clerk may make an order
warning the defendant to defend the action within sixty days, and
shall at the same time appoint, as attorney for the defendant, a
regular practicing attorney of the court, whose duty it shall be to
make diligent efforts to inform the defendant by mail concerning
the pendency and nature of the action against him, and to report to
the court the result of his efforts, and a defendant against whom a
warning order is made and for whom an attorney is appointed is
deemed to have been constructively summoned on the thirtieth day
thereafter, and the action may proceed accordingly.
In accordance with these statutes, on December 28, 1892, the
husband filed in a proper court of Kentucky a petition, under oath,
for a divorce from the bond of matrimony, alleging his wife's
abandonment of him ever since October, 1891, and that she had been
absent from the state for more than four months, and might be found
at Clinton, in the State of New York, and that in Clinton was kept
the post office nearest the place where she might be found, and the
clerk entered a warning order, and appointed an attorney at law for
the defendant. On January 5, 1893, that attorney wrote to the wife
at Clinton, fully advising her of the object of the petition for
divorce and enclosing a copy thereof in a letter addressed to her
by mail at that place and having printed on the envelope a
direction to return it to him if not delivered within ten days. On
February 6, 1893, the attorney, not having received that letter
again or any answer from the defendant or in her behalf, made his
report to the court. And on March 14, 1893, the court, after taking
evidence, including an agreement made by the parties in Kentucky,
October 10, 1891, as to the domicil, custody, and support
Page 181 U. S. 162
of their child, granted to the husband an absolute divorce for
his wife's abandonment of him.
There can be no doubt that this decree was, by law and usage,
entitled to full faith and credit as an absolute decree of divorce
in the State of Kentucky. The Court of Appeals of that state has
held that, under its statutes, a wife residing in the state was
entitled to obtain a decree of divorce against a husband who had
left the state, or who had never been within it, and Chief Justice
Robertson said:
"It would be a reproach to our legislation if a faithless
husband in Kentucky could, by leaving the state, deprive his
abandoned, wife of a power of obtaining a divorce at home."
Rhyms v. Rhyms, (1870) 7 Bush, 316;
Perzel v.
Perzel, (1891) 91 Ky. 634. That court has recognized that the
regulation of divorce belongs to the legislature of the domicil of
the parties.
Maguire v. Maguire, (1838) 7 Dana 181,
185-187. And the same court, where husband and wife had lived
together in Kentucky, and she abandoned him, and he became a
bona fide citizen of Indiana, held that a divorce from the
bonds of matrimony, obtained by him against the wife in that state,
by proceedings on constructive service and according to the laws of
that state, determined the status of the parties in Kentucky.
Hawkins v. Ragsdale, (1882) 80 Ky. 353.
There is a weight of authority in accord with the views
maintained by the Court of Appeals of Kentucky, although there are
some decisions of learned courts to the contrary.
The purpose and effect of a decree of divorce from the bond of
matrimony by a court of competent jurisdiction are to change the
existing status or domestic relation of husband and wife, and to
free them both from the bond. The marriage tie, when thus severed
as to one party, ceases to bind either. A husband without a wife,
or a wife without a husband, is unknown to the law. When the law
provides, in the nature of a penalty, that the guilty party shall
not marry again, that party, as well as the other, is still
absolutely freed from the bond of the former marriage.
The rule as to the notice necessary to give full effect to a
Page 181 U. S. 163
decree of divorce is different from that which is required in
suits
in personam.
In
Pennoyer v. Neff, (1877)
95 U. S.
714,
95 U. S. 734,
this Court, speaking by Mr. Justice Field, while deciding that a
judgment of a state court on a debt could not be supported without
personal service on the defendant within the state or his
appearance in the cause, took occasion to say:
"To prevent any misapplication of the views expressed in this
opinion, it is proper to observe that we do not mean to assert by
anything we have said that a state may not authorize proceedings to
determine the status of one of its citizens towards a nonresident,
which would be binding within the state, though made without
service of process or personal notice to the nonresident. The
jurisdiction which every state possesses to determine the civil
status and capacities of all its inhabitants involves authority to
prescribe the conditions on which proceedings affecting them may be
commenced and carried on within its territory. The state, for
example, has absolute right to prescribe the conditions upon which
the marriage relation between its own citizens shall be created,
and the causes for which it may be dissolved. One of the parties,
guilty of acts for which, by the law of the state, a dissolution
may be granted, may have removed to a state where no dissolution is
permitted. The complaining party would therefore fail if a divorce
were sought in the state of the defendant, and if application could
not be made to the tribunals of the complainant's domicil in such
case, and proceedings be there instituted without personal service
of process or personal notice to the offending party, the injured
citizen would be without redress. 2 Bishop on Marriage and Divorce
§ 156."
In
Cheely v. Clayton, (1884)
110 U.
S. 701, which involved the validity of a decree of
divorce obtained in Colorado by a husband domiciled there against
his wife for unjustifiably refusing to live with him, this Court
said:
"The courts of the State of the domicil of the parties doubtless
have jurisdiction to decree a divorce in accordance with its laws,
for any cause allowed by those laws, without regard to the place of
the marriage or to that of the commission of the offense for which
the divorce is granted, and a divorce so obtained is valid
everywhere.
Page 181 U. S. 164
Story on Conflict of Laws § 230
a;
Cheever v.
Wilson, 9 Wall. 108;
Harvey v. Farnie, 8
App.Cas. 43. 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.
Burlen v. Shannon, 115 Mass. 438,;
Hunt v. Hunt, 72 N.Y. 218. But in order to make the
divorce valid either in the state in which it is granted or in
another state, there must, unless the defendant appeared in the
suit, have been such notice to her as the law of the first state
requires."
110 U.S.
110 U. S. 705.
In that case, the decree of divorce was held void because the
notice required by the laws of the state had not been given, and
the finding of the court below that the wife, at the time of the
proceedings for divorce, was a citizen and resident of the State of
Illinois was given no weight, because, as this Court said, it was
hard to see how, if she unjustifiably refused to live with her
husband in Colorado, she could lawfully acquire in his lifetime a
separate domicil in another state, or how, if the Colorado court
had jurisdiction to render the decree of divorce, and did render it
upon the ground of her unlawful absence from him, the finding of
the court below could consist with the fact so adjudged in the
decree of divorce. 110 U.S.
110 U. S.
709.
In
Harding v. Alden, (1832) 9 Me. 140, the husband and
wife lived together in Maine. He deserted her and took up a
residence in North Carolina, and there married and lived with
another woman. The first wife then moved to and resided in
Providence, Rhode Island, and there filed a libel in the Supreme
Judicial Court for an absolute divorce against him for his
desertion and adultery, and the court, after service of a citation
on him, and two continuances of the cause, decreed a divorce as
prayed for. The husband was never an inhabitant of Rhode Island.
The wife afterwards married another man. The Supreme Judicial Court
of Maine, in an opinion delivered by Mr. Justice Weston, held that
the divorce in Rhode Island dissolved the bond of marriage between
the parties, and said:
Page 181 U. S. 165
"If we refuse to give full faith and credit to the decree of the
Supreme Judicial Court of Rhode Island because the party libeled
had his domicil in another state and was not within their
jurisdiction, we refuse to accord to the decrees of that court the
efficacy we claim for our own when liable to the same objection. In
the case before us, it is agreed that the party injured was at the
time an inhabitant of Rhode Island, residing in Providence, and
this fact is recited in the decree. It appears that, by order of
court, a citation was served upon the defendant in person, and that
a continuance was twice granted, to give him an opportunity to
appear in defense. This shows a due regard to that principle of
justice which gives to the party accused the right to be heard. The
decree was rendered by the highest judicial tribunal in that state.
As it belongs to that tribunal to declare, authoritatively and
definitively, what the law of the state is, we are bound to infer
that, by that law, the bonds of matrimony previously existing
between the libellant and her former husband were thereby
dissolved, and that such is the effect of the decree within the
State of Rhode Island."
9 Me. 148.
"There would be great inconvenience in holding that a divorce
decreed in the state where the injured party resided might not be
held valid through the Union, where the right of citizenship is
common, where the party accused had established his domicil in
another state, and there committed adultery. And this is the only
objection to the efficacy of the decree in question, it being
insisted that the court had no jurisdiction over the absent party.
As has been before intimated, it would apply with equal force to
many divorces decreed in this state. It would require that the
wife, abandoned and dishonored, should seek the new domicil of the
guilty husband,
animo manendi, before she could claim the
benefit of the law to be relieved from his control. In giving
effect here to the divorce decreed in Rhode Island, we would wish
to be understood that the grounds upon which we place our decision
is limited to the dissolution of the marriage. In the libel,
alimony was prayed for, and certain personal property then in the
possession of the wife was decreed to her. Had the court awarded
her a gross sum, or a weekly
Page 181 U. S. 166
or an annual allowance, to be paid by the husband, and the
courts of this or any other state had been resorted to to enforce
it, a different question would be presented."
9 Me. 151.
Chancellor Kent, in his Commentaries, says of that case that it
was there held
"that a decree of divorce did not fall within the rule that a
judgment rendered against one not within the state, nor bound by
its laws, nor amenable to its jurisdiction, was not entitled to
credit against the defendant in another state, and that divorces
pronounced according to the law of one jurisdiction, and the new
relations thereupon formed, ought to be recognized, in the absence
of all fraud, as operative and binding everywhere,
so far as
related to the dissolution of the marriage, though not as to
other parts of the decree, such as an order for the payment of
money by the husband."
And the Chancellor adds, "This is an important and valuable
decision." 2 Kent, Com. 110, note.
In
Ditson v. Ditson, (1856) 4 R.I. 87 (of which Judge
Cooley, in his Treatise on Constitutional Limitations, 403, note,
says there in no case in the books more full and satisfactory upon
the whole subject of jurisdiction in divorce suits), the Supreme
Court of Rhode Island, in an elaborate opinion by Chief Justice
Ames, affirmed its jurisdiction, upon constructive notice by
publication, to grant a divorce to a wife domiciled in Rhode Island
against a husband who had never been in Rhode Island, and whose
place of residence was unknown, and said:
"It is obvious that marriage, as a domestic relation, emerged
from the contract which created it is known and recognized as such
throughout the civilized world; that it gives rights and imposes
duties and restrictions upon the parties to it, affecting their
social and moral condition, of the measure of which every civilized
state, and certainly every state of this Union, is the sole judge,
so far as its own citizens or subjects are concerned, and should be
so deemed by other civilized and especially sister states; that a
state cannot be deprived, directly or indirectly, of its sovereign
power to regulate the status of its own domiciled subjects and
citizens by the fact that the subjects and citizens of other
states, as related to them, are interested in that status, and in
such a matter has a right, under the general law,
Page 181 U. S. 167
judicially to deal with and modify or dissolve this relation,
binding both parties to it by the decree, by virtue of its inherent
power over its own citizens and subjects, and to enable it to
answer their obligatory demands for justice, and finally that, in
the exercise of this judicial power and in order to the validity of
a decree of divorce, whether
a mensa et thoro or
a
vinculo matrimonii, the general law does not deprive a state
of its proper jurisdiction over the condition of its own citizens,
because nonresidents, foreigners, or domiciled inhabitants of other
states have not or will not become, and cannot be made to become,
personally subject to the jurisdiction of its courts; but, upon the
most familiar principles, and as illustrated by the most familiar
analogies of general law, its courts may and can act conclusively
in such a matter upon the rights and interests of such persons,
giving to them such notice, actual or constructive, as the nature
of the case admits of, and the practice of courts in similar cases
sanctions."
4 R.I. 105, 106.
The statutes of Massachusetts provided as follows:
"When an inhabitant of this state goes into another state or
country to obtain a divorce for any cause occurring here and while
the parties resided here, or for any cause which would not
authorize a divorce by the laws of this state, a divorce so
obtained shall be of no force or effect in this state. In all other
cases, a divorce decreed in any other state or country according to
the laws thereof, by a court having jurisdiction of the cause and
both the parties, shall be valid and effectual in this state."
That provision made no change in the law, but, in the words of
the commissioners upon whose advice it was first enacted,
"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."
Gen.Stat. 1860, c. 107, §§ 54, 55; Rev.Stat. 1836, c. 76, §§ 39,
40, and note of commissioners;
Ross v. Ross, 129 Mass.
243, 248.
In
Hood v. Hood, (1865) 11 Allen 196, the husband and
wife, after living together in Massachusetts, removed to Illinois,
and there lived together, the wife, "under circumstances as to
which there was no evidence," and afterwards the husband
Page 181 U. S. 168
came back to Massachusetts and, while they were living there in
his brother-in-law's house for a few weeks, he signed an agreement
reciting that they had separated, and promising to pay her a
certain weekly sum so long as she should remain single. She
continued to reside in Massachusetts, and he obtained in Illinois a
decree of divorce from her for her desertion, upon such notice as
the laws of Illinois authorized in the case of an absent defendant.
It was held by the Supreme Judicial Court of Massachusetts, in an
opinion delivered by Mr. Justice Hoar, 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
settle between the parties by the decree in Illinois, and it was
not competent for the wife to contradict it on a libel afterwards
filed by her in Massachusetts, and her libel was dismissed. And in
Hood v. Hood, (1872) 110 Mass. 463, it appearing that such
dismissal was upon the ground of the validity of the previous
decree of divorce in Illinois, it was adjudged that that decree
could not be impeached by the wife in a writ of dower by her
against third persons, the court saying:
"The decree in favor of her husband, dismissing her libel, was
then forever conclusive against her, as between themselves. It
severed the relation between them, or rather estopped her from
averring anything to the contrary of the decree in Illinois which
purported to sever that relation. The general rule, however, in
regard to estoppels of record is that they are good only between
the parties of record and their privies. They cannot be set up in
collateral proceedings between one of those parties and third
persons. But the effect of the judgment in this case was to
determine the status of the demandant. So far as it did that, it is
a judgment that is operative and conclusive as to all the
world."
The like view has been affirmed by courts of other states.
Thompson v. State, (1856) 28 Ala. 13;
Leith v.
Leith, (1859) 39 N.H. 20, 39-43;
Shafer v. Bushnell,
(1869) 24 Wis. 372;
Gould v. Crow, (1874) 57 Mo. 200;
Van Orsdal v. Van Orsdal, (1885) 67 Ia. 35;
Smith v.
Smith, (1891) 42 La.Ann. 1140;
In re James, (1893) 99
Cal. 374;
Dunham v. Dunham, (1896) 162 Ill. 589,
607-610.
Page 181 U. S. 169
In
Shaw v. Shaw, (1867) 98 Mass. 158, the husband and
wife, domiciled in Massachusetts, left the state to take up their
residence in Colorado. In Pennsylvania, on the journey, he treated
her with extreme cruelty, and she left him and returned to
Massachusetts, and continued to reside there. It was held that,
while they were in Pennsylvania, the domicil of both parties
remained in Massachusetts, and that the wife might maintain a libel
in Massachusetts for the cause occurring in Pennsylvania, although
the husband, before it occurred, had left Massachusetts with the
intention of never returning, and never did in fact return, and
therefore no notice was or could be served upon him in
Massachusetts.
In a very recent case, the Court of Errors and Appeals of New
Jersey maintained the validity of a divorce obtained in the State
of Utah by a husband having his
bona fide domicil there,
against a wife whose domicil was in New Jersey, after publication
of the process and complaint in accordance with the statutes of
Utah, and personal service upon the wife in New Jersey in time to
enable her to make defense, if she wished to do so. Mr. Justice
Gummere, speaking for the Court of Errors and Appeals, said that at
least
"interstate comity requires that a decree of divorce, pronounced
by a court of the state in which the complainant is domiciled, and
which has jurisdiction of the subject matter of the suit, shall, in
the absence of fraud, be given full force and effect within the
jurisdiction of a sister state, notwithstanding that the defendant
does not reside within the jurisdiction of the court which
pronounced the decree, and has not been served with process
therein; provided that a substituted service has been made in
accordance with the provisions of the statute of that state, and
that actual notice of the pendency of the suit has been given to
the defendant, and a reasonable opportunity afforded to put in a
defense thereto, and provided further that the ground upon which
the decree rests is one which the public policy of the state in
which it is sought to be enforced recognizes as a sufficient cause
for divorce."
Felt v. Felt, (1899) 14 Dickinson (59 N.J.Eq.).
In New York, North Carolina, and South Carolina, the opposite
view has prevailed, either upon the ground that the rule
Page 181 U. S. 170
as to notice is the same in suits for divorce as in ordinary
suits
in personam, or upon the ground that, in the absence
of actual notice or appearance, the decree, while it may release
the libellant, cannot release the libellee from the bond of
matrimony.
People v. Baker, (1879) 76 N.Y. 78;
O'Dea
v. O'Dea, (1885) 101 N.Y. 23;
In re Kimball, (1898)
155 N.Y. 62;
Irby v. Wilson, (1837) 1 Dev. & Bat.Eq.
568;
McCreery v. Davis, (1894) 44 S.C.195.
In
People v. Baker, 76 N.Y. 78, upon which the
subsequent decisions in New York are based, the defendant was
married to a woman in the State of Ohio; they afterwards lived
together in the State of New York; the wife, upon notice by
publication, and without personal appearance of the husband, he
being in New York, obtained a decree of divorce against him in
Ohio, and he afterwards married another woman in New York, and was
convicted of bigamy there. The conviction was affirmed by the Court
of Appeals, without a suggestion that the first wife was not
domiciled in Ohio at the time of the divorce, but stating the
question in the case to be:
"Can a court, in another state, adjudge to be dissolved and at
an end the matrimonial relation of a citizen of this state,
domiciled and actually abiding here throughout the pendency of the
judicial proceedings there, without a voluntary appearance by him
therein, and with no actual notice to him thereof, and without
personal service of process on him in that state?"
The court admitted that
"if one party to a proceeding is domiciled in a state, the
status of that party, as affected by the matrimonial relation, may
be adjudged upon and confirmed or changed in accordance with the
laws of that state,"
but held that, without personal appearance or actual notice, the
decree could not affect the matrimonial relation of the defendant
in another state. The court recognized that the law was settled
otherwise in some states, and said:
"It remains for the Supreme Court of the United States, as the
final arbiter, to determine how far a judgment rendered in such a
case, upon such substituted service of process, shall be operative
without the territorial jurisdiction of the tribunal giving
it."
The authorities above cited show the wide diversity of
opinion
Page 181 U. S. 171
existing upon this important subject, and admonish us to confine
our decision to the exact case before us.
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 husband always had his domicil in Kentucky, and the
matrimonial domicil of the parties was in Kentucky. On December 28,
1892, the husband filed his petition for a divorce in the court of
appropriate jurisdiction in Kentucky, alleging an abandonment of
him by the wife in Kentucky, and a continuance of that abandonment
for a year, which was a cause of divorce by the laws of Kentucky.
His petition truly stated, upon oath, as required by the statutes
of Kentucky, that the wife might be found at Clinton in the State
of New York, and that at Clinton was the post office nearest the
place where she might be found. As required by the statutes of
Kentucky, the clerk thereupon entered a warning order to the wife
to appear in sixty days, and appointed an attorney at law to
represent her. The attorney, on January 5, 1893, wrote to the wife
at Clinton, fully advising her of the object of the petition for
divorce and enclosing a copy thereof in a letter addressed to her
by mail at Clinton, and having printed on the envelope a direction
to return it to him if not delivered in ten days. There is a
presumption of fact, though not of law, that a letter put into the
post office, and properly addressed, is received by the person to
whom it is addressed.
Rosenthal v. Walker, (1884)
111 U. S. 185. On
February 6, 1893, the attorney, having received no answer, made his
report to the court. And on March 14, 1893, the court, after taking
evidence, granted the husband an absolute decree of divorce for his
wife's abandonment of him.
The court of New York has indeed found that the wife "was
Page 181 U. S. 172
not personally served with process within the State of Kentucky,
or at all." It may be doubted whether this negatives her having
received or had knowledge of the letter sent to her by the attorney
in Kentucky, January 5, 1893, six days before she began her suit in
New York. But assuming that it does, the question in this case is
not whether she had actual notice of the proceedings for divorce,
but whether such reasonable steps had been taken to give her notice
as to bind her by the decree in the State of the domicil.
The court in New York found that the wife left the husband and
went to Clinton with the purpose and intention of not returning to
the State of Kentucky, but of permanently residing in the State of
New York, and that this purpose and intention were understood by
the husband at the time, and were contemplated and evidenced by the
agreement executed by the parties in Kentucky, October 10, 1891.
But that agreement was among the proofs submitted to the court in
Kentucky, and may well have been considered by that court, as the
preamble to the agreement states, as simply intended to provide for
the interest of their child, recognizing that the parties had
ceased to live together as husband and wife, but
"without in any way acknowledging upon whom is the fault, or
condoning the conduct of the one or the other which has led to the
existing state of affairs, or preventing any consequences which may
follow, or right which may arise to either party if such status
shall continue."
The agreement contains no mention of the domicil of either
husband or wife, but declares that the domicil of the child is to
be the State of Kentucky, and is taken up with providing that its
custody shall be half of each year with the mother and the other
half with the paternal grandmother, and with providing for the
support and custody of the child in various future contingencies,
including the divorce and second marriage of the husband or of the
wife.
We are of opinion that the undisputed facts show that such
efforts were required by the statutes of Kentucky, and were
actually made, to give the wife actual notice of the suit in
Kentucky, as to make the decree of the court there, granting a
divorce upon the ground that she had abandoned her husband,
Page 181 U. S. 173
as binding on her as if she had been served with notice in
Kentucky, or had voluntarily appeared in the suit. Binding her to
that full extent, it established beyond contradiction that she had
abandoned her husband, and precludes her from asserting that she
left him on account of his cruel treatment.
To hold otherwise would make it difficult, if not impossible,
for the husband to obtain a divorce for the cause alleged, if it
actually existed. The wife not being within the State of Kentucky,
if constructive notice, with all the precautions prescribed by the
statutes of that state, were insufficient to bind her by a decree
dissolving the bond of matrimony, the husband could only get a
divorce by suing in the state in which she was found, and by the
very fact of suing her there, he would admit that she had acquired
a separate domicil (which he denied), and would disprove his own
ground of action -- that she had abandoned him in Kentucky.
The result is that the courts of New York have not given to the
Kentucky decree of divorce the faith and credit which it had by law
in Kentucky, and that therefore their
Judgments must be reversed, and the case remanded to the
Supreme Court of New York for further proceedings not inconsistent
with this opinion.
*
"The undersigned, Peter Lee Atherton, and his wife, Mary G.
Atherton, having ceased to live together as man and wife, without
in any way acknowledging upon whom is the fault or condoning the
conduct of the one or the other which has led to the existing state
of affairs, or preventing any consequence which may follow or right
which may arise to either party if such status shall continue,
desire to provide for the best interest of their child, Mary
Valeria Atherton. With this view they have entered into the
following agreement:"
"Peter Lee Atherton, contracting with Henry P. Goodenow as
trustee for Mary G. Atherton, and said trustee contracting with
Peter Lee Atherton on behalf and jointly with Mary G.
Atherton."
"1. The child is hereby committed for its nurture, education and
control to the joint custody and guardianship of her mother, Mary
G. Atherton, and her paternal grandmother, Maria B. Atherton, on
the following basis:"
"The domicil of the child is to be the State of Kentucky. The
mother is to have the child until January 1, 1892. During the years
1892, 1893 and 1894, the grandmother is to have the child and
control its abode, travel and custody from January 1st to the first
week in May, and the mother from the first week in May to December
31st. After that period, during the existence of this arrangement,
the grandmother's custody, control, etc., is to exist during the
first four and last two months of the year, that of the mother
during the other months of the year."
"2. During that part of each year in which the child is under
the control of the mother, Peter Lee Atherton is to pay into the
hands of Mary G. Atherton $500 in installments of equal amounts at
the beginning of each of the months of said control, for the
comfortable maintenance of the child. During the rest of each year,
he is to himself, at his sole expense, provide for the support of
the child. The expense of conveying the child, with a proper
attendant in the journey, to the mother, Mary G. Atherton, is to be
borne by the father, Peter Lee Atherton, and the like expense, on
the journey back to the grandmother, is to come out of the sum
provided for the child's support."
"3. Peter Lee Atherton is to pay into the hands of Mary G.
Atherton for her support $125 at the beginning of each month, until
this agreement does by its own terms end. This is to be taken in
lieu of alimony and dowable and distributable share in his
estate."
"4. The following provisions are made for the termination of
this agreement, and for the contingency of various events that may
happen in the future -- among others, divorce and second marriage
of Peter Lee Atherton or Mary G. Atherton."
"
a. This agreement as to the child is to terminate on
her arrival at fourteen years of age, it being recognized that she
will then be old enough to choose for herself. It shall, of course,
in like manner terminate at her death."
"
b. This agreement as to the support of Mary G.
Atherton is to end at her death, or upon her again marrying, and,
in any event, on the 8th day of January 1904."
"
c. If Mary G. Atherton shall marry again or die, the
person then being joint guardian with her of the child shall become
its sole guardian. If Maria B. Atherton shall die while she is
joint guardian, Peter Lee Atherton, if alive, or if he be dead, his
father, John M. Atherton, shall choose a successor in the joint
guardianship, and if Mary G. Atherton objects to the person so
nominated, the senior (in years) judge of the Jefferson Circuit
Court shall decide the question of fitness, and confirm or reject
such nomination."
"
d. A successor to said successor may under similar
circumstances be in like manner chosen."
"
e. If, during the existence of this agreement, Mary G.
Atherton being then joint guardian, John M. Atherton and Maria B.
Atherton shall die, and Peter Lee Atherton die or be or become
married, the sole guardianship shall rest in said Mary G.
Atherton."
"
f. If, during the lives of Peter Lee Atherton and Mary
G. Atherton, a sole guardianship shall have resulted under the
terms of this agreement, each parent shall have reasonable access
to and right of visitation from the child, notwithstanding such
parent may have again married."
"
g. If a divorce shall be granted, this agreement, so
far as it concerns provision for Mary G. Atherton, shall be carried
into the decree, as in full satisfaction of all claim for alimony,
and, so far as concerns provision for and custody of the child,
reserving to the court the usual power to provide against events
and contingencies not covered by this agreement."
"Witness the signatures of all the parties this October 10th,
1891."
"Henry P. Goodenow"
"Mary G. Atherton"
"Peter Lee Atherton"
MR. JUSTICE PECKHAM, dissenting:
I think this case was rightly decided by the Court of Appeals of
New York, and I therefore dissent from the judgment and the opinion
of the court herein.
I think if the husband had, at his domicil in Kentucky, been
guilty of such misconduct and cruelty towards his wife as entitled
her to a divorce, she had a legal right for that reason to leave
him and to acquire a separate domicil, even in another state. If
under such circumstances she did leave him, and did acquire a
separate domicil in New York state, the Kentucky court did not
obtain jurisdiction over her as an absent defendant, by publication
of process or sending a copy thereof through the mail to her
address in New York.
Page 181 U. S. 174
It has long been held that the wife upon such facts could
acquire a separate domicil. In
Cheever v.
Wilson, 9 Wall. 108,
76 U. S.
123-124, it was so decided, and the case of
Ditson
v. Ditson, 4 R.I. 87, was therein cited with approval upon
that proposition. It was said in the Rhode Island case that,
"although, as a general doctrine, the domicil of the husband is
by law that of the wife, yet, when he commits an offense, or is
guilty of such dereliction of duty in the relation as entitles her
to have it [the marriage] either partially or totally dissolved,
she not only may, but must, to avoid condonation, establish a
separate domicil of her own. This she may establish -- nay, when
deserted, or compelled to leave her husband, necessity frequently
compels her to establish -- in a different judicial or state
jurisdiction than that of her husband, according to the residence
of her family or friends. Under such circumstances she gains, and
is entitled to gain, for the purposes of jurisdiction, a domicil of
her own."
This is also held in
Hunt v. Hunt, 72 N.Y. 217, where
many of the authorities are collected.
By the statute of New York in force at the time the parties were
therein married, the court had jurisdiction to grant a limited
divorce on the complaint of a married woman, where the marriage had
been solemnized in the state, and the wife was an actual resident
therein at the time of exhibiting her complaint. By virtue of this
statute and of the wife's residence in New York at the time of
exhibiting her complaint (if such residence were legally acquired,
as already stated), the court in that state had jurisdiction of an
action for divorce against her husband, and jurisdiction over the
husband was complete when he appeared in the suit. Having the right
to acquire a residence in the state, it was open to her to prove in
the divorce case which she instituted in New York the facts which
justified her leaving her husband's home in Kentucky and in
acquiring a separate domicil in New York, and the decision of the
Kentucky court that it had jurisdiction over her in her husband's
suit was not conclusive against her upon that question. The New
York court entered upon the inquiry and found the fact that she was
justified by her husband's acts in leaving his home and in
acquiring a new domicil for herself, and that the Kentucky
court
Page 181 U. S. 175
therefore obtained no jurisdiction over her. It also found the
facts necessary to warrant it in granting to her a divorce under
the laws of New York, and it granted one accordingly. This I think
the New York court had jurisdiction to do, and it did not thereby
refuse the constitutional full faith to the Kentucky judgment.
That a husband can drive his wife from his home by conduct which
entitles her to a divorce, and thus force her to find another
domicil, and then commence proceedings in a court of his own
domicil for a divorce, which court obtains jurisdiction over her
only by a service of process in the state of her new domicil,
through the mail, and that, on such service he can obtain a
judgment of divorce which shall be conclusive against her in her
action in the court of her own domicil seems to me to be at war
with sound principle and the adjudged cases. The doctrine of
status, even as announced in the opinion of the Court, does not
reach the case of a husband, by his misconduct, rendering it
necessary for the wife to leave him. I therefore dissent.
I am authorized to state that THE CHIEF JUSTICE concurs in this
dissent.