1. Where a conviction in a criminal prosecution is based upon a
general verdict that does not specify the ground on which it rests,
and one of the grounds upon which it may rest is invalid under the
Federal Constitution, the judgment cannot be sustained.
Stromberg v. California, 283 U. S. 359. P.
317 U. S.
292.
2. A man and a woman went from North Carolina to Nevada and,
after residing there for a time sufficient to meet the requirement
of a Nevada statute, secured decrees from a Nevada court, divorcing
them from their respective spouses in North Carolina, the State in
which they had been married and domiciled. They then married each
other in Nevada, returned to North Carolina and cohabited there as
man and wife. Prosecuted under a North Carolina statute for
bigamous cohabitation, they set up in defense the Nevada decrees. A
general verdict was returned, after instructions permitting that
the decrees be disregarded upon either of two grounds, (1) that
Page 317 U. S. 288
a Nevada divorce decree based on substituted service, where the
defendant made no appearance, could not be recognized in North
Carolina, and (2) that the defendants went to Nevada, not to
establish
bona fide residence, but solely for the purpose
of taking advantage of the laws of that State to obtain a divorce
through a fraud upon the Nevada court.
Held: that, as it could not be determined on the record
that the verdict was not based solely upon the first ground --
involving a construction and application of the Federal
Constitution -- the review in this Court must be of that ground,
leaving the other out of consideration. Pp.
317 U. S. 289,
317 U. S.
292.
3. It seems clear that § 9460, Nevada Comp.L. 1929, in requiring
that the plaintiff in a suit for divorce shall have "resided" in
the State for a designated period, means a domicil, as
distinguished from a mere residence. P.
317 U. S.
298.
4. Decrees of divorce are more than
in personam
judgments, involving, as they do, the marital status of the
parties. P.
317 U. S.
298.
5. Each State, by virtue of its command over its domiciliaries
and its large interest in the institution of marriage, can alter
within its own borders the marriage status of the spouse domiciled
there, even though the other spouse be absent. There is no
constitutional barrier if the form and nature of the substituted
service meet the requirements of due process. P.
317 U. S.
298.
6. Under the Full Faith and Credit Clause and the Act of May 26,
1790, where a decree of divorce, granted by a State to one who is
at the time
bona fide domiciled therein is rendered in a
proceeding complying with due process, such decree, if valid under
the laws of that State, is binding upon the courts of other States,
including the State in which the marriage was performed and where
the other party to the marriage was still domiciled when the
divorce was decreed.
Haddock v. Haddock, 201 U.
S. 562, overruled. P.
317 U. S.
299.
7. In this case, the Court must assume that petitioners each had
a
bona fide domicil in Nevada, not that their Nevada
domicil was a sham. P.
317 U. S.
302.
8. The case does not present the question whether North Carolina
has power to refuse full faith and credit to the Nevada divorce
decrees because they were based on residence, rather than domicil,
or because, contrary to the findings of the Nevada court, North
Carolina finds that no
bona fide domicil was acquired in
Nevada. P.
317 U. S.
302.
220 N.C. 445, 17 S.E.2d 769, reversed.
Certiorari, 315 U.S. 795, to review judgments affirming
sentences for bigamous cohabitation.
Page 317 U. S. 289
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioners were tried and convicted of bigamous cohabitation
under § 4342 of the North Carolina Code, [
Footnote 1] 1939, and each was sentenced for a term of
years to a state prison. The judgment of conviction was affirmed by
the Supreme Court of North Carolina. 220 N.C. 445, 17 S.E.2d 769.
The case is here on certiorari. 315 U.S. 795.
Petitioner Williams was married to Carrie Wyke in 1916 in North
Carolina and lived with her there until May, 1940. Petitioner
Hendrix was married to Thomas Hendrix in 1920 in North Carolina and
lived with him there until May, 1940. At that time, petitioners
went to Las Vegas, Nevada and on June 26, 1940, each filed a
divorce action in the Nevada court. The defendants in those divorce
actions entered no appearance, nor were they served with process in
Nevada. In the case of defendant Thomas Hendrix, service by
publication was had by publication of the summons in a Law Vegas
newspaper and by mailing a copy of the summons and complaint to his
last post office address. [
Footnote
2] In the case of defendant Carrie Williams
Page 317 U. S. 290
a North Carolina sheriff delivered to her in North Carolina a
copy of the summons and complaint. A decree of divorce was granted
petitioner Williams by the Nevada court on August 26, 1940, on the
grounds of extreme cruelty, the court finding that
"the plaintiff has been and now is a
bona fide and
continuous resident of the County of Clark, Nevada, and had been
such resident for more than six weeks immediately preceding the
commencement of this action in the manner prescribed by law.
[
Footnote 3]"
The Nevada court granted petitioner Hendrix a divorce on October
4, 1940, on the grounds of willful neglect and extreme cruelty, and
made the same finding as to this petitioner's
bona fide
residence in Nevada as it made in the case of Williams. Petitioners
were married to each other in Nevada on October 4, 1940.
Thereafter, they returned to North Carolina, where they lived
together until the indictment was returned. Petitioners pleaded not
guilty, and offered in evidence exemplified copies of the Nevada
proceedings, contending that the divorce decrees and the Nevada
marriage were valid in North Carolina as well as in Nevada. The
State contended that, since neither of the defendants in the Nevada
actions was served in Nevada nor entered an appearance there, the
Nevada decrees would not be recognized as valid in North Carolina.
On this issue, the court charged the jury in substance that
Page 317 U. S. 291
a Nevada divorce decree based on substituted service where the
defendant made no appearance would not be recognized in North
Carolina under the rule of
Pridgen v. Pridgen, 203 N.C.
533, 166 S.E. 591. The State further contended that petitioners
went to Nevada not to establish a
bona fide residence, but
solely for the purpose of taking advantage of the laws of that
State to obtain a divorce through fraud upon that court. On that
issue, the court charged the jury that, under the rule of
State
v. Herron, 175 N.C. 754, 94 S.E. 698, the defendants had the
burden of satisfying the jury, but not beyond a reasonable doubt,
of the
bona fides of their residence in Nevada for the
required time. Petitioners excepted to these charges. The Supreme
Court of North Carolina, in affirming the judgment, held that North
Carolina was not required to recognize the Nevada decrees under the
full faith and credit clause of the Constitution (Art. IV, § 1) by
reason of
Haddock v. Haddock, 201 U.
S. 562. The intimation in the majority opinion (220 N.C.
pp. 460-464) that the Nevada divorces were collusive suggests that
the second theory on which the state tried the case may have been
an alternative ground for the decision below, adequate to sustain
the judgment under the rule of
Bell v. Bell, 181 U.
S. 175 -- a case in which this Court held that a decree
of divorce was not entitled to full faith and credit when it had
been granted on constructive service by the courts of a state in
which neither spouse was domiciled. But there are two reasons why
we do not reach that issue in this case. In the first place, North
Carolina does not seek to sustain the judgment below on that
ground. Moreover, it admits that there probably is enough evidence
in the record to require that petitioners be considered "to have
been actually domiciled in Nevada." In the second place, the
verdict against petitioners was a general one. Hence, even though
the doctrine of
Bell v. Bell, supra, were to be deemed
applicable here, we cannot determine on this record
Page 317 U. S. 292
that petitioners were not convicted on the other theory on which
the case was tried and submitted --
viz., the invalidity
of the Nevada decrees because of Nevada's lack of jurisdiction over
the defendants in the divorce suits. That is to say, the verdict of
the jury, for all we know, may have been rendered on that ground
alone, since it did not specify the basis on which it rested. It
therefore follows here, as in
Stromberg v. California,
283 U. S. 359,
283 U. S. 368,
that, if one of the grounds for conviction is invalid under the
Federal Constitution, the judgment cannot be sustained. No reason
has been suggested why the rule of the
Stromberg case is
inapplicable here. Nor has any reason been advanced why the rule of
the
Stromberg case is not both appropriate and necessary
for the protection of rights of the accused. To say that a general
verdict of guilty should be upheld though we cannot know that it
did not rest on the invalid constitutional ground on which the case
was submitted to the jury would be to countenance a procedure which
would cause a serious impairment of constitutional rights.
Accordingly, we cannot avoid meeting the
Haddock v.
Haddock issue in this case by saying that the petitioners
acquired no
bona fide domicil in Nevada. If the case had
been tried and submitted on that issue only, we would have quite a
different problem, as
Bell v. Bell indicates. We have no
occasion to meet that issue now, and we intimate no opinion on it.
However it might be resolved in another proceeding, we cannot evade
the constitutional issue in this case on the easy assumption that
petitioners' domicil in Nevada was a sham and a fraud. Rather, we
must treat the present case, for the purpose of the limited issue
before us, precisely the same as if petitioners had resided in
Nevada for a term of years and had long ago acquired a permanent
abode there. In other words, we would reach the question whether
North Carolina could refuse to recognize the Nevada decrees
because, in its view and contrary to
Page 317 U. S. 293
the findings of the Nevada court, petitioners had no actual,
bona fide domicil in Nevada, if and only if we concluded
that
Haddock v. Haddock was correctly decided. But we do
not think it was.
The
Haddock case involved a suit for separation and
alimony brought in New York by the wife on personal service of the
husband. The husband pleaded in defense a divorce decree obtained
by him in Connecticut, where he had established a separate domicil.
This Court held that New York, the matrimonial domicil where the
wife still resided, need not give full faith and credit to the
Connecticut decree, since it was obtained by the husband who
wrongfully left his wife in the matrimonial domicil, service on her
having been obtained by publication and she not having entered an
appearance in the action. But we do not agree with the theory of
the
Haddock case that, so far as the marital status of the
parties is concerned, [
Footnote
4] a decree of divorce granted under such circumstances by one
state need not be given full faith and credit in another.
Article IV, § 1 of the Constitution not only directs that "Full
Faith and Credit shall be given in each State to the public Acts,
Records, and Judicial Proceedings of every other State," but also
provides that "Congress may be general Laws prescribe the Manner in
which such Acts, Records and Proceedings shall be proved, and the
Effect thereof." Congress has exercised that power. By the Act of
May 26, 1790, c. 11, 28 U.S.C. § 687, Congress has provided that
judgments
"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."
Chief Justice Marshall stated in
Hampton v.
M'Connel, 3 Wheat. 234,
16 U. S. 235,
that
"the judgment of a state court should have the same credit,
Page 317 U. S. 294
validity, and effect in every other court in the United States
which it had in the state where it was pronounced, and that
whatever pleas would be good to a suit thereon in such state, and
none others, could be pleaded in any other court in the United
States."
That view has survived substantially intact.
Fauntleroy v.
Lum, 210 U. S. 230.
This Court only recently stated that Art. IV, § 1, and the Act of
May 26, 1790, require that "not some, but full," faith and credit
be given judgments of a state court.
Davis v. Davis,
305 U. S. 32,
305 U. S. 40.
Thus, even though the cause of action could not be entertained in
the state of the forum either because it had been barred by the
local statute of limitations or contravened local policy, the
judgment thereon obtained in a sister state is entitled to full
faith and credit.
See Christmas v.
Russell, 5 Wall. 290;
Fauntleroy v. Lum, supra;
Kenney v. Supreme Lodge, 252 U. S. 411;
Titus v. Wallick, 306 U. S. 282,
306 U. S. 291.
Some exceptions have been engrafted on the rule laid down by Chief
Justice Marshall. But, as stated by Mr. Justice Brandeis in
Broderick v. Rosner, 294 U. S. 629,
294 U. S. 642,
"the room left for the play of conflicting policies is a narrow
one." So far as judgments are concerned the decisions, [
Footnote 5] as distinguished from
dicta, [
Footnote 6] show that
the
Page 317 U. S. 295
actual exceptions have been few and far between, apart from
Haddock v. Haddock. For this Court has been reluctant to
admit exceptions in case of judgments rendered by the courts of a
sister state, since the "very purpose" of Art. IV, § 1 was
"to alter the status of the several states as independent
foreign sovereignties, each free to ignore obligations created
under the laws or by the judicial proceedings of the others, and to
make them integral parts of a single nation."
Milwaukee County v. M. E. White Co., supra, p.
296 U. S.
276-277.
This Court, to be sure, has recognized that in case of
statutes, "the extrastate effect of which Congress has not
prescribed," some "accommodation of the conflicting interests of
the two states" is necessary.
Alaska Packers Assn. v.
Industrial Accident Comm'n, 294 U. S. 532,
294 U. S. 547.
But that principle would come into play only in case the Nevada
decrees were assailed on the ground that Nevada must give full
faith and credit in its divorce proceedings to the divorce statutes
of North Carolina. Even then, it would be of no avail here. For, as
stated in the
Alaska Packers case,
"
Prima facie, every state is entitled to enforce in its
own courts its own statutes, lawfully enacted. One who challenges
that right, because of the force given to a conflicting statute of
another state by the full faith and credit clause, assumes the
burden of showing, upon some rational basis, that of the
conflicting interests involved those of the foreign state are
superior to those of the
Page 317 U. S. 296
forum."
Id., pp.
294 U. S.
547-548. It is difficult to perceive how North Carolina
could be said to have an interest in Nevada's domiciliaries
superior to the interest of Nevada. Nor is there any authority
which lends support to the view that the full faith and credit
clause compels the courts of one state to subordinate the local
policy of that state, as respects its domiciliaries, to the
statutes of any other state. Certainly
Bradford Electric Light
Co. v. Clapper, 286 U. S. 145, did
not so hold. Indeed, the recent case of
Pacific Employers Ins.
Co. v. Industrial Accident Comm'n, 306 U.
S. 493,
306 U. S. 502,
held that, in the case of statutes,
"the full faith and credit clause does not require one state to
substitute for its own statute, applicable to persons and events
within it, the conflicting statute of another state, even though
that statute is of controlling force in the courts of the state of
its enactment with respect to the same persons and events."
Moreover,
Haddock v. Haddock is not based on the
contrary theory. Nor did it hold that a decree of divorce granted
by the courts of one state need not be given full faith and credit
in another if the grounds for the divorce would not be recognized
by the courts of the forum. It does not purport to challenge or
disturb the rule, earlier established by
Christmas v. Russell,
supra, and subsequently fortified by
Fauntleroy v. Lum,
supra, that, even though the cause of action could not have
been entertained in the state of the forum, a judgment obtained
thereon in a sister state is entitled to full faith and credit. For
the majority opinion in the
Haddock case accepted both
Cheever v.
Wilson, 9 Wall. 108, and
Atherton v.
Atherton, 181 U. S. 155.
Cheever v. Wilson held that a decree of divorce granted by
a state in which one spouse was domiciled and which had personal
jurisdiction over the other was as conclusive in other states as it
was in the state where it was obtained.
Atherton v.
Atherton held that full faith and credit must be given a
decree of divorce granted by
Page 317 U. S. 297
the state of the matrimonial domicil on constructive service
against the other spouse who was a nonresident of that state. The
decisive difference between those cases and
Haddock v.
Haddock was said to be that, in the latter, the state granting
the divorce had no jurisdiction over the absent spouse, since it
was not the state of the matrimonial domicil, but the place where
the husband had acquired a separate domicil after having wrongfully
left his wife. This Court accordingly classified
Haddock v.
Haddock with that group of cases which hold that, when the
courts of one state do not have 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 to enforce the judgment. [
Footnote 7] But such differences in result between
Haddock v. Haddock and the cases which preceded it rest on
distinctions which, in our view, are immaterial so far as the full
faith and credit clause and the supporting legislation are
concerned.
The historical view that a proceeding for a divorce was a
proceeding
in rem (2 Bishop, Marriage & Divorce, 4th
Ed., § 164) was rejected by the
Haddock case. We likewise
agree that it does not aid in the solution of the problem presented
by this case to label these proceedings as proceedings
in
rem. Such a suit, however, is not a mere
in personam
action. Domicil of the plaintiff, immaterial to jurisdiction in a
personal action, is recognized in the
Haddock case and
elsewhere (Beale, Conflict of Laws, § 110.1) as essential in order
to give the court jurisdiction which will entitle the divorce
decree to extraterritorial effect, at least when the defendant has
neither been personally served nor entered an appearance. The
findings
Page 317 U. S. 298
made in the divorce decrees in the instant case must be treated
on the issue before us as meeting those requirements. For it seems
clear that the provision of the Nevada statute that a plaintiff in
this type of case must "reside" in the State for the required
period [
Footnote 8] requires
him to have a domicil, [
Footnote
9] as distinguished from a mere residence, in the state.
Latterner v. Latterner, 51 Nev. 285, 274 P. 194;
Lamb
v. Lamb, 57 Nev. 421, 65 P.2d 872. Hence, the decrees in this
case, like other divorce decrees, are more than
in
personam judgments. They involve the marital status of the
parties. Domicil creates a relationship to the state which is
adequate for numerous exercises of state power.
See Lawrence v.
State Tax Commission, 286 U. S. 276,
286 U. S. 279;
New York ex rel. Cohn v. Graves, 300 U.
S. 308,
300 U. S. 313;
Milliken v. Meyer, 311 U. S. 457,
311 U. S.
463-464;
Skiriotes v. Florida, 313 U. S.
69. Each state as a sovereign has a rightful and
legitimate concern in the marital status of persons domiciled
within its borders. The marriage relation creates problems of large
social importance. Protection of offspring, property interests, and
the enforcement of marital responsibilities are but a few of
commanding problems in the field of domestic relations with which
the state must deal. Thus, it is plain that each state, by virtue
of its command over its domiciliaries and its large interest in the
institution of marriage, can alter within its
Page 317 U. S. 299
own borders the marriage status of the spouse domiciled there,
even though the other spouse is absent. There is no constitutional
barrier if the form and nature of the substituted service (
see
Milliken v. Meyer, supra, p.
311 U. S. 463)
meet the requirements of due process.
Atherton v. Atherton,
supra, p.
181 U. S. 172.
Accordingly, it was admitted in the
Haddock case that the
divorce decree though not recognized in New York was binding on
both spouses in Connecticut where granted.
201 U. S. 201
U.S. 569,
201 U. S. 572,
201 U. S. 575,
201 U. S. 579.
And this Court, in
Maynard v. Hill, 125 U.
S. 190, upheld the validity within the Territory of
Oregon of a divorce decree granted by the legislature to a husband
domiciled there, even though the wife resided in Ohio, where the
husband had deserted her. It therefore follows that, if the Nevada
decrees are taken at their full face value (as they must be on the
phase of the case with which we are presently concerned), they were
wholly effective to change in that state the marital status of the
petitioners and each of the other spouses by the North Carolina
marriages. Apart from the requirements of procedural due process
(
Atherton v. Atherton, supra, p.
181 U. S. 172)
not challenged here by North Carolina, no reason based on the
Federal Constitution has been advanced for the contrary conclusion.
But the concession that the decrees were effective in Nevada makes
more compelling the reasons for rejection of the theory and result
of the
Haddock case.
This Court stated in
Atherton v. Atherton, supra, p.
181 U. S. 162,
that "[a] husband without a wife, or a wife without a husband, is
unknown to the law." But if one is lawfully divorced and remarried
in Nevada and still married to the first spouse in North Carolina,
an even more complicated and serious condition would be realized.
We would then have what the Supreme Court of Illinois declared to
be the "most perplexing and distressing complication in the
domestic relations of many citizens in the different states."
Dunham v. Dunham, 162 Ill. 589, 607, 44 N.E. 841, 847.
Under the circumstances
Page 317 U. S. 300
of this case, a man would have two wives, a wife two husbands.
The reality of a sentence to prison proves that that is no mere
play on words. Each would be a bigamist for living in one state
with the only one with whom the other state would permit him
lawfully to live. Children of the second marriage would be bastards
in one state but legitimate in the other. And all that would flow
from the legalistic notion that, where one spouse is wrongfully
deserted, he retains power over the matrimonial domicil so that the
domicil of the other spouse follows him wherever he may go, while,
if he is to blame, he retains no such power. But such
considerations are inapposite. As stated by Mr. Justice Holmes in
his dissent in the
Haddock case, 201 U.S. at
201 U. S. 630,
they constitute a "pure fiction, and fiction always is a poor
ground for changing substantial rights." Furthermore, the fault or
wrong of one spouse in leaving the other becomes, under that view,
a jurisdictional fact on which this Court would ultimately have to
pass. Whatever may be said as to the practical effect which such a
rule would have in clouding divorce decrees, the question as to
where the fault lies has no relevancy to the existence of state
power in such circumstances.
See Bingham,
In the
Matter of Haddock v. Haddock, 21 Corn.L.Q. 393, 426. The
existence of the power of a state to alter the marital status of
its domiciliaries, as distinguished from the wisdom of its
exercise, is not dependent on the underlying causes of the domestic
rift. As we have said, it is dependent on the relationship which
domicil creates and the pervasive control which a state has over
marriage and divorce within its own borders.
Atherton v.
Atherton, which preceded
Haddock v. Haddock, and
Thompson v. Thompson, 226 U. S. 551,
which followed it, recognized that the power of the state of the
matrimonial domicil to grant a divorce from the absent spouse did
not depend on whether his departure from the state was or was
not
Page 317 U. S. 301
justified. As stated above, we see no reason, and none has here
been advanced, for making the existence of state power depend on an
inquiry as to where the fault in each domestic dispute lies. And it
is difficult to prick out any such line of distinction in the
generality of the words of the full faith and credit clause.
Moreover, so far as state power is concerned, no distinction
between a matrimonial domicil and a domicil later acquired has been
suggested or is apparent. See Mr. Justice Holmes, dissenting,
Haddock v. Haddock, supra, p.
201 U. S. 631;
Goodrich, Matrimonial Domicile, 27 Yale L.Journ. 49. It is one
thing to say as a matter of state law that jurisdiction to grant a
divorce from an absent spouse should depend on whether by consent
or by conduct the latter has subjected his interest in the marriage
status to the law of the separate domicil acquired by the other
spouse. Beale, Conflict of Laws, § 113.11; Restatement, Conflict of
Laws, § 113. But where a state adopts, as it has the power to do, a
less strict rule, it is quite another thing to say that its decrees
affecting the marital status of its domiciliaries are not entitled
to full faith and credit in sister states. Certainly, if decrees of
a state altering the marital status of its domiciliaries are not
valid throughout the Union even though the requirements of
procedural due process are wholly met, a rule would be fostered
which could not help but bring "considerable disaster to innocent
persons" and "bastardize children hitherto supposed to be the
offspring of lawful marriage," (Mr. Justice Holmes, dissenting in
Haddock v. Haddock, supra, p.
201 U. S.
628), or else encourage collusive divorces. Beale,
Constitutional Protection of Decrees for Divorce, 19 Harv.L.Rev.
586, 596. These intensely practical considerations emphasize for us
the essential function of the full faith and credit clause in
substituting a command for the former principles of comity
(
Broderick v. Rosner, supra, p.
294 U. S. 643)
and in altering the "status of the several states as independent
foreign
Page 317 U. S. 302
sovereignties" by making them "integral parts of a single
nation."
Milwaukee County v. White Co., supra, p.
296 U. S.
277.
It is objected, however, that, if such divorce decrees must be
given full faith and credit, a substantial dilution of the
sovereignty of other states will be effected. For it is pointed out
that, under such a rule, one state's policy of strict control over
the institution of marriage could be thwarted by the decree of a
more lax state. But such an objection goes to the application of
the full faith and credit clause to many situations. It is an
objection in varying degrees of intensity to the enforcement of a
judgment of a sister state based on a cause of action which could
not be enforced in the state of the forum. Mississippi's policy
against gambling transactions was overriden in
Fauntleroy v.
Lum, supra, when a Missouri judgment based on such a
Mississippi contract was enforced by this Court. Such is part of
the price of our federal system.
This Court, of course, is the final arbiter when the question is
raised as to what is a permissible limitation on the full faith and
credit clause.
Alaska Packers Assn. v. Industrial Accident
Comm'n, supra, p.
294 U. S. 547;
Milwaukee County v. White Co., supra, p.
296 U. S. 274.
But the question for us is a limited one. In the first place, we
repeat that, in this case, we must assume that petitioners had a
bona fide domicil in Nevada, not that the Nevada domicil
was a sham. We thus have no question on the present record whether
a divorce decree granted by the courts of one state to a resident,
as distinguished from a domiciliary, is entitled to full faith and
credit in another state. Nor do we reach here the question as to
the power of North Carolina to refuse full faith and credit to
Nevada divorce decrees because, contrary to the findings of the
Nevada court, North Carolina finds that no
bona fide
domicil was acquired in Nevada. In the second place, the question
as to what is a permissible limitation on the full faith and
Page 317 U. S. 303
credit clause does not involve a decision on our part as to
which state policy on divorce is the more desirable one. It does
not involve selection of a rule which will encourage, on the one
hand, or discourage, on the other, the practice of divorce. That
choice in the realm of morals and religion rests with the
legislatures of the states. Our own views as to the marriage
institution and the avenues of escape which some states have
created are immaterial. It is a Constitution which we are
expounding -- a Constitution which in no small measure brings
separate sovereign states into an integrated whole through the
medium of the full faith and credit clause. Within the limits of
her political power, North Carolina may, of course, enforce her own
policy regarding the marriage relation -- an institution more basic
in our civilization than any other. But society also has an
interest in the avoidance of polygamous marriages (
Loughran v.
Loughran, 292 U. S. 216,
292 U. S. 223)
and in the protection of innocent offspring of marriages deemed
legitimate in other jurisdictions. And other states have an equally
legitimate concern in the status of persons domiciled there as
respects the institution of marriage. So, when a court of one
state, acting in accord with the requirements of procedural due
process, alters the marital status of one domiciled in that state
by granting him a divorce from his absent spouse, we cannot say its
decree should be excepted from the full faith and credit clause
merely because its enforcement or recognition in another state
would conflict with the policy of the latter. Whether Congress has
the power to create exceptions (
see Yarborough v.
Yarborough, 290 U. S. 202,
290 U. S. 215,
note 2, dissenting opinion) is a question on which we express no
view. It is sufficient here to note that Congress, in its sweeping
requirement that judgments of the courts of one state be given full
faith and credit in the courts of another, has not done so. And the
considerable interests involved and the substantial and
far-reaching effects which the
Page 317 U. S. 304
allowance of an exception would have on innocent persons
indicate that the purpose of the full faith and credit clause and
of the supporting legislation would be thwarted to a substantial
degree if the rule of
Haddock v. Haddock were
perpetuated.
Haddock v. Haddock is overruled. The judgment is
reversed, and the cause is remanded to the Supreme Court of North
Carolina for proceedings not inconsistent with this opinion.
Reversed.
[
Footnote 1]
Sec. 4342 provides in part:
"If any person, being married, shall contract a marriage with
any other person outside of this state, which marriage would be
punishable as bigamous if contracted within this state, and shall
thereafter cohabit with such person in this state, he shall be
guilty of a felony and shall be punished as in cases of bigamy.
Nothing contained in this section shall extend . . . to any person
who at the time of such second marriage shall have been lawfully
divorced from the bond of the first marriage. . . ."
[
Footnote 2]
Defendant Hendrix had written his wife's Nevada attorney, "Upon
receipt of the original appearance, I will sign the same." But no
appearance was entered and the North Carolina court charged the
jury that a promise to make an appearance does not constitute
one.
[
Footnote 3]
Sec. 9460, Nev.Comp.L.1929, as amended L.1931, p. 161, provides
in part:
"Divorce from the bonds of matrimony may be obtained by
complaint, under oath, to the district court of any county in which
the cause therefor shall have accrued, or in which the defendant
shall reside or be found, or in which the plaintiff shall reside,
or in which the parties last cohabited, or if plaintiff shall have
resided six weeks in the state before suit be brought, for the
following causes, or any other causes provided by law. . . ."
Sec. 9467.02 provides that,
"In all civil cases where the jurisdiction of the court depends
upon the residence of one of the parties to the action, the court
shall require corroboration of the evidence of such residence."
L.1931, p. 277.
[
Footnote 4]
Thus, we have here no question as to extraterritorial effect of
a divorce decree insofar as it affects property in another state.
See the cases cited
infra note 5.
[
Footnote 5]
Fall v. Eastin, 215 U. S. 1;
Olmsted v. Olmsted, 216 U. S. 386;
Hood v. McGehee, 237 U. S. 611.
These decisions refuse to require courts of one state to allow acts
or judgments of another to control the disposition or devolution of
realty in the former. They seem to rest on the doctrine that the
state where the land is located is "sole mistress" of its rules of
real property.
See Hood v. McGehee, supra, p.
237 U. S. 615,
and the concurring opinion of Mr. Justice Holmes in
Fall v.
Eastin, supra, p.
215 U. S. 14.
That the case of
Anglo-American Provision Co. v. Davis
Provision Co., 191 U. S. 376, is
not an exception, but only an appropriate application of the
doctrine of
forum non conveniens, see Broderick v. Rosner,
294 U. S. 629,
294 U. S.
642-643.
[
Footnote 6]
It has been repeatedly stated that the full faith and credit
clause does not require one state to enforce the penal laws of
another.
See, for example, Huntington v. Attrill,
146 U. S. 657,
146 U. S. 666;
Converse v. Hamilton, 224 U. S. 243,
224 U. S. 260;
Bradford Electric Light Co. v. Clapper, 286 U.
S. 145,
286 U.S.
160.
But the question of whether a judgment based on a penalty is
entitled to full faith and credit was reserved in
Milwaukee
County v. White Co., 296 U. S. 268,
296 U. S.
279.
For other dicta that the application of the full faith and
credit clause may be limited by the policy of the law of the forum,
see Bradford Electric Co. v. Clapper, supra, p.
286 U.S. 160;
Alaska
Packers' Assn. v. Industrial Accident Commission, 294 U.
S. 532,
294 U. S. 546;
Broderick v. Rosner, supra, note 5, p.
294 U. S.
642.
[
Footnote 7]
Grover & Baker Sewing Machine Co. v. Radcliffe,
137 U. S. 287;
National Exchange Bank v. Wiley, 195 U.
S. 257;
Baker v. Baker, Eccles & Co.,
242 U. S. 394;
Chicago Life Ins. Co. v. Cherry, 244 U. S.
25,
244 U. S. 29;
Flexner v. Farson, 248 U. S. 289.
[
Footnote 8]
Sec. 9460, Nev.Comp.L.1929, as amended L.1931, p. 161,
supra, note 3
[
Footnote 9]
The fact that a stay in a state is not for long is not
necessarily fatal to the existence of a domicil. As stated in
Williamson v. Osenton, 232 U. S. 619,
232 U. S. 624,
the "essential fact that raises a change of abode to a change of
domicil is the absence of any intention to live elsewhere." The
intention to stay for a time to which a person "did not then
contemplate an end" was held sufficient.
Id., p.
232 U. S. 625.
And see District of Columbia v. Murphy, 314 U.
S. 441. Nor is there any doubt that a married woman may
acquire in this country a domicil separate from her husband.
Williamson v. Osenton, supra, p.
232 U. S.
625-626, and cases cited.
MR. JUSTICE FRANKFURTER, concurring.
I join in the opinion of the Court, but think it appropriate to
add a few words.
Article 91 of the British North America Act (1867) gives the
Parliament of Canada exclusive legislative authority to deal with
marriage and divorce. Similarly, Article 51 of the Australia
Constitution Act (1900) empowers the Commonwealth Parliament to
make laws with respect to marriage and divorce. The Constitution of
the United States, however, reserves authority over marriage and
divorce to each of the forty-eight states. That is our starting
point. In a country like ours, where each state has the
constitutional power to translate into law its own notions of
policy concerning the family institution, and where citizens pass
freely from one state to another, tangled marital situations like
the one immediately before us inevitably arise. They arose before
and after the decision in the
Haddock case,
201 U. S. 201 U.S.
562, and will, I daresay, continue to arise no matter what we do
today. For these complications cannot be removed by any decisions
this Court can make -- neither the crudest nor the subtlest
juggling of legal concepts could enable us to bring forth a uniform
national law of marriage and divorce.
We are not authorized, nor are we qualified to formulate, a
national code of domestic relations. We cannot, by
Page 317 U. S. 305
making "jurisdiction" depend upon a determination of who is the
deserter and who the deserted or upon the shifting notions of
policy concealed by the cloudy abstraction of "matrimonial
domicile," turn this into a divorce and probate court for the
United States. There may be some who think our modern social life
is such that there is today a need, as there was not when the
Constitution was framed, for vesting national authority over
marriage and divorce in Congress, just as the national legislatures
of Canada and Australia have been vested with such powers.
Beginning in 1884,
* numerous
proposals to amend the Constitution to confer such authority have
been introduced in Congress. But those whose business it is to
amend the Constitution have not seen fit to amend it in this way.
The need for securing national uniformity in dealing with divorce,
either through constitutional amendment or by some other means, has
long been the concern of the Conference of Governors, and of
special bodies convened to consider this problem.
See,
e.g., Proceedings of Governors' Conference (1910) 185-98;
Proceedings of National Congress on Uniform Divorce Laws (1906).
This Court should abstain from trying to reach the same end by
indirection. We should not feel challenged by a task that is not
ours, even though it is difficult. Judicial attempts to solve
problems that are intrinsically legislative -- because their
elements do not lend themselves to judicial judgment or because the
necessary remedies are of a sort which judges cannot prescribe --
are apt to be as futile in their achievement as they are
presumptuous in their undertaking.
Page 317 U. S. 306
There is but one respect in which this Court can, within its
traditional authority and professional competence, contribute
uniformity to the law of marriage and divorce, and that is to
enforce respect for the judgment of a state by its sister states
when the judgment was rendered in accordance with settled
procedural standards. As the Court's opinion shows, it is clearly
settled that, if a judgment is binding in the state where it was
rendered, it is equally binding in every other state. This rule of
law was not created by the federal courts. It comes from the
Constitution and the Act of May 26, 1790, c. 11, 1 Stat. 122.
Congress has not exercised its power under the Full Faith and
Credit Clause to meet the special problems raised by divorce
decrees. There will be time enough to consider the scope of its
power in this regard when Congress chooses to exercise it.
The duty of a state to respect the judgments of a sister state
arises only where such judgments meet the tests of justice and fair
dealing that are embodied in the historic phrase "due process of
law." But, in this case, all talk about due process is beside the
mark. If the actions of the Nevada court had been taken "without
due process of law," the divorces which it purported to decree
would have been without legal sanction in every state including
Nevada. There would be no occasion to consider the applicability of
the Full Faith and Credit Clause. It is precisely because the
Nevada decrees do satisfy the requirements of the Due Process
Clause and are binding in Nevada upon the absent spouses that we
are called upon to decide whether these judgments, unassailable in
the state which rendered them, are, despite the commands of the
Full Faith and Credit Clause, null and void elsewhere.
North Carolina did not base its disregard of the Nevada decrees
on the claim that they were a fraud and a sham, and no claim was
made here on behalf of North Carolina
Page 317 U. S. 307
that the decrees were not valid in Nevada. It is indisputable
that the Nevada decrees here, like the Connecticut decree in the
Haddock case, were valid and binding in the state where
they were rendered.
Haddock v. Haddock, 201 U.
S. 562,
201 U. S.
569-570;
Maynard v. Hill, 125 U.
S. 190;
Atherton v. Atherton, 181 U.
S. 155. In denying constitutional sanction to such a
valid judgment outside the state which rendered it, the
Haddock decision made an arbitrary break with the past,
and created distinctions incompatible with the role of this Court
in enforcing the Full Faith and Credit Clause. Freed from the
hopeless refinements introduced by that case, the question before
us is simply whether the Nevada decrees were rendered under
circumstances that would make them binding against the absent
spouses in the state where they were rendered. North Carolina did
not challenge the power of Nevada to declare the marital status of
persons found to be Nevada residents. North Carolina chose,
instead, to disrespect the consequences of Nevada's exertion of
such power. It is therefore no more rhetorical to say that Nevada
is seeking to impose its policy upon North Carolina than it is to
say that North Carolina is seeking to impose its policy upon
Nevada.
For all but a very small fraction of the community, the niceties
of resolving such conflicts among the laws of the states are, in
all likelihood, matters of complete indifference. Our occasional
pronouncements upon the requirements of the Full Faith and Credit
Clause doubtless have little effect upon divorces. Be this as it
may, a court is likely to lose its way if it strays outside the
modest bounds of its own special competence and turns the duty of
adjudicating only the legal phases of a broad social problem into
an opportunity for formulating judgments of social policy quite
beyond its competence as well as its authority.
Page 317 U. S. 308
*
See Ames, Proposed Amendments to the Constitution of
the United States during the First Century of its History,
contained in the Annual Report of the American Historical
Association, 1896, vol. II, p. 190; Sen.Doc. No. 93, 69th Cong.,
1st Sess., and the successive compilations prepared by the
Legislative Reference Service of the Library of Congress.
MR. JUSTICE MURPHY, dissenting.
I dissent because the Court today introduces an undesirable
rigidity in the application of the Full Faith and Credit Clause to
a problem which is of acute interest to all the states of the Union
and on which they hold varying and sharply divergent views -- the
problem of how they shall treat the marriage relation.
This case cannot be considered as one involving the Constitution
alone; rather, the case involves the interaction of public policy
upon the Constitution. This is not to say that our function is to
become censors of public morals and decide this case in accordance
with what we may think is the wisest rule for society with respect
to divorce. But the question of public policy enters to this degree
-- marriage and the family have generally been regarded as basic
components of our national life, and the solution of the problems
engendered by the marital relation, the formulation of standards of
public morality in connection therewith, and the supervision of
domestic (in the sense of family) affairs, have been left to the
individual states. Each state has the deepest concern for its
citizens in those matters, and, concomitantly with that concern, it
exercises the widest control over marriage, determining how it is
to be solemnized, the attendant obligations, and how it may be
dissolved. When a conflict arises between the divergent policies of
two states in this area of legitimate governmental concern, as
here, this Court should give appropriate consideration to the
interests of each state.
In recognition of the paramount interest of the state of
domicile over the marital status of its citizens, this Court has
held that actual good faith domicile of at least one party is
essential to confer authority and jurisdiction on the courts of a
state to render a decree of divorce that will be entitled to
extraterritorial effect under the
Page 317 U. S. 309
Full Faith and Credit Clause,
Bell v. Bell,
181 U. S. 175,
even though both parties personally appear,
Andrews v.
Andrews, 188 U. S. 14. When
the doctrine of those cases is applied to the facts of this one,
the question becomes a simple one: did petitioners acquire a
bona fide domicil in Nevada? I agree with my brother
Jackson that the only proper answer on the record is "no." North
Carolina is the state in which petitioners have their roots, the
state to which they immediately returned after a brief absence just
sufficient to achieve their purpose under Nevada's requirements. It
follows that the Nevada decrees are entitled to no extraterritorial
effect when challenged in another state.
Bell v. Bell, supra;
Andrews v. Andrews, supra.
This is not to say that the Nevada decrees are without any legal
effect in the Nevada. That question is not before us. It may be
that, for the purposes of that state, the petitioners have been
released from their marital vows, consistently with the procedural
requirements of the Fourteenth Amendment, on the basis of
compliance with its residential requirements and constructive
service of process on the nonresident spouses. But, conceding the
validity in Nevada of its decrees dissolving the marriages, it does
not mechanically follow that the Full Faith and Credit Clause
compels North Carolina to accept them.
We have recognized an area of flexibility in the application of
the Clause to preserve and protect state policies in matters of
vital public concern. We have said that conflicts between such
state policies should be resolved
"not by giving automatic effect to the full faith and credit
clause, . . . but by appraising the governmental interests of each
jurisdiction, and turning the scale of decision according to their
weight."
Alaska Packers Assn. v. Industrial Accident Comm'n,
294 U. S. 532,
294 U. S. 547.
See also Milwaukee County v. White Co., 296 U.
S. 268,
296 U. S.
273-274,
and compare the dissenting opinion in
Yarborough v.
Yarborough, 290 U.S.
Page 317 U. S. 310
202,
290 U. S.
213-227. That Clause should no more be read "with
literal exactness like a mathematical formula" than are other great
and general clauses of the Constitution placing limitations upon
the States to weld us into a Nation.
Cf. Home Bldg. & Loan
Assn. v. Blaisdell, 290 U. S. 398,
290 U. S. 428.
Rather, it should be construed to harmonize its direction "with the
necessary residuum of state power."
Id. at
290 U. S.
435.
Prominent in the residuum of state power, as pointed out above,
is the right of a state to deal with the marriage relations of its
citizens and to pursue its chosen domestic policy of public
morality in that connection. Both Nevada and North Carolina have
rights in this regard which are entitled to recognition. The
conflict between those rights here should not be resolved by
extending into North Carolina the effects of Nevada's action
through a perfunctory application of the literal language of the
Full Faith and Credit Clause with the result that measures which
North Carolina has adopted to safeguard the welfare of her citizens
in this area of legitimate governmental concern are undermined.
When the interests are considered, those of North Carolina are of
sufficient validity that they should as clearly free her of the
compulsions of the Full Faith and Credit Clause, as did the
interest of the state in the devolution of property within its
boundaries in
Fall v. Eastin, 215 U. S.
1,
Olmsted v. Olmsted, 216 U.
S. 386, and
Hood v. McGehee, 237 U.
S. 611, or the interest of a state in the application of
its own workmen's compensation statute in
Alaska Packers Assn.
v. Industrial Accident Comm'n, supra, or its interest in
declining to enforce the penal laws of another jurisdiction,
cf. Huntington v. Attrill, 146 U.
S. 657,
146 U. S. 666,
all of which seem to be matters of far less concern to a state than
the untrammeled enforcement within its borders of those standards
of public morality with regard to the marriage relation which it
considers to be in the best interests of its citizens.
Page 317 U. S. 311
There is an element of tragic incongruity in the fact that an
individual may be validly divorced in one state but not in another.
But our dual system of government and the fact that we have no
uniform laws on many subjects give rise to other incongruities as
well -- for example, the common law took the logical position that
an individual could have but one domicile at a time, but this Court
has nevertheless said that the Full Faith and Credit Clause does
not prevent conflicting state decisions on the question of an
individual's domicile.
Cf. Worcester County Trust Co. v.
Riley, 302 U. S. 292,
302 U. S. 299.
In the absence of a uniform law on the subject of divorce, this
Court is not so limited in its application of the Full Faith and
Credit Clause that it must force Nevada's policy upon North
Carolina, any more than it must compel Nevada to accept North
Carolina's requirements. The fair result is to leave each free to
regulate within its own area the rights of its own citizens.
MR. JUSTICE JACKSON, dissenting.
I cannot join in exerting the judicial power of the Federal
Government to compel the North Carolina to subordinate its own law
to the Nevada divorce decrees. The Court's decision to do so
reaches far beyond the immediate case. It subjects matrimonial laws
of each state to important limitations and exceptions that it must
recognize within its own borders and as to its own permanent
population. It nullifies the power of each state to protect its own
citizens against dissolution of their marriages by the courts of
other states which have an easier system of divorce. It subjects
every marriage to a new infirmity, in that one dissatisfied spouse
may choose a state of easy divorce, in which neither party has ever
lived, and there commence proceedings without personal service of
process. The spouse remaining within the state of domicile need
never know of the proceedings. Or, if it
Page 317 U. S. 312
comes to one's knowledge, the choice is between equally useless
alternatives: one is to ignore the foreign proceedings, in which
case the marriage is quite certain to be dissolved; the other is to
follow the complaining spouse to the state of his choice, and there
defend under the laws which grant the dissolution on relatively
trivial grounds. To declare that a state is powerless to protect
either its own policy or the family rights of its people against
such consequences has serious constitutional implications. It is
not an exaggeration to say that this decision repeals the divorce
laws of all the states, and substitutes the law of Nevada as to all
marriages one of the parties to which can afford a short trip
there. The significance of this decision is best appraised by
orienting its facts with reference to the States involved, for the
Court approves this concrete case as a pattern which anybody in any
state may henceforth follow under the protection of the federal
courts.
From the viewpoint of North Carolina, this is the situation: the
Williamses, North Carolina people, were married in North Carolina,
lived there twenty-five years, and have four children. The
Hendrixes were also married in North Carolina and resided there
some twenty years. In May of 1940, Mr. Williams and Mrs. Hendrix
left their homes and respective spouses, departed the state, but,
after an absence of a few weeks, reappeared and set up housekeeping
as husband and wife. North Carolina then had on its hands three
marriages among four people in the form of two broken families, and
one going concern. What problems were thereby created as to
property or support and maintenance we do not know. North Carolina,
for good or ill, has a strict policy as to divorce. The situation
is contrary to its laws, and it has attempted to vindicate its own
law by convicting the parties of bigamy.
The petitioners assert that North Carolina is made powerless in
the matter, however, because of proceedings
Page 317 U. S. 313
carried on in Nevada during their brief absence from North
Carolina. We turn to Nevada for that part of the episode.
Williams and Mrs. Hendrix appear in the Nevada on May 15, 1940.
For barely six weeks, they made their residences at the Alamo Auto
Court on the Las Vegas-Los Angeles Road. On June 26, 1940, both
filed bills of complaint for divorce through the same lawyer, and
alleging almost identical grounds. No personal service was made on
the home-staying spouse in either case, and service was had only by
publication and substituted service. Both obtained divorce decrees.
The Nevada policy of divorce is reflected in Mrs. Hendrix's case.
Her grounds were "extreme mental cruelty." She sustained them by
testifying that her husband was "moody;" did not talk or speak to
her "often;" when she spoke to him, he answered most of the time by
a nod or shake of the head, and "there was nothing cheerful about
him at all." The latter of the two divorces was granted on October
4, 1940, and, on that day in Nevada, they had benefit of clergy and
emerged as man and wife. Nevada having served its purpose in their
affairs, they at once returned to North Carolina to live.
The question is whether this Court will now prohibit North
Carolina from enforcing its own policy within that State against
these North Carolinians on the ground that the law of Nevada, under
which they lived a few weeks, is in some way projected into North
Carolina to give them immunity.
I
OUR FUNCTION IN THE MATTER
There is confided to the Court only the power to resolve
constitutional questions raised by these divorce procedures and not
moral, religious, or social questions as to divorce itself. I do
not know with any certainty whether,
Page 317 U. S. 314
in the long run, strict or easy divorce is best for society, or
whether either has much effect on moral conduct. It is enough, for
judicial purposes, that to each state is reserved constitutional
power to determine its own divorce policy. It follows that a
federal court should uphold impartially the right of Nevada to
adopt easy divorce laws and the right of North Carolina to enact
severe ones. No difficulties arise so long as each state applies
its laws to its own permanent inhabitants. The complications begin
when one state opens its courts and extends the privileges of its
laws to persons who never were domiciled there and attempts to
visit disadvantages therefrom upon persons who have never lived
there, have never submitted to the jurisdiction of its courts, and
have never been lawfully summoned by personal service of process.
This strikes at the orderly functioning of our federal
constitutional system, and raises questions for us.
The prevailing opinion rests upon a line of cases of which
Christmas v.
Russell, 5 Wall. 290, is typical. There, it was
said that "[i]f a judgment is conclusive in the State where it was
pronounced, it is equally conclusive everywhere."
Id.
72 U. S. 302.
This rule was uttered long ago in very different circumstances. The
judgment there in question was on a promissory note, and the Court
also said that:
"Nothing can be plainer than the proposition is, that the
judgment . . . was a valid judgment in the State where it was
rendered. Jurisdiction of the case was undeniable, and the
defendant, being found in that jurisdiction, was duly served with
process, and appeared and made full defence."
Id. at
72 U. S. 301.
But the same defendant tried to relitigate his lost cause when it
was sought to give that judgment effect in his home state. This
Court properly held that it was not competent for the courts of any
other state to reopen the merits of the cause. This very wise rule
against collateral impeachment of an ordinary judgment based upon
personal jurisdiction is now
Page 317 U. S. 315
made to support the theory that we must enforce these very
different Nevada judgments without more than formal inquiry into
the jurisdiction of the court that rendered them.
The effect of the Court's decision today -- that we must give
extraterritorial effect to any judgment that a state honors for its
own purposes -- is to deprive this Court of control over the
operation of the full faith and credit and the due process clauses
of the Federal Constitution in cases of contested jurisdiction, and
to vest it in the first state to pass on the facts necessary to
jurisdiction. It is for this Court, I think, not for state courts,
to implement these great but general clauses by defining those
judgments which are to be forced upon other states.
Conflict between policies, laws, and judgments of constituent
states of our federal system is an old, persistent, and
increasingly complex problem. The right of each state to experiment
with rules of its own choice for governing matrimonial and social
life is greatly impaired if its own authority is overlapped and its
own policy is overridden by judgments of other states forced on it
by the power of this Federal Court. If we are to extend protection
to the orderly exercise of the right of each state to make its own
policy, we must find some way of confining each state's authority
to matters and persons that are by some standard its own.
The framers of the Constitution did not lay down rules to guide
us in selecting which of two conflicting state judgments or public
acts would receive federal aid in its extraterritorial enforcement.
Nor was it necessary. There was, and is, an adequate body of law,
if we do not reject it, by which to test jurisdiction or power to
render the judgments in question so far as faith and credit by
federal command is concerned. By the application of well
established rules, these judgments fail to merit enforcement for
two reasons.
Page 317 U. S. 316
II
LACK OF DUE PROCESS OF LAW
Thirty-seven years ago, this Court decided that a state court,
even of the plaintiff's domicile, could not render a judgment of
divorce that would be entitled to federal enforcement in other
states against a nonresident who did not appear, and was not
personally served with process.
Haddock v. Haddock,
201 U. S. 562. The
opinion was much criticized, particularly in academic circles.
[
Footnote 2/1] Until today,
however, it has been regarded as law, to be accepted and applied,
for good or ill, depending on one's view of the matter. The
theoretical reasons for the change are not convincing.
The opinion concedes that Nevada's judgment could not be forced
upon North Carolina in absence of personal service if a divorce
proceeding were an action
in personam. In other words,
settled family relationships may be destroyed by a procedure that
we would not recognize if the suit were one to collect a grocery
bill. [
Footnote 2/2]
We have been told that this is because divorce is a proceeding
in rem. The marriage relation is to be reified, and
treated as a
res. Then it seems that this
res
follows a fugitive from matrimony into a state of easy divorce,
although the other party to it remains at home, where the
res was contracted and where years of cohabitation would
seem to give it local situs. Would it be less logical to hold that
the continued presence of one party to a marriage
Page 317 U. S. 317
gives North Carolina power to protect the
res, the
marriage relation, than to hold that the transitory presence of one
gives Nevada power to destroy it? Counsel at the bar met this
dilemma by suggesting that the
res exists in duplicate --
one for each party to the marriage. But this seems fatal to the
decree, for, if that is true, the dissolution of the
res
in transit would hardly operate to dissolve the
res that
stayed in North Carolina. Of course, this discussion is only to
reveal the artificial and fictional character of the whole doctrine
of a
res as applied to a divorce action.
I doubt that it promotes clarity of thinking to deal with
marriage in terms of a
res, like a piece of land or a
chattel. It might be more helpful to think of marriage as just
marriage -- a relationship out of which spring duties to both
spouse and society and from which are derived rights -- such as the
right to society and services and to conjugal love and affection --
rights which generally prove to be either priceless or worthless,
but which nonetheless the law sometimes attempts to evaluate in
terms of money when one is deprived of them by the negligence or
design of a third party.
It does not seem consistent with our legal system that one who
has these continuing rights should be deprived of them without a
hearing. Neither does it seem that he or she should be summoned by
mail, publication, or otherwise to a remote jurisdiction chosen by
the other party, and there be obliged to submit marital rights to
adjudication under a state policy at odds with that of the state
under which the marriage was contracted and the matrimonial
domicile was established.
Marriage is often dealt with as a contract. Of course, a
personal judgment could not be rendered against an absent party on
a cause of action arising out of an ordinary commercial contract,
without personal service of process. I see no reason why the
marriage contract, if such it be
Page 317 U. S. 318
considered, should be discriminated against, nor why a party to
a marriage contract should be more vulnerable to a foreign judgment
without process than a party to any other contract. I agree that
the marriage contract is different, but I should think the
difference would be in its favor.
The Court thinks the difference is the other way: we are told
that divorce is not a "mere
in personam action" since
Haddock v. Haddock, supra, held that domicile is necessary
to jurisdiction for divorce. But to hold that a state cannot have
divorce jurisdiction unless it is the domicile is not to hold that
it must have such jurisdiction if it is the domicile, as
Haddock v. Haddock itself demonstrates. Further support
for this view seems to be seen in
Maynard v. Hill,
125 U. S. 190, and
in the Court's subsequent approval of that case in
Haddock v.
Haddock, supra, at
201 U. S. 569,
201 U. S. 572,
201 U. S.
574-575,
201 U. S. 579.
All that
Maynard v. Hill decided was that the Territory of
Washington had jurisdiction to cut off any interest of an absent
spouse in land within its borders. But protection of land in the
jurisdiction and protection against bigamy prosecutions out of the
jurisdiction are plainly different matters. [
Footnote 2/3]
Although the Court concedes that its present decision would be
insupportable if divorce were a "mere
in personam action"
it relies for support on opinions that the state where one is
domiciled has the power to enter valid criminal, tax, and simple
money judgments
against -- not
for -- him.
[
Footnote 2/4] Those opinions are
wholly inapposite unless
Page 317 U. S. 319
they mean that Nevada has jurisdiction to nullify contract
rights of a person never in the state or to declare that he is not
liable for the commission of crime, and payment of taxes, or the
breach of a contract, in another state, and I am sure that nobody
has ever supposed they meant that.
To hold that the Nevada judgments were not binding in North
Carolina because they were rendered without jurisdiction over the
North Carolina spouses, it is not necessary to hold that they were
without any conceivable validity. It may be, and probably is, true
that Nevada has sufficient interest in the lives of those who
sojourn there to free them and their spouses to take new spouses
without incurring criminal penalties under Nevada law. I know of
nothing in our Constitution that requires Nevada to adhere to
traditional concepts of bigamous unions or the legitimacy of the
fruit thereof. And the control of a state over property within its
borders is so complete that I suppose that Nevada could effectively
deal with it in the name of divorce as completely as in any other.
[
Footnote 2/5] But it is quite a
different thing to say that Nevada can dissolve the marriages of
North Carolinians and dictate the incidence of the bigamy statutes
of North Carolina by which North Carolina has sought to protect her
own interests, as well as theirs. In this case, there is no
conceivable basis of jurisdiction in the Nevada court over the
absent spouses, [
Footnote 2/6] and,
a fortiori, over North Carolina herself. I
Page 317 U. S. 320
cannot but think that, in its preoccupation with the full faith
and credit clause, the Court has slighted the due process
clause.
III
.
LACK OF DOMICILE
We should, I think, require that divorce judgments asking our
enforcement under the full faith and credit clause, unlike
judgments arising out of commercial transactions and the like, must
also be supported by good faith domicile of one of the parties
within the judgment state. [
Footnote
2/7] Such is certainly a reasonable requirement. A state can
have no legitimate concern with the matrimonial status of two
persons neither of whom lives within its territory.
The Court would seem, indeed, to pay lip service to this
principle. I understand the holding to be that it is domicile in
Nevada that gave power to proceed without personal service of
process. That being the course of reasoning, I do not see how we
avoid the issue concerning the existence of the domicile which the
facts on the face of this record put to us. Certainly we cannot, as
the Court would, bypass the matter by saying that
"We must treat the present case for the purpose of the limited
issue before us precisely the same as if petitioners had resided in
Nevada
Page 317 U. S. 321
for a term of years and had long ago acquired a permanent abode
there."
I think we should treat it as if they had done just what they
have done.
The only suggestion of a domicile within Nevada was a stay of
about six weeks at the Alamo Auto Court, an address hardly
suggestive of permanence. Mrs. Hendrix testified in her case (the
evidence in Williams' case is not before us) that her residence in
Nevada was "indefinite permanent" in character. The Nevada court
made no finding that the parties had a "domicile" there. It only
found a residence -- sometimes, but not necessarily, an equivalent.
[
Footnote 2/8] It is this Court
that accepts these facts as enough to establish domicile.
While a state can no doubt set up its own standards of domicile
as to its internal concerns, I do not think it can require us to
accept and, in the name of the Constitution, impose them on other
states. If Nevada may prescribe six weeks of indefinite permanent
abode in a motor court as constituting domicile, she may as readily
prescribe six days. Indeed, if the Court's opinion is carried to
its logical conclusion, a state could grant a constructive domicile
for divorce purposes upon the filing of some sort of declaration of
intention. Then it would follow that we would be required to accept
it as sufficient and to force all states to recognize mail order
divorces as well as tourist divorces. Indeed, the difference is in
the bother and expense -- not in the principle of the thing.
The concept of domicile as a controlling factor in choice of law
to govern many relations of the individual was well known to the
framers of the Constitution. It was hardly contemplated that a
person should be subject at once to two conflicting state policies,
such as those of Nevada and North Carolina. It was undoubtedly
expected that the Court would, in many cases of conflict, use one's
domicile
Page 317 U. S. 322
as an appropriate guide in selecting the law to govern his
controversies.
Domicile means a relationship between a person and a locality.
It is the place, and the one place, where he has his roots and his
real permanent home. The Fourteenth Amendment, in providing that
one, by residence in a state, becomes a citizen hereof, probably
used "residence" as synonymous with domicile. Thus, domicile fixes
the place where one belongs in our federal system. In some
instances, the existence of this relationship between the state and
an individual may be a federal question, although this Court has
been reluctant to accept that view. [
Footnote 2/9]
If, in testing this judgment to determine whether it qualifies
for federal enforcement, we should apply the doctrine of domicile
to interpretation of the full faith and credit clause, Nevada would
be held to a duty to respect the statutes of North Carolina, and
not to interfere with their application to those whose individual
as well as matrimonial domicile is within that state unless and
until that domicile has been terminated. And North Carolina would
not be required to yield its policy as to persons resident there
except upon a showing that Nevada had acquired a domiciliary right
to redefine the matrimonial status.
However, the trend of recent decision has been to break down the
rigid concept of domicile as a test of the right of a state to deal
with important relations of life. This trend
Page 317 U. S. 323
has been particularly apparent in cases where the Court has
authorized, if not indeed encouraged, the several states to set up
their own standards of domicile and to make conflicting findings of
domicile for the purpose of taxing the right of succession.
Worcester County Trust Co. v. Riley, 302 U.
S. 292. The Court has completely repudiated domicile as
the measure of a state's right to tax intangible property.
State Tax Commission v. Aldrich, 316 U.
S. 174,
316 U. S. 185.
The present decision extends the trend to the field of matrimonial
legislation. This direction is contrary to what I believe to be the
purpose of our Constitution to prevent overlapping and conflict of
authority between the states.
In the application of the full faith and credit clause to the
variety of circumstances that arise when families break up and
separate domiciles are established, there are, I grant, many areas
of great difficulty. But I cannot believe that we are justified in
making a demoralizing decision in order to avoid making difficult
ones.
IV
PRACTICAL CONSIDERATIONS
The Court says that its judgment is "part of the price of our
federal system." It is a price that we did not have to pay
yesterday, and that we will have to pay tomorrow only because this
Court has willed it to be so today. This Court may follow
precedents, irrespective of their merits, as a matter of obedience
to the rule of
stare decisis. Consistency and stability
may be so served. They are ends desirable in themselves, for only
thereby can the law be predictable to those who must shape their
conduct by it and to lower courts which must apply it. But we can
break with established law, overrule precedents, and start a new
cluster of leading cases to define what we mean only as a matter of
deliberate policy. We therefore search a
Page 317 U. S. 324
judicial pronouncement that ushers in a new order of matrimonial
confusion and irresponsibility for some hint of the countervailing
public good that is believed to be served by the change. Little
justification is offered. And it is difficult to believe that what
is offered is intended seriously.
The Court advances two "intensely practical considerations" in
support of its present decision. One is the "complicated and
serious condition" if "one is lawfully divorced and remarried in
Nevada and still married to the first spouse in North Carolina."
This, of course, begs the question, for the divorces were
completely ineffectual for any purpose relevant to this case. I
agree that it is serious if a Nevada court, without jurisdiction
for divorce, purports to say that the sojourn of two spouses gives
four spouses rights to acquire four more, but I think it far more
serious to force North Carolina to acquiesce in any such
proposition. The other consideration advanced is that, if the Court
doesn't enforce divorces such as these, it will, as it puts it,
"bastardize" children of the divorcees. When, thirty-seven years
ago, Mr. Justice Holmes perpetrated this quip, it had point, for
the Court was then holding divorces invalid which many, due to the
confused state of the law, had thought to be good. It is difficult
to find that it has point now that the shoe is on the other foot.
In any event, I had supposed that our judicial responsibility is
for the regularity of the law, not for the regularity of
pedigrees.
[
Footnote 2/1]
It was twenty years before Professor Beale could justify the
decision to his satisfaction.
Compare Haddock Revisited,
39 Harvard Law Review 417,
with Beale, Constitutional
Protection of Decrees for Divorce, 19 Harvard Law Review 586.
Others seem to lack his capacity for quick adjustment.
[
Footnote 2/2]
Pennoyer v. Neff, 95 U. S. 714;
Riverside & Dan River Cotton Mills v. Menefee,
237 U. S. 189;
cf. McDonald v. Mabee, 243 U. S. 90;
Flexner v. Farson, 248 U. S. 289;
Doherty & Co. v. Goodman, 294 U.
S. 623;
Milliken v. Meyer, 311 U.
S. 457.
[
Footnote 2/3]
Cf. Arndt v. Griggs, 134 U. S. 316;
Dewey v. Des Moines, 173 U. S. 193;
Fall v. Eastin, 215 U. S. 1;
Olmsted v. Olmsted, 216 U. S. 386;
Hood v. McGehee, 237 U. S. 611;
Grannis v. Ordean, 243 U. S. 385;
Clark v. Williard, 294 U. S. 211;
Pink v. A.A.A. Highway Express Co., 314 U.
S. 201.
[
Footnote 2/4]
Lawrence v. State Tax Commission, 286 U.
S. 276,
286 U. S. 279;
New York ex rel. Cohn v. Graves, 300 U.
S. 308,
300 U. S. 313;
Milliken v. Meyer, 311 U. S. 457,
311 U. S.
463-464;
Skiriotes v. Florida, 313 U. S.
69.
[
Footnote 2/5]
Cf. Arndt v. Griggs; Dewey v. Des Moines; Grannis v.
Orleans; Clark v. Williard, supra, 317
U.S. 287fn2/2|>note 2.
[
Footnote 2/6]
A spouse who appears and contests the jurisdiction of the court
of another state to grant a divorce may not collaterally attack its
findings of domicile and jurisdiction made after such appearance.
Davis v. Davis, 305 U. S. 32. So
also, a deserter from the matrimonial domicile may be bound by a
divorce granted by a court of the state where the matrimonial
domicile is situated. Whether fault on the part of the deserter is
an essential seems on the basis of our cases on jurisdiction for
divorce to be an open question;
Atherton v. Atherton,
181 U. S. 155;
Haddock v. Haddock, supra, at
201 U. S.
570-572,
201 U. S. 583,
and
Thompson v. Thompson, 226 U.
S. 551; but our decisions on analogous problems might be
found to afford adequate support for a decision that it is not.
Cf. Washington ex rel. Bond & Goodwin & Tucker v.
Superior Court, 289 U. S. 361;
Doherty & Co. v. Goodman, 294 U.
S. 623.
See further, Restatement, Conflict of
Laws, §§ 112, 113.
[
Footnote 2/7]
This was the decision in
Bell v. Bell, 181 U.
S. 175, and
Andrews v. Andrews, 188 U. S.
14.
Davis v. Davis, supra, 317
U.S. 287fn2/6|>note 6, in no way indicates that a finding of
domicile after appearance of the absent spouse and litigation of
the question would be conclusive upon the state of his domicile in
litigation involving its interests and not merely those of the
parties.
Cf. Stoll v. Gottlieb, 305 U.
S. 165,
305 U. S. 172,
note 13.
[
Footnote 2/8]
1 Beale, Conflict of Laws (1935) § 10.3.
[
Footnote 2/9]
Compare Texas v. Florida, 306 U.
S. 398,
with Massachusetts v. Missouri,
308 U. S. 1.
And
see Harrison and Tweed, Death and Taxation are Certain -- But
What of Domicile?, 53 Harvard Law Review 68, 76:
"Texas v. Florida does not help the situation in the ordinary
case, because, at the rates of tax prevailing in most of the
states, a controversy between the states of which the Supreme Court
has jurisdiction can arise only if at least four states claim a tax
and the estate consists of intangible property having a value of at
least $30,000,000. On no other state of facts will the assets be
insufficient to meet the claims of all of the claimant states."