1. Under Art. IV, § 1, of the Constitution and R.S. § 905, a
decree of a court of Virginia is entitled to the same faith and
credit in the courts of the District of Columbia as it has by law
or usage in the courts of Virginia. P.
305 U. S.
39.
2. Whether the matrimonial domicil is the domicil of the husband
depends upon the facts and circumstances of the case. P.
305 U. S.
41.
3. A husband obtained, on the ground of cruelty, a decree of
separation from his wife in the District of Columbia, where both
resided. The decree gave her custody of one child and monthly
alimony. Some years later, the husband established his residence in
Virginia and sued in a Virginia court for absolute divorce on the
ground of desertion. Notice was served personally on the wife in
the District of Columbia, where she continued to reside, and she
filed in the Virginia court a plea stating that she appeared there
"specially and for no other purpose than to file this plea to the
jurisdiction of the court." The plea alleged that neither she nor
the husband had been a resident of Virginia for a year before
commencement of the suit, and asserted that he was not then a
bona fide resident there, but that the residence he was
attempting to establish was for the sole purpose of creating
jurisdiction in the court to hear and determine the suit for
divorce, and was therefore a fraud upon the court, and not
residence in contemplation of law. It prayed judgment whether the
court "can or will take any further cognizance of the action
aforesaid." There was a decree of reference to a commissioner to
ascertain and report whether the court had jurisdiction and whether
a divorce should be granted, the decree reciting,
inter
alia, that counsel had been heard in argument. The
commissioner reported that, by stipulation of counsel, he had
limited his inquiry to the jurisdiction; that he had taken all the
testimony submitted by the parties, and that, in his opinion, the
husband was a
bona fide resident of Virginia, and that the
court had jurisdiction to hear and determine the cause. There was a
hearing upon the wife's exceptions to the report, after which the
court found that the husband had been a resident of the Virginia
county for the requisite time, and that it had jurisdiction of the
subject
Page 305 U. S. 33
matter and of the parties, and confirmed the report. The court
granted the wife further time in which to appeal or to answer, but
she did neither. The cause proceeded, and there was a final decree
of absolute divorce upon the ground of willful desertion, with an
allowance for support of the child, but no alimony for the wife,
the decree reciting that there had been a hearing upon specified
papers and depositions taken before a commissioner pursuant to
notice served in the county, on counsel who had entered special
appearance for respondent, and upon her personally in the District
of Columbia.
Held:
(a) Construing the wife's appearance as special, she was
nevertheless bound by the finding of the Virginia court on
residence and jurisdiction, and the decree was enforceable in the
courts of the District of Columbia.
Haddock v. Haddock,
201 U. S. 562,
distinguished. P.
305 U. S.
40.
(b) The wife's participation in the Virginia litigation was such
as to amount to a general appearance. P.
305 U. S.
42.
No question is presented in this case as to the power of the
District of Columbia court over alimony.
96 F.2d 512 reversed.
On certiorari, 304 U.S. 552, to review a decree refusing
recognition to a Virginia decree of absolute divorce secured by a
husband who changed his residence to that State from the District
of Columbia.
Page 305 U. S. 35
MR. JUSTICE BUTLER delivered the opinion of the Court.
The lower court held a decree of the circuit court of Arlington
County, Virginia, entered June 26, 1929, granting petitioner an
absolute divorce from respondent upon the ground of desertion not
entitled to recognition in the supreme (now district) court of the
District of Columbia. The question arose upon his application to
that court to set aside or modify a decree it entered October 29,
1925, granting him divorce
a mensa et thoro from
respondent on the ground of cruelty.
In the District of Columbia, absolute divorce was not then
permitted for desertion or cruelty. [
Footnote 1] In Virginia, absolute divorce was authorized
where either party willfully deserted or abandoned the other for
three years. [
Footnote 2] The
circuit courts there have jurisdiction over suits for divorce and
alimony. No suit for divorce is maintainable unless one of the
parties has been domiciled in the State for at least a year
preceding its commencement. [
Footnote 3]
Petitioner and respondent married in 1909, and, until about the
time he brought the suit for limited divorce, lived together in the
District of Columbia. They had a son and daughter. The decree of
separation awarded to him custody of the son, to her custody of the
daughter, and
Page 305 U. S. 36
directed him to pay $300 a month for support of wife and
daughter.
Petitioner's complaint in the Virginia court alleged that he was
a resident of that State for the requisite time, showed that
respondent was a resident of the District of Columbia, fully
disclosed the proceedings and decree in the District court, and
alleged continuous desertion commencing before and extending for
more than three years after entry of that decree. Process of the
Virginia court was served personally upon the respondent in the
District of Columbia. She filed a plea stating that she appeared
"specially and for no other purpose than to file this plea to the
jurisdiction of the court." In that document, she alleged that
neither she nor petitioner had been a resident of Virginia for a
year before commencement of the suit, and asserted that he was not
then a
bona fide resident there, but that the residence he
was attempting to establish was for the sole purpose of creating
jurisdiction in the court to hear and determine the suit for
divorce, and was therefore a fraud upon the court, and not
residence in contemplation of law. The plea prayed judgment whether
the court "can or will take any further cognizance of the action
aforesaid."
The court entered a decree reciting that the cause came on for
hearing upon the complaint, exhibits, other papers, and "argument
of counsel," and referring the cause to a commissioner in chancery
to ascertain and report whether the court had jurisdiction to hear
and determine it and whether a decree of divorce should be entered.
The commissioner reported that, "by stipulation of counsel, it was
agreed" that he should only ascertain the facts raised in the plea
to the jurisdiction and that no other matter should be inquired
into or reported; that he had taken all the testimony submitted by
the parties; that, in his opinion, petitioner was a
bona
fide resident of Arlington
Page 305 U. S. 37
County, Virginia, and that the court had jurisdiction to hear
and determine the cause.
Respondent filed exceptions, reiterating the allegations of her
plea and asserting that the commissioner's findings were contrary
to the evidence. There was a hearing upon the report and
exceptions. After argument of counsel for the parties and upon
consideration of the evidence, the court found that petitioner was
a resident of Arlington County, Virginia, for the requisite time,
that it had jurisdiction of the "subject matter and of the
parties," overruled the exceptions, and confirmed the report.
Respondent having signified her desire to apply for an appeal, the
court ordered operation of the decree suspended for a period of
thirty days. It also granted respondent ten days "within which to
file such answer or other pleadings in this cause as she may wish."
She did not appeal or file answer or other pleading.
The final decree states that the case came on for hearing upon
specified papers and depositions of five named persons taken before
a commissioner pursuant to notice served in Arlington County, on
counsel who had entered special appearance for respondent, and upon
her personally in the District of Columbia. It found: respondent
willfully deserted petitioner February 24, 1925; the desertion
continued from that date; three years had elapsed since the entry
of the decree /a mensa et thoro;/ there has been no reconciliation,
and none is probable. It granted petitioner absolute divorce,
divested respondent of all rights in his property, and required him
to pay $150 per month for support of the daughter. No alimony was
allowed respondent.
December 30, 1929, petitioner applied to the District court to
have its decree set aside or modified so as not to require him to
pay any amount for maintenance of respondent but to provide for the
payment of a reasonable
Page 305 U. S. 38
sum for the support of their daughter. The application was based
solely upon the Virginia decree. Respondent appeared and opposed
the application, but raised no question as to the jurisdiction of
the Virginia court. It was denied. The court of appeals affirmed on
the grounds that the lower court, having entered the decree,
retained jurisdiction to enforce or modify its order for
maintenance of the wife and daughter; that petitioner's removal to
Virginia did not invest the courts of that State with authority to
annul or supersede that jurisdiction, and that, the District court
having first acquired jurisdiction of the subject matter, its
authority continues until the matter is finally disposed of. 61
App.D.C. 48, 57 F.2d 414. In passing upon that application, neither
court considered or decided any question as to jurisdiction of the
Virginia court.
April 16, 1935, petitioner filed in the District court another
application to have its decree set aside or modified as before
prayed. He then sought relief on three grounds: the decree of the
Virginia court, the fact that his daughter had married and was no
longer living with respondent, and diminution of his income.
Respondent answered, alleging that petitioner never was a resident
of Virginia and denying the desertion found by the Virginia court.
There was a hearing at which petitioner offered evidence showing
the proceedings and decree in the Virginia court, the marriage of
the daughter, and that she was living with her husband. Then
counsel for respondent applied for time to secure her attendance
and that of witnesses who, as he said, would give testimony that
petitioner went to Virginia for the sole purpose of getting a
divorce, and that he never became a
bona fide resident
there. Petitioner's counsel admitted that, if present, respondent
and the witnesses referred to would so testify, but insisted that
the testimony would be incompetent. Respondent offered no other
evidence. The trial court denied the application.
Page 305 U. S. 39
The court of appeals, in an unreported opinion, held its earlier
decision established the law of the case. Declaring petitioner not
responsible for maintenance of his daughter after her marriage, it
held that fact should be taken into account, and remanded the case
for further consideration as to the amount of alimony to be allowed
respondent. Petitioner applied for, and the court granted,
rehearing. It heard argument and filed an opinion in which it
adhered to its ruling that its earlier decision was the law of the
case, and held that the decision of the lower court refusing to
enforce petitioner's decree of absolute divorce should stand. It
said:
"The Virginia court did not have full jurisdiction of the
parties and the subject matter, and hence the decree was not
entitled to full faith and credit. . . . It was necessary . . .
under
Haddock v. Haddock, 201 U. S.
562, . . . that Virginia be the last matrimonial domicil
of the parties, or, if not, that the wife be subjected to the
jurisdiction of the court below, either by personal service within
the State, or by voluntary appearance and participation in the
suit."
It held that the matrimonial domicil was not in Virginia; that
respondent's special appearance did not give the Virginia court
full jurisdiction, or constitute waiver of her objection to
jurisdiction. It held petitioner's application one addressed to the
discretion of the lower court, and that its omission to consider
the marriage of the daughter constituted failure to exercise
discretion. Accordingly, it reversed and remanded for further
proceedings in accordance with the opinion. 68 App.D.C. 240, 96
F.2d 512.
Art. 4, § 1, requires that judicial proceedings in each State
shall be given full faith and credit in the courts of every other
State. [
Footnote 4] The Act of
May 26, 1790, 1 Stat.
Page 305 U. S. 40
122, as amended, R.S. § 905, 28 U.S.C. § 687, declares that
judicial proceedings authenticated as there provided 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." [
Footnote 5] Thus, Congress rightly interpreted the clause
to mean not some, but full, credit.
Haddock v. Haddock,
supra, 201 U. S. 567.
The Act extended the rule of the Constitution to all courts,
Federal as well as State.
Mills v.
Duryee, 7 Cranch 481,
11 U. S.
485.
As to petitioner's domicil for divorce and his standing to
invoke jurisdiction of the Virginia court, its finding that he was
a
bona fide resident of that State for the required time
is binding upon respondent in the courts of the District. She may
not say that he was not entitled to sue for divorce in the state
court, for she appeared there and by plea put in issue his
allegation as to domicil, introduced evidence to show it false,
took exceptions to the commissioner's report, and sought to have
the court sustain them and uphold her plea. Plainly, the
determination of the decree upon that point is effective for all
purposes in this litigation.
Baldwin v. Traveling Men's
Assn., 283 U. S. 522,
283 U. S.
525-526
Page 305 U. S. 41
.
Nor can it be said that the domicil was not adequate to support,
in virtue of the rule of full faith and credit established by
Congress, decree enforceable in the courts of the District of
Columbia. Depending on the connection in which used, various
meanings have been attributed to the phrase matrimonial domicil.
See Atherton v. Atherton, 181 U.
S. 155,
181 U. S. 171;
Andrews v. Andrews, 188 U. S. 14,
188 U. S. 40;
Haddock v. Haddock, supra, 201 U. S. 572;
Thompson v. Thompson, 226 U. S. 551,
226 U. S. 562.
Definition, inclusive and exclusive, is not to be found; it need
not be attempted here. It is enough to say that care should always
be taken to determine upon the facts and circumstances of each case
whether, in accordance with the general rule, it is the domicil of
the husband.
See Cheely v. Clayton, 110 U.
S. 701,
110 U. S. 705;
Thompson v. Thompson, supra. Cf. 62 U.
S. Barber, 21 How. 582,
62 U. S.
592-594;
Cheever v.
Wilson, 9 Wall. 108,
76 U. S. 124.
In this case, the wife has been adjudged by the decree
a mensa
et thoro, on which she relies, to have disrupted the marital
relation. And, by the decree of the Virginia court, the enforcement
of which she opposes, she is adjudged to have persisted in
desertion of petitioner for a period more than sufficient to
entitle him under, the laws of that State, to dissolution of the
bonds.
Cf. Harding v. Harding, 198 U.
S. 317,
198 U. S.
338-339. While in that State litigating the question of
his standing to sue, she chose not to answer charges of willful
desertion.
This case differs essentially from
Haddock v. Haddock,
supra, relied on by the lower court. There, the husband,
immediately after marriage in New York, fled to escape his marital
obligations and never returned to discharge any of them. The wife
remained in that State. He acquired domicil in Connecticut, and
there obtained absolute divorce. She did not appear in the
Connecticut court for any purpose. There was no suggestion that she
was at fault, or did anything to disrupt the marital relation.
Page 305 U. S. 42
In this case, there exists none of the reasons on which we held
the New York court not bound by the full faith and credit clause to
enforce in that State the husband's Connecticut divorce. Petitioner
frankly presented to the Virginia court the grounds on which he
sought release. He gave respondent actual notice of the suit. She
appeared, specially, as she maintains, and raised and tried the
question whether he had standing to sue. In view of these facts,
and of her conduct, adjudged repugnant to the marital relation, it
would be unreasonable to hold that his domicil in Virginia was not
sufficient to entitle him to obtain a divorce having the same force
in the District as in that State.
As to respondent's appearance in the Virginia court. -- The
assertion in her plea that it was special and made for the sole
purpose of challenging jurisdiction is of no consequence if, in
fact, it was not so limited.
Sugg v. Thornton,
132 U. S. 524,
132 U. S. 530;
Sterling Tire Corp. v. Sullivan, 279 F. 336, 339. If the
plea alone may not be held to amount to a general appearance, there
arises the question whether, by her participation in the litigation
and acquiescence in the orders of the court relating to merits, she
submitted herself to its jurisdiction for all purposes. Her plea
and conduct are to be considered together.
There had been no claim of jurisdiction over her person. The
plea did not challenge jurisdiction over petitioner or the court's
authority, if appropriately invoked, to grant the decree petitioner
sought. It merely asserted that he lacked domicil required by
Virginia law. Her allegations and prayer show that the sole purpose
of the plea was to join issue with petitioner's allegation of
domicil in Virginia, to secure a finding against him on that point,
to obtain decree that he had no standing to bring the suit, and so
put an end to his efforts to obtain divorce in that State.
Page 305 U. S. 43
The recital in the decree of reference that the cause came on
for hearing upon,
inter alia, argument of counsel suggests
that both parties were heard. The stipulation of counsel that the
commissioner should only ascertain the facts raised by her plea
shows action by both parties relating to merits, at least to the
extent that it withdrew the case from the commissioner. The record
discloses no challenge by respondent to the statement, in the
decree overruling her exceptions, that the court had jurisdiction
of the subject matter and of the parties. The grant of time within
which to answer implies application to that end. A motion for such
an order relates to merits.
Hupfeld v. Automaton Piano
Co., 66 F. 788, 789. The service of notice of taking
depositions upon respondent in the District of Columbia and upon
her counsel in Virginia implies that petitioner's counsel
understood that respondent had standing to appear and
cross-examine. Plainly her plea and conduct in the Virginia court
cannot be regarded as special appearance merely to challenge
jurisdiction. Considered in its entirety, the record shows that she
submitted herself to the jurisdiction of the Virginia court and is
bound by its determination that it had jurisdiction of the subject
matter and of the parties.
Cf. Andrews v. Andrews, supra,
188 U. S.
40.
No question is here presented as to the effect of the Virginia
decree on the power of the District of Columbia court over
alimony.
Petitioner is entitled as a matter of right to have the Virginia
decree given effect in the courts of the District of Columbia. The
decree of the court of appeals must be reversed; the case will be
remanded to the district court for proceedings in conformity with
this opinion.
Reversed.
[
Footnote 1]
D.C.Code, Tit. 14, § 63.
[
Footnote 2]
Va.Code, 1924, § 5103.
[
Footnote 3]
Va.Code, 1936, § 5105.
[
Footnote 4]
"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."
[
Footnote 5]
"The acts of the legislature of any State or Territory, or of
any country subject to the jurisdiction of the United States shall
be authenticated by having the seals of such State, Territory, or
country affixed thereto. The records and judicial proceedings of
the courts of any State or Territory, or of any such country, shall
be proved or admitted in any other court within the United States
by the attestation of the clerk, and the seal of the court annexed,
if there be a seal, together with a certificate of the judge, chief
justice, or presiding magistrate, that the said attestation is in
due form. And 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."