1. A man and a woman, domiciled in North Carolina, left their
spouses in North Carolina, obtained decrees of divorce in Nevada,
married, and returned to North Carolina to live. Prosecuted in
North Carolina for bigamous cohabitation, they pleaded the Nevada
divorce decrees in defense, but were convicted.
Held: that, upon the record, the judgments of
conviction were not invalid as denying the Nevada divorce decrees
the full faith and credit required by Art. IV, § 1 of the
Constitution. Pp.
325 U. S. 234,
325 U. S.
236.
2. A decree of divorce rendered in one State may be collaterally
impeached in another by proof that the court which rendered the
decree had no jurisdiction, even though the record of the
proceedings in that court purports to show jurisdiction. P.
325 U. S.
229.
3. Under our system of law, judicial power to grant a divorce --
jurisdiction, strictly speaking -- is founded on domicil. P.
325 U. S.
229.
4. As to the truth or existence of a fact, like that of domicil,
upon which depends the power to exert judicial authority, a State
not a party to the exertion of such judicial authority in another
State, but seriously affected by it, has a right, when asserting
its own unquestioned authority, to ascertain the truth or existence
of that crucial fact. P.
325 U. S.
230.
5. Punishment of a person for an act as a crime, when ignorant
of the facts making it so, does not involve a denial of due
process. P.
325 U. S.
238.
6. The prior decision of this Court in this case,
Williams
v. North Carolina, 317 U. S. 287, did
not foreclose a second trial upon the issue of domicil. P.
325 U. S.
239.
224 N.C. 183, 29 S.E.2d 744, affirmed.
Certiorari, 322 U.S. 725, to review a judgment affirming
judgments of conviction of bigamous cohabitation.
Page 325 U. S. 227
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This case is here to review judgments of the Supreme Court of
North Carolina, affirming convictions for bigamous cohabitation,
[
Footnote 1] assailed on the
ground that full faith and credit, as required by the Constitution
of the United States, was not accorded divorces decreed by one of
the courts of Nevada.
Williams v. North Carolina,
317 U. S. 287,
decided an earlier aspect of the controversy. It was there held
that a divorce granted by Nevada, on a finding that one spouse was
domiciled in Nevada, must be respected in North Carolina, where
Nevada's finding of domicil was not questioned, though the other
spouse had neither appeared nor been served with process in Nevada
and though recognition of such a divorce offended the policy of
North Carolina. The record then before us did not present the
question whether North Carolina had the power
"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."
Williams v. North Carolina, supra, at
317 U. S. 302.
This is the precise issue which has emerged after retrial of the
cause following our reversal. Its obvious importance brought the
case here. 322 U.S. 725.
The implications of the Full Faith and Credit Clause, Article
IV, Section 1 of the Constitution, [
Footnote 2] first received the sharp
Page 325 U. S. 228
analysis of this Court in
Thompson v.
Whitman, 18 Wall. 457. Theretofore, uncritical
notions about the scope of that Clause had been expressed in the
early case of
Mills v.
Duryee, 7 Cranch 481. The "doctrine" of that case,
as restated in another early case, was that
"the judgment of a state court should have the same credit,
validity, and effect in every other court in the United States,
which it had in the state where it was pronounced."
Hampton v.
McConnel, 3 Wheat. 234,
16 U. S. 235.
This utterance, when put to the test, as it was in
Thompson v.
Whitman, supra, was found to be too loose.
Thompson v.
Whitman made it clear that the doctrine of
Mills v.
Duryee comes into operation only when, in the language of
Kent, "the jurisdiction of the court in another state is not
impeached, either as to the subject matter or the person." Only
then is "the record of the judgment . . . entitled to full faith
and credit." 1 Kent, Commentaries (2d Ed., 1832) *261 n.b. The
essence of the matter was thus put in what
Thompson v.
Whitman adopted from Story:
"The Constitution did not mean to confer [upon the States] a new
power or jurisdiction, but simply to regulate the effect of the
acknowledged jurisdiction over persons and things within their
territory. [
Footnote 3]"
18 Wall.
85 U. S. 457,
85 U. S. 462.
In short, the Full Faith and Credit Clause puts the Constitution
behind a judgment, instead of the too fluid, ill defined concept of
"comity." [
Footnote 4]
Page 325 U. S. 229
But the Clause does not make a sister-State judgment a judgment
in another State. The proposal to do so was rejected by the
Philadelphia Convention. 2 Farrand, The Records of the Federal
Convention of 1787, 447, 448. [
Footnote 5] "To give it the force of a judgment in another
state, it must be made a judgment there."
McElmoyle
v. Cohen, 13 Pet. 312,
38 U. S. 325.
It can be made a judgment there only if the court purporting to
render the original judgment had power to render such a judgment. A
judgment in one States is conclusive upon the merits in every other
State, but only if the court of the first State had power to pass
on the merits -- had jurisdiction, that is, to render the
judgment.
"It is too late now to deny the right collaterally to impeach a
decree of divorce made in another state by proof that the court had
no jurisdiction, even when the record purports to show
jurisdiction. . . ."
It was "too late" more than forty years ago.
German Savings
& Loan Society v. Dormitzer, 192 U.
S. 125,
192 U. S.
128.
Under our system of law, judicial power to grant a divorce --
jurisdiction, strictly speaking -- is founded on domicil.
Bell
v. Bell, 181 U. S. 175;
Andrews v. Andrews, 188 U. S. 14. The
framers of the Constitution were familiar with this jurisdictional
prerequisite, and, since 1789, neither this Court nor any other
court in the English-speaking world has questioned it. Domicil
implies a nexus between person and place of such permanence as to
control the creation of legal relations and responsibilities of the
utmost significance. The domicil of one spouse within a State gives
power to that State, we have held, to dissolve
Page 325 U. S. 230
a marriage wheresover contracted. In view of
Williams v.
North Carolina, supra, the jurisdictional requirement of
domicil is freed from confusing refinements about "matrimonial
domicil,"
see Davis v. Davis, 305 U. S.
32,
305 U. S. 41,
and the like. Divorce, like marriage, is of concern not merely to
the immediate parties. It affects personal rights of the deepest
significance. It also touches basic interests of society. Since
divorce, like marriage, creates a new status, every consideration
of policy makes it desirable that the effect should be the same
wherever the question arises.
It is one thing to reopen an issue that has been settled after
appropriate opportunity to present their contentions has been
afforded to all who had an interest in its adjudication. This
applies also to jurisdictional questions. After a contest, these
cannot be relitigated as between the parties.
Forsyth v.
Hammond, 166 U. S. 506,
166 U. S. 517;
Chicago Life Ins. Co. v. Cherry, 244 U. S.
25,
244 U. S. 30;
Davis v. Davis, supra. But those not parties to a
litigation ought not to be foreclosed by the interested actions of
others, especially not a State which is concerned with the
vindication of its own social policy and has no means, certainly no
effective means, to protect that interest against the selfish
action of those outside its borders. The domiciliary origin should
not be bound by an unfounded, even if not collusive, recital in the
record of a court of another State. As to the truth or existence of
a fact, like that of domicil, upon which depends the power to exert
judicial authority, a State not a party to the exertion of such
judicial authority in another State, but seriously affected by it,
has a right, when asserting its own unquestioned authority, to
ascertain the truth or existence of that crucial fact. [
Footnote 6]
Page 325 U. S. 231
These considerations of policy are equally applicable whether
power was assumed by the court of the first State or claimed after
inquiry. This may lead, no doubt, to conflicting determinations of
what judicial power is founded upon. Such conflict is inherent in
the practical application of the concept of domicil in the context
of our federal system. [
Footnote
7]
See Worcester County Trust Co. v. Riley,
302 U. S. 292;
Texas v. Florida, 306 U. S. 398;
District of Columbia v. Murphy, 314 U.
S. 441. What was said in
Worcester County Trust Co.
v. Riley, supra, is pertinent here.
"Neither the Fourteenth Amendment nor the full faith and credit
clause . . . requires uniformity in the decisions of the courts of
different states as to the place of domicil, where the exertion of
state power is dependent upon domicil within its boundaries."
302 U.S.
292,
302 U. S. 299.
If a finding by the court of one State that domicil in another
State has been abandoned were conclusive upon the old domiciliary
State, the policy of each State in matters of most intimate concern
could be subverted by the policy of every other State. This Court
has long ago denied the existence of such destructive power. The
issue has a far reach. For domicil is the foundation of probate
jurisdiction, precisely as it is that of divorce. The ruling in
Tilt v. Kelsey, 207 U. S. 43,
regarding the probate of a will is equally applicable to a
sister-State divorce decree:
"The full faith and credit due to the proceedings of the New
Jersey court do not require that the courts of New York shall be
bound by its adjudication on the question of domicil. On the
contrary, it is open to the courts of any state, in the trial of a
collateral issue, to determine, upon the evidence produced, the
true domicil of the deceased."
207 U. S. 207 U.S.
43,
207 U. S.
53.
Page 325 U. S. 232
Although it is now settled that a suit for divorce is not an
ordinary adversary proceeding, it does not promote analysis, as was
recently pointed out, to label divorce proceedings as actions
in rem. Williams v. North Carolina, supra, at
317 U. S. 297.
But, insofar as a divorce decree partakes of some of the
characteristics of a decree
in rem, it is misleading to
say that all the world is party to a proceeding
in rem.
See Brigham v. Fayerweather, 140 Mass. 411, 413, 5 N.E.
265, quoted in
Tilt v. Kelsey, supra, at
207 U. S. 52.
All the world is not party to a divorce proceeding. What is true is
that all the world need not be present before a court granting the
decree, and yet it must be respected by the other forty-seven
States provided -- and it is a big proviso -- the conditions for
the exercise of power by the divorce-decreeing court are validly
established whenever that judgment is elsewhere called into
question. In short, the decree of divorce is a conclusive
adjudication of everything except the jurisdictional facts upon
which it is founded, and domicil is a jurisdictional fact. To
permit the necessary finding of domicil by one State to foreclose
all States in the protection of their social institutions would be
intolerable.
But to endow each State with controlling authority to nullify
the power of a sister State to grant a divorce based upon a finding
that one spouse had acquired a new domicil within the divorcing
State would, in the proper functioning of our federal system, be
equally indefensible. No State court can assume comprehensive
attention to the various and potentially conflicting interests that
several States may have in the institutional aspects of marriage.
The necessary accommodation between the right of one State to
safeguard its interest in the family relation of its own people and
the power of another State to grant divorces can be left to neither
State.
The problem is to reconcile the reciprocal respect to be
accorded by the members of the Union to their adjudications
Page 325 U. S. 233
with due regard for another most important aspect of our
federalism whereby "the domestic relations of husband and wife . .
. were matters reserved to the States,"
Popovici v. Agler,
280 U. S. 379,
280 U. S.
383-384, and do not belong to the United States.
In
re Burrus, 136 U. S. 586,
136 U. S.
593-594. The rights that belong to all the States, and
the obligations which membership in the Union imposes upon all, are
made effective because this Court is open to consider claims, such
as this case presents, that the courts of one State have not given
the full faith and credit to the judgment of a sister State that is
required by Art. IV, § 1 of the Constitution.
But the discharge of this duty does not make of this Court a
court of probate and divorce. Neither a rational system of law nor
hard practicality calls for our independent determination, in
reviewing the judgment of a State court, of that rather elusive
relation between person and place which establishes domicil. "It is
not for us to retry the facts," as was held in a case in which,
like the present, the jurisdiction underlying a sister-State
judgment was dependent on domicil.
Burbank v. Ernst,
232 U. S. 162,
232 U. S. 164.
The challenged judgment must, however, satisfy our scrutiny that
the reciprocal duty of respect owed by the States to one another's
adjudications has been fairly discharged, and has not been evaded
under the guise of finding an absence of domicil, and therefore a
want of power in the court rendering the judgment.
What is immediately before us is the judgment of the Supreme
Court of North Carolina. 224 N.C. 183, 29 S.E.2d 744. We have
authority to upset it only if there is want of foundation for the
conclusion that that Court reached. The conclusion it reached turns
on its finding that the spouses who obtained the Nevada decrees
were not domiciled there. The fact that the Nevada court found that
they were domiciled there is entitled to respect, and more. The
burden of undermining the verity which the Nevada decrees
import
Page 325 U. S. 234
rests heavily upon the assailant. But, simply because the Nevada
court found that it had power to award a divorce decree cannot, we
have seen, foreclose reexamination by another State. Otherwise, as
was pointed out long ago, a court's record would establish its
power, and the power would be proved by the record. Such circular
reasoning would give one State a control over all the other States
which the Full Faith and Credit Clause certainly did not confer.
Thompson v. Whitman, supra. If this Court finds that
proper weight was accorded to the claims of power by the court of
one State in rendering a judgment the validity of which is pleaded
in defense in another State, that the burden of overcoming such
respect by disproof of the substratum of fact -- here, domicil --
on which such power alone can rest was properly charged against the
party challenging the legitimacy of the judgment, that such issue
of fact was left for fair determination by appropriate procedure,
and that a finding adverse to the necessary foundation for any
valid sister-State judgment was amply supported in evidence, we
cannot upset the judgment before us. And we cannot do so even if we
also found, in the record of the court of original judgment,
warrant for its finding that it had jurisdiction. If it is a matter
turning on local law, great deference is owed by the courts of one
State to what a court of another State has done.
See Michigan
Trust Co. v. Ferry, 228 U. S. 346. But
when we are dealing, as here, with an historic notion common to all
English-speaking courts -- that of domicil -- we should not find a
want of deference to a sister State on the part of a court of
another State which finds an absence of domicil where such a
conclusion is warranted by the record.
When this case was first here, North Carolina did not challenge
the finding of the Nevada court that petitioners had acquired
domicils in Nevada. For her challenge of the Nevada decrees, North
Carolina rested on
Haddock
v.
Page 325 U. S. 235
Haddock, 201 U. S. 562.
Upon retrial, however, the existence of domicil in Nevada became
the decisive issue. The judgments of conviction now under review
bring before us a record which may be fairly summarized by saying
that the petitioners left North Carolina for the purpose of getting
divorces from their respective spouses in Nevada, and, as soon as
each had done so and married one another, they left Nevada and
returned to North Carolina to live there together as man and wife.
Against the charge of bigamous cohabitation under § 14-183 of the
North Carolina General Statutes, petitioners stood on their Nevada
divorces and offered exemplified copies of the Nevada proceedings.
[
Footnote 8] The trial judge
charged that the State had the burden of proving beyond a
reasonable doubt that (1) each petitioner was lawfully married to
one person; (2) thereafter, each petitioner contracted a second
marriage with another person outside North Carolina; (3) the
spouses of petitioners were living at the time of this second
marriage; (4) petitioners cohabited with one another in North
Carolina after the second marriage. The burden, it was charged,
then devolved upon petitioners "to satisfy the trial jury, not
beyond a reasonable doubt nor by the greater weight of the
evidence, but simply to satisfy" the jury from all the evidence,
that petitioners were domiciled in Nevada at the time they obtained
their divorces. The court further charged that "the recitation" of
bona fide domicil in the Nevada decree
Page 325 U. S. 236
was "
prima facie evidence" sufficient to warrant a
finding of domicil in Nevada, but not compelling "such an
inference." If the jury found, as they were told, that petitioners
had domicils in North Carolina and went to Nevada "simply and
solely for the purpose of obtaining" divorces, intending to return
to North Carolina on obtaining them, they never lost their North
Carolina domicils, nor acquired new domicils in Nevada. Domicil,
the jury was instructed, was that place where a person
"has voluntarily fixed his abode . . . not for a mere special or
temporary purpose, but with a present intention of making it his
home, either permanently or for an indefinite or unlimited length
of time."
The scales of justice must not be unfairly weighted by a State
when full faith and credit is claimed for a sister-State judgment.
But North Carolina has not so dealt with the Nevada decrees. She
has not raised unfair barriers to their recognition. North Carolina
did not fail in appreciation or application of federal standards of
full faith and credit. Appropriate weight was given to the finding
of domicil in the Nevada decrees, and that finding was allowed to
be overturned only by relevant standards of proof. There is nothing
to suggest that the issue was not fairly submitted to the jury, and
that it was not fairly assessed on cogent evidence.
State courts cannot avoid review by this Court of their
disposition of a constitutional claim by casting it in the form of
an unreviewable finding of fact.
Norris v. Alabama,
294 U. S. 587,
294 U. S. 590.
This record is barren of such attempted evasion. What it shows is
that petitioners, long-time residents of North Carolina, came to
Nevada, where they stayed in an auto court for transients, filed
suits for divorce as soon as the Nevada law permitted, married one
another as soon as the divorces were obtained, and promptly
returned to North Carolina to live. It cannot reasonably be claimed
that one set of inferences, rather
Page 325 U. S. 237
than another, regarding the acquisition by petitioners of new
domicils in Nevada could not be drawn from the circumstances
attending their Nevada divorces. It would be highly unreasonable to
assert that a jury could not reasonably find that the evidence
demonstrated that petitioners went to Nevada solely for the purpose
of obtaining a divorce, and intended all along to return to North
Carolina. Such an intention, the trial court properly charged,
would preclude acquisition of domicils in Nevada.
See
Williamson v. Osenton, 232 U. S. 619. And
so we cannot say that North Carolina was not entitled to draw the
inference that petitioners never abandoned their domicils in North
Carolina, particularly since we could not conscientiously prefer,
were it our business to do so, the contrary finding of the Nevada
court.
If a State cannot foreclose, on review here, all the other
States by its finding that one spouse is domiciled within its
bounds, persons may, no doubt, place themselves in situations that
create unhappy consequences for them. This is merely one of those
untoward results inevitable in a federal system in which regulation
of domestic relations has been left with the States, and not given
to the national authority. But the occasional disregard by any one
the reciprocal obligations of the forty-eight States to respect the
constitutional power of each to deal with domestic relations of
those domiciled within its borders is hardly an argument for
allowing one State to deprive the other forty-seven States of their
constitutional rights. Relevant statistics, happily, do not justify
lurid forebodings that parents without number will disregard the
fate of their offspring by being unmindful of the status of dignity
to which they are entitled. But, in any event, to the extent that
some one State may, for considerations of its own, improperly
intrude into domestic relations subject to the authority of the
other States, it suffices to suggest that any such indifference by
a State to the bond of the Union should be discouraged, not
encouraged.
Page 325 U. S. 238
In seeking a decree of divorce outside the State in which he has
theretofore maintained his marriage, a person is necessarily
involved in the legal situation created by our federal system
whereby one State can grant a divorce of validity in other States
only if the applicant has a
bona fide domicil in the the
court purporting to dissolve a prior legal marriage. The
petitioners therefore assumed the risk that this Court would find
that North Carolina justifiably concluded that they had not been
domiciled in Nevada. Since the divorces which they sought and
received in Nevada had no legal validity in North Carolina, and
their North Carolina spouses were still alive, they subjected
themselves to prosecution for bigamous cohabitation under North
Carolina law. The legitimate finding of the North Carolina Supreme
Court that the petitioners were not, in truth, domiciled in Nevada
was not a contingency against which the petitioners were protected
by anything in the Constitution of the United States. A man's fate
often depends, as for instance, in the enforcement of the Sherman
Law, on far greater risks that he will estimate
"rightly -- that is, as the jury subsequently estimates it, some
matter of degree. If his judgment is wrong, not only may he incur a
fine or a short imprisonment, as here; he may incur the penalty of
death."
Nash v. United States, 229 U.
S. 373,
229 U. S. 377.
The objection that punishment of a person for an act as a crime
when ignorant of the facts making it so involves a denial of due
process of law has more than once been overruled. In vindicating
its public policy, and particularly one so important as that
bearing upon the integrity of family life, a State, in punishing
particular acts, may provide that "he who shall do them shall do
them at his peril, and will not be heard to plead in defense good
faith or ignorance."
United States v. Balint, 258 U.
S. 250,
258 U. S. 252,
quoting
Shevlin-Carpenter Co. v. Minnesota, 218 U. S.
57,
218 U. S. 69-70.
Mistaken notions about one's legal rights are not sufficient to bar
prosecution for crime.
Page 325 U. S. 239
We conclude that North Carolina was not required to yield her
State policy because a Nevada court found that petitioners were
domiciled in Nevada when it granted them decrees of divorce. North
Carolina was entitled to find, as she did, that they did not
acquire domicils in Nevada, and that the Nevada court was therefore
without power to liberate the petitioners from amenability to the
laws of North Carolina governing domestic relations. And, as was
said in connection with another aspect of the Full Faith and Credit
Clause, our conclusion "is not a matter to arouse the
susceptibilities of the states, all of which are equally concerned
in the question and equally on both sides."
Fauntleroy v.
Lum, 210 U. S. 230,
210 U. S.
238.
As for the suggestion that
Williams v. North Carolina,
supra, foreclosed the Supreme Court of North Carolina from
ordering a second trial upon the issue of domicil, it suffices to
refer to our opinion in the earlier case.
Affirmed.
[
Footnote 1]
The prosecution was under § 14-183 of the General Statutes of
North Carolina (1943):
"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]
"Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every other
State."
[
Footnote 3]
It is interesting to note that this more critical analysis by
Mr. Justice Story of the nature of the Full Faith and Credit Clause
first appeared in 1833, twenty years after his loose
characterization in
Mills v. Duryee, supra. 3 Story,
Commentaries on the Constitution (1st ed., 1833) p. 183.
[
Footnote 4]
"There is scarcely any doctrine of the law which, so far as
respects formal and exact statement, is in a more unreduced and
uncertain condition than that which relates to the question what
force and effect should be given by the courts of one nation to the
judgments rendered by the courts of another nation."
James C. Carter and Elihu Root, Appellants' brief, p. 49, in
Hilton v. Guyot, 159 U. S. 113.
See, as to "comity,"
Loucks v. Standard Oil Co.,
224 N.Y. 99, 120 N.E. 198.
[
Footnote 5]
The reach of Congressional power given by Art. IV, § 1 is not
before us.
See Jackson, Full Faith and Credit -- the
Lawyer's Clause of the Constitution (1945) 45 Col.L.Rev. 1, 21-24;
Cook, Logical and Legal Bases of Conflict of Laws (1942) 98
et
seq.
[
Footnote 6]
We have not here a situation where a State disregards the
adjudication of another State on the issue of domicil squarely
litigated in a truly adversary proceeding.
[
Footnote 7]
Since an appeal to the Full Faith and Credit Clause raises
questions arising under the Constitution of the United States, the
proper criteria for ascertaining domicil, should these be in
dispute, become matters for federal determination.
See
Hinderlider v. La Plata River & Cherry Creek Ditch Co.,
304 U. S. 92,
304 U. S.
110.
[
Footnote 8]
As to petitioner Hendrix, these included the pleadings,
evidence, and decree. As to petitioner Williams, essentially the
same evidence with respect to his domicil is in the record from
witnesses in this case. It shows when Williams left North Carolina,
when he arrived in Nevada, the prompt filing of his divorce suit
(Nevada requires six weeks' residence prior to filing a suit for
divorce), marriage to petitioner Hendrix immediately after
petitioners were divorced, and his prompt return to North Carolina.
All of this bears on abandonment of the North Carolina domicil and
the intent to remain indefinitely elsewhere.
MR. JUSTICE MURPHY, concurring.
While I join in the opinion of the Court, certain considerations
compel me to state more fully my views on the important issues
presented by this case.
The State of Nevada has unquestioned authority, consistent with
procedural due process, to grant divorces on whatever basis it sees
fit to all who meet its statutory requirements. It is entitled,
moreover, to give to its divorce decrees absolute and binding
finality within the confines of its borders.
But, if Nevada's divorce decrees are to be accorded full faith
and credit in the courts of her sister states, it is essential that
Nevada have proper jurisdiction over the divorce proceedings. This
means that at least one of the parties to each
ex parte
proceeding must have a
bona fide domicil within Nevada for
whatever length of time Nevada may prescribe.
Page 325 U. S. 240
This elementary principle has been reiterated by this Court many
times. In
Bell v. Bell, 181 U. S. 175,
this Court held that, "because neither party had a domicil in
Pennsylvania," the Pennsylvania court had no jurisdiction to grant
a divorce and its decree "was entitled to no faith and credit in
New York or in any other state." The same rule was applied in the
companion case of
Streitwolf v. Streitwolf, 181 U.
S. 179. Referring to these two prior cases as holding
that "domicil was, in any event, the inherent element upon which
the jurisdiction must rest," the Court, in
Andrews v.
Andrews, 188 U. S. 14,
repeated that
bona fide domicil in a state is "essential
to give jurisdiction to the courts of such state to render a decree
of divorce which would have extraterritorial effect." The
Andrews case made it clear, moreover, that this
requirement of domicil is not merely a matter of state law. It was
stated specifically that, "without reference to the statute of
South Dakota, and in any event," domicil in South Dakota was
necessary. 188 U.S. at
188 U. S. 41.
All of the opinions in
Haddock v. Haddock, 201 U.
S. 562, recognized this principle, with Mr. Justice
Brown's dissenting opinion stating that
"the courts of one state may not grant a divorce against an
absent defendant to any person who has not acquired a
bona
fide domicil in that state."
Finally, in
Williams v. North Carolina, 317 U.
S. 287, the Court acknowledged that the plaintiff's
domicil in a state
"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."
See also Atherton v. Atherton, 181 U.
S. 155.
The jury has here found that the petitioner's alleged domicil in
Nevada was not a
bona fide one, which, in common and legal
parlance, means that it was acquired fraudulently,
Page 325 U. S. 241
deceitfully, or in bad faith. This means, in other words, that
the jury found that the petitioners' residence in Nevada for six
weeks was not accompanied by a
bona fide intention to make
Nevada their home and to remain there permanently, or at least for
an indefinite time, as required even by Nevada law.
Lamb v.
Lamb, 57 Nev. 421, 430, 65 P.2d 872. This conclusion is
supported by overwhelming evidence satisfying whatever standard of
proof may be propounded. Under these circumstances, there is no
reason to doubt the efficacy of jury trials in relation to the
question of domicil, or to speculate as to whether another jury
might have reached a different verdict on the same set of
facts.
Thus, the court below properly concluded that Nevada was without
jurisdiction so as to give extraterritorial validity to the divorce
decrees, and that North Carolina was not compelled by the
Constitution to give full faith and credit to the Nevada decrees.
North Carolina was free to consider the original marriages still in
effect, the Nevada divorces to be invalid, and the Nevada marriage
to be bigamous, thus giving the Nevada marriage the same force and
effect that Nevada presumably would have given it had Nevada
considered the original marriages still outstanding.
Cf. State
v. Zichfeld, 23 Nev. 304, 46 P. 802.
By being domiciled and living in North Carolina, petitioners
secured all the benefits and advantages of its government and
participated in its social and economic life. As long as
petitioners and their respective spouses lived there and retained
that domicil, North Carolina had the exclusive right to regulate
the dissolution of their marriage relationships. However harsh and
unjust North Carolina's divorce laws may be thought to be,
petitioners were bound to obey them while retaining residential and
domiciliary ties in that state.
Page 325 U. S. 242
No justifiable purpose is served by imparting constitutional
sanctity to the efforts of petitioners to establish a false and
fictitious domicil in Nevada. Such a result would only tend to
promote wholesale disregard of North Carolina's divorce laws by its
citizens, thus putting an end to "the existence of all efficacious
power on the subject of divorce."
Andrews v. Andrews,
supra, 188 U. S. 32.
Certainly no policy of Nevada dictates lending the full faith and
credit clause to protect actions grounded in deceit. Nevada has a
recognizable interest in granting only two types of
ex
parte divorces: (a) those effective solely within the borders
of Nevada, and (b) those effective everywhere on the ground that at
least one of the parties had a
bona fide domicil in the
state at the time the decree was granted. Neither type of divorce
is involved here. And Nevada has no interest that we can respect in
issuing divorce decrees with extraterritorial effect to those who
are domiciled elsewhere and who secure sham domicils in Nevada
solely for divorce purposes.
There are no startling or dangerous implications in the judgment
reached by the Court in this case. All of the uncontested divorces
that have ever been granted in the forty-eight states are as secure
today as they were yesterday, or as they were before our previous
decision in this case. Those based upon fraudulent domicils are
now, and always have been, subject to later reexamination, with
possible serious consequences.
Whatever embarrassment or inconvenience resulting to those who
have made property settlements, contracted new marriages, or
otherwise acted in reliance upon divorce decrees obtained under
conditions found to exist in this case is not insurmountable. The
states have adequate power, if they desire to exercise it, to enact
legislation providing for means of validating any such property
settlements or marriages, or of relieving persons from other
unfortunate consequences.
Page 325 U. S. 243
Nor are any issues of civil liberties at stake here. It is
unfortunate that the petitioners must be imprisoned for acts which
they probably committed in reliance upon advice of counsel, and
without intent to violate the North Carolina statute. But there are
many instances of punishment for acts whose criminality was
unsuspected at the time of their occurrence. Indeed, for nearly
three-quarters of a century or more, individuals have been punished
under bigamy statutes for doing exactly what petitioners have done.
People v. Dawell, 25 Mich. 247;
State v.
Armington, 25 Minn. 29;
People v. Baker, 76 N.Y. 78;
State v. Westmoreland, 76 S.C. 145, 56 S.E. 673.
Petitioners, especially, must be deemed to have been aware of the
possible criminal consequences of their actions in view of the
previously settled North Carolina law on the matter.
State v.
Herron, 175 N.C. 754, 94 S.E. 698. This case, then, adds no
new uncertainty, and comes as no surprise for those who act
fraudulently in establishing a domicil and who disregard the laws
of their true domiciliary states.
As Mr. Justice Holmes said in his dissenting opinion in the
Haddock case, 201 U.S. at
201 U. S. 628,
"I do not suppose civilization will come to an end whichever way
this case is decided." Difficult problems inevitably arise from the
fact that people move about freely among the forty-eight states,
each of which has its own policies and laws. Until the federal
government is empowered by the Constitution to deal uniformly with
the divorce problem, or until uniform state laws are adopted, it is
essential that definite lines of demarcation be made as regards the
scope and extent of the varying state practices.
See 91
Cong.Rec. 4238-4241 (May 3, 1945). This case illustrates the
drawing of one such line -- a line that has been drawn many times
before without too unfortunate dislocations resulting among those
citizens of a divorced status. There is no reason to believe that
any different or more
Page 325 U. S. 244
serious consequences will result from retracing that line
today.
THE CHIEF JUSTICE and MR. JUSTICE JACKSON join in these
views.
MR. JUSTICE RUTLEDGE, dissenting.
Once again, the ghost of "unitary domicil" returns on its
perpetual round, in the guise of "jurisdictional fact," to upset
judgments, marriages, divorces, undermine the relations founded
upon them, and make this Court the unwilling and uncertain arbiter
between the concededly valid laws and decrees of sister states.
From
Bell and
Andrews to
Davis to
Haddock to
Williams, and now back of
Haddock and
Davis through
Williams again
[
Footnote 2/1] -- is the maze the
Court has traveled in a domiciliary wilderness, only to come out
with no settled constitutional policy where one is needed most.
Nevada's judgment has not been voided. It could not be if the
same test applies to sustain it as upholds the North Carolina
conviction. [
Footnote 2/2] It
stands, with the marriages founded upon it, unimpeached. For all
that has been determined or could be, unless another change is in
the making, petitioners are lawful husband and wife in Nevada.
Williams v. North Carolina I, 317 U.
S. 287;
Williams v. North Carolina II, ante, p.
325 U. S. 226.
They may be such everywhere outside North Carolina. Lawfully wedded
also, in North Carolina, are the divorced spouse of one and his
wife, taken for all we know in reliance upon the Nevada decree.
[
Footnote 2/3] That is, unless
another jury shall find they
Page 325 U. S. 245
too are bigamists for their reliance. No such jury has been
impaneled. But, were one called, it could pronounce the Nevada
decree valid upon the identical evidence from which the jury in
this case drew the contrary conclusion. That jury, or it and
another, if petitioners had been tried separately, could have found
one guilty, the other innocent, upon that evidence unvaried by a
hair. And, by the Court's test, we could do nothing but sustain the
contradictory findings in all these cases.
I do not believe the Constitution has thus confided to the
caprice of juries the faith and credit due the laws and judgments
of sister states. Nor has it thus made that question a local matter
for the states themselves to decide. Were all judgments given the
same infirmity, the full faith and credit clause would be only a
dead constitutional letter.
I agree it is not the Court's business to determine policies of
divorce. But precisely its function is to lay the jurisdictional
foundations upon which the states' determinations can be made
effective within and without their borders. For, in the one case,
due process, in the other, full faith and credit, commands of equal
compulsion upon the estates and upon us, impose that duty.
I do not think we perform it -- we, rather, abdicate -- when we
confide the ultimate decision to the states or to their juries.
This we do when, for every case that matters, we make their
judgment conclusive. It is so, in effect, when the crucial concept
is as variable and amorphous as "domicil," is always a conclusion
of "ultimate fact," and can be established only by proof from
which, as experience shows,
Page 325 U. S. 246
contradictory inferences may be made as strikes the local
trier's fancy. The abdication only becomes more obviously explicit
when we avowedly confess that the faith and credit due may be
determined either way, wherever "it cannot reasonably be claimed
that one set of inferences, rather than another" could not be drawn
concerning the very matter determined by the judgment, and the
final choice upon such a balance is left with the local jury.
No more unstable foundation for state policies or marital
relations could be formulated or applied. In no region of
adjudication or legislation is stability more essential for
jurisdictional foundations. Beyond abnegating our function, we make
instability itself the constitutional policy when the crux is so
conceived and pivoted.
I
What, exactly are the effects of the decision? The Court is
careful not to say that Nevada's judgment is not valid in Nevada.
To repeat, the Court could not so declare it unless a different
test applies to sustain that judgment than supports North
Carolina's. Presumably the same standard applies to both, and each
state accordingly is free to follow its own policy, wherever the
evidence, whether the same or different, permits conflicting
inferences of domicil, as it always does when the question becomes
important. [
Footnote 2/4]
This must be true unless, contrary to the disclaimer, this Court
itself is "to retry the facts." The Court no more could say that
the Nevada evidence permitted no conclusion of domicil there than
it now can say the North Carolina evidence would not allow a
finding either way. This apparently is conceded. The proof was not
identical. But it was not so one-sided in either case that only one
conclusion was compelled. The evidence in Nevada was
Page 325 U. S. 247
neither that strong nor that weak. [
Footnote 2/5] Seldom, if ever, is it so.
The necessary conclusion follows that the Nevada decree was
valid and remains valid within her borders. So the marriage is good
in Nevada, but void in North Carolina, just as it was before
"the jurisdictional requirement of domicil [was] freed from
confusing refinements about 'matrimonial domicil,'
see Davis v.
Davis, 305 U. S. 32,
305 U. S.
41, and the like."
See also Haddock v. Haddock, 201 U.
S. 562.
The characterization "
in rem" has been dropped. But it
is clear from the result and from the opinion that the more
"confusing refinements" and consequences, including the anomalous
status
Haddock approved, have not completely disappeared.
We are not told definitely whether Nevada's adjudication or North
Carolina's must be respected, when the question is raised in some
of the other forty-six states. But one thing we do know. "
The
domiciliary origin should not be bound by
an unfounded,
even if not collusive, recital in the record of a court of
another State." The opinion goes on to repeat:
"If a finding by the court of one State that domicil in another
State has been abandoned were conclusive
upon the old
domiciliary State, the policy of each State in matters of most
intimate concern could be subverted by the policy of every other
State."
(Emphasis added.)
The question is not simply pertinent, it is imperative, whether
"matrimonial domicil" has not merely been recast
Page 325 U. S. 248
and returned to the play under the common law's more ancient
name of "domicil of origin." For North Carolina is the only state
which, upon the facts, conceivably could qualify either as
"matrimonial domicil" or as "domicil of origin," whether or not
they differ. Under the former conception, it was at least doubtful
whether sheer reexamination of "the jurisdictional fact" previously
determined could be made outside the state granting the divorce and
the state of "matrimonial domicil." [
Footnote 2/6] Now we are told the decree
"must be respected by the other forty-seven States,
provided
-- and it is a big proviso -- the conditions for the exercise
of power by the divorce-decreeing court are validly established
whenever that judgment is
elsewhere called into
question."
(Emphasis added.)
If this means what it says, the proviso is big. It swallows the
provision. Unless "matrimonial domicil," banished in
Williams
v. North Carolina I, has returned renamed in
Williams v.
North Carolina II, every decree becomes vulnerable in every
state. Every divorce, wherever granted, whether upon a residence of
six weeks, six months, or six years, may now be reexamined by every
other state, upon the same or different evidence, to redetermine
the "jurisdictional fact," always the ultimate conclusion of
"domicil." For the grounds of the decision wholly negate that its
effect can be limited to decrees of states having so-called
"liberal" divorce policies; or to decrees recently granted; or to
cases where different evidence is presented. It is implicit and
inherent in the "unitary-domicil, jurisdictional-fact,
permissible-inference" rule that any decree, granted after any
length of time, upon any ground for divorce, and however solid the
proof, may be reexamined either by "the state of domiciliary
origin" or by any other state, as the case uncertainly may be. And
all that is needed to disregard it is some evidence from which a
jury reasonably may conclude there was no domiciliary intent when
the decree was rendered. That is, unless the Court means to
reserve
Page 325 U. S. 249
decision upon the weight of the evidence, and thus "to retry the
facts," contrary to its declared intention, in some case or cases
not defined or indicated.
II
Obviously more is involved than full faith and credit for
judgments of other states. Beneath the judgment of Nevada lie her
statutory law and policy. These too are denied recognition. This is
not a case in which the denial extends, or could extend, to the
judgment alone. For the North Carolina verdict and judgment do not
purport to rest on any finding of fraud or other similar ground,
whereby the petitioners procured judgments from the Nevada courts
which the manner of their procurement vitiates. [
Footnote 2/7]
No such issue, impeaching the Nevada decree, has been made. The
state asked no instructions on such a theory, and none was given.
[
Footnote 2/8] The verdict and
judgment therefore
Page 325 U. S. 250
have not determined and do not rest upon any such ground.
In view of this fact, I am completely at loss to understand what
is meant, in the context of this case, by "an
unfounded,
even if
not collusive, recital" which the state of
domiciliary origin, perhaps others too, is free to disregard. The
statement itself negates collusion as a ground for the decision.
And, as I read the remainder of the opinion, it concedes, and must
concede, if the two judgments are to be tested alike, that the
Nevada decree was not unfounded. The shape the issues have taken
compels this conclusion.
Accordingly, the case must be considered as shown of any element
of fraud, deceit or evasion of Nevada's law, of showing that the
Nevada court was imposed upon in any way, or did other than apply
the Nevada law according to its true intent and purpose. It must be
taken also as devoid of any showing that Nevada failed in any way
to comply with every requirement this Court has made respecting
jurisdiction or due process of law, for rendering a valid divorce
decree.
Williams v. North Carolina, 317 U.
S. 287.
The case therefore stands stripped of every difference,
presently material, from the Nevada proceedings, save two. There
was none, jurisdictionally, in the issues. There was only different
evidence upon which the same issue was determined in opposite
fashions. And the states had different policies concerning
divorce.
The difference in the evidence affected solely events taking
place after the Nevada decree -- the return to North Carolina and
the cohabitation there. Ordinarily, valid judgments are not
overturned,
Schneiderman v. United States, 320 U.
S. 118, or disregarded upon such retroactive proof.
[
Footnote 2/9] But here, this proof
was not tendered in attack
Page 325 U. S. 251
upon the Nevada decree. It was offered and admitted exclusively
to relitigate the same issue that decree had determined, upon
adequate evidence and in full compliance with Nevada law and the
federal law giving Nevada jurisdiction to determine it.
Williams v. North Carolina I; Williams v. North Carolina
II. Its sole function was to show that petitioners did not
have the very intent the Nevada court, with eyes not blinded,
[
Footnote 2/10] had found they
possessed.
Moreover, the character of the Court's ruling makes the
difference in the evidence, as it bore upon the controlling issue,
of no materiality. It is not held that denial of credit will be
allowed only if the evidence is different or depending in any way
upon the character or the weight of the difference. The test is not
different evidence. It is evidence, whether the same or different,
and, if different, without regard to the quality of the difference
from which an opposing set of inferences can be drawn by the trier
of fact "not unreasonably." Presumably the Court will not "retry
the facts" in either case.
But it does not define "not unreasonably." It vaguely suggests a
supervisory function, to be exercised when the denial strikes its
sensibilities as wrong, by some not stated standard. So to suspend
the matter is not law. It is only added uncertainty.
If the Court means not "to retry the facts," the suggestion is
wholly out of place. Then the test will be as it is in other cases
where the question is whether a jury's verdict will be sustained
upon an issue alleging want of supporting evidence. There will be
no "weighing." There will be only examination for sufficiency, with
the limits marked by "scintillas" and the like. [
Footnote 2/11]
Page 325 U. S. 252
If this is the test, for all practical purposes, the Court might
as well declare outright that states of domiciliary origin are free
to deny faith and credit to divorces granted elsewhere. For the
case will be rare indeed where, by this standard, "domicil" can be
determined as a matter of law, when divorce has been secured after
departure from such a state. These are the only cases that matter.
The issue does not arise with stay-at-homes. With others, it always
can be raised, and nearly always with "some" evidence -- more than
a "scintilla" -- to sustain both contentions.
But if the test is different, "weighing" necessarily becomes
involved, and implicitly is what has been done in this case,
notwithstanding the disclaimer. In that event, the crux of
jurisdiction becomes the difference in the evidence; in this case,
the return to North Carolina and cohabitation there.
If this is the decision's intended effect, it should be squarely
so declared. Too much hangs for too many people and for the states
themselves upon beclouding it with a "different set of inferences
-- refusal to retry the facts" gloss or otherwise. It cannot be
assumed that the matter will affect only a few. For this has become
a nation of transient people. Lawyers everywhere advise for or
against divorce, and courts grant or deny it, depending not on the
probability that the case will come here, but on what is done here
with the few cases which do come. The matter is altogether too
serious, for too many, for glossing over the crucial basis of
decision.
Whether the one test or the other is intended, or perhaps still
another not suggested, North Carolina's action comes down to sheer
denial of faith and credit to Nevada's law and policy, not merely
to her judgment, and the decision here, to approval of this denial.
The real difference, in
Page 325 U. S. 253
my opinion, the only material one, as the issues and the
decision have been made on this record, is that one suit and
judgment took place in Nevada, the other in North Carolina, and the
two states have different policies relating to divorce. Nor does
the degree or quality of the difference in policies matter. It also
is not weighed. [
Footnote 2/12]
The difference may be small for anything that is said, yet there is
freedom to withhold credit.
If this is the test, every divorce granted a person who has come
from another state is vulnerable wherever state policies differ, as
they do universally if no account is taken of the weight of
difference.
It is always a serious matter for us to say that one state is
bound to give effect to another's decision, founded in its
different policy. That mandate I would not join in any case if not
compelled by the only authority binding both the states and
ourselves. Conceivably, it might have been held that the full faith
and credit clause has no application to the matters of marriage and
divorce. But the Constitution has not left open that choice. And
such has not been the course of decision. The clause applies, but
from today it would seem only to compel "respect," or something
less than faith and credit, whenever a jury concludes "not
unreasonably," by ultimate inference from the always conflicting
circumstantial evidence, that it should not apply. Wherever that
situation exists, the finding that there was no "
bona
fide" domiciliary intent comes, in every practical effect, to
this, and nothing more.
Permitting the denial is justified, it is said, because we must
have regard also for North Carolina's laws, policies and judgments.
And so we must. But thus to state the question is to beg the
controlling issue. By every test remaining effective, and not
disputed, Nevada had power to alter the petitioner's marital
status. She made the alteration. If it is valid, neither North
Carolina nor we
Page 325 U. S. 254
are free to qualify it by saying it shall not be effective there
while it is effective in Nevada, and stands without impeachment for
ineffectiveness there.
Just that denial is what the terms of the Constitution and the
Act of Congress implementing them forbid. It is exactly for the
situation where state policies differ that the clause and the
legislation were intended. Without such differences, the need for
constitutional limitation was hardly one of magnitude. The apparent
exceptions for fraud and want of jurisdiction were never intended
to enable the states to disregard the provision and each other's
policies, crystalized in judgment, when every requisite for
jurisdiction has been satisfied and no showing of fraud has been
presented. They have a different purpose, one consistent with the
constitutional mandate, not destructive of its effect. That purpose
is to make sure that the state's policy has been applied in the
judgment, not to permit discrediting it or the judgment when the
one validly crystalizes the other. Such an exception, grafted upon
the clause, but nullifies it. It does so totally when the weight
and quality of the difference in policies has no bearing on the
issue.
Lately, this fact has been recognized increasingly in relation
to other matters than divorce. [
Footnote 2/13] The very function of the clause is to
compel the states to give effect to the contrary policies of other
states when these have been validly embodied in judgment. To this
extent, the Constitution has foreclosed the freedom of the states
to apply their own local policies. The foreclosure was not intended
only for slight differences or for unimportant matters. It was also
for the most important ones. The Constitution was not dealing with
puny matters, or inconsequential limitations. If the impairment of
the power of the states is large, it is one the Constitution itself
has made. Neither
Page 325 U. S. 255
the states nor we are free to disregard it. The "local public
policy" exception is not an exception, properly speaking. It is a
nullifying compromise of the provision's terms and purpose.
The effort at such compromise, in matters of divorce and
remarriage, has not been successful. Together with the instrument
by which the various attempts have been made --
i.e., the
notion of "unitary domicil" constitutionalized as "jurisdictional
fact" -- this effort has been the source of the long confusion in
the circle of decision here. To it may be attributed the
reification of the marital status, now discarded in name, if not in
substance, and the splitting of the
res to make two people
husband and wife in one state, divorced in another.
Haddock v.
Haddock, supra; cf. Williams v. North Carolina II. Now it
leads to practical abandonment of the effort, of this Court's
function, and of the obligation placed upon the states, by
committing to their juries for all practical effects the final
choice to disregard it.
III
I do not concur in the abdication. I think a major operation is
required to prevent it. The Constitution does not mention domicil.
Nowhere does it posit the powers of the states or the nation upon
that amorphous, highly variable common law conception. Judges have
imported it. The importation, it should be clear by now, has failed
in creating a workable constitutional criterion for this delicate
region. In its origin, the idea of domicil was stranger to the
federal system and the problem of allocating power within it. The
principal result of transplanting it to constitutional soil has
been to make more complex, variable, and confusing than need be
inherently the allocation of authority in the federal scheme. The
corollary consequence for individuals has been more and more to
infuse with uncertainty, confusion, and caprice those human
relations which most require stability and depend for it upon how
the distribution of power is made.
Page 325 U. S. 256
In my opinion, these consequences are inevitable as long as
"unitary domicil" usurps the role of "jurisdictional fact" and is
applied under the "permissible inference" rule to turn questions of
power first for creating jurisdiction, then for nullifying the
effects of its exercise, to settle and then unsettle the human
relations resting upon the power's exertion. The conception has
outlived its jurisdictional usefulness unless caprice, confusion,
and contradiction are the desirable criteria and consequences of
jurisdictional conceptions.
Stripped of its common law gloss, the basic constitutional issue
inherent in the problem is whether the states shall have power to
adopt so-called "liberal" divorce policies and grant divorces to
persons coming from other states while there transiently or for
only short periods not sufficient in themselves, absent other
objective criteria, to establish more than casual relations with
the community. One could understand and apply, without decades of
confusion, a ruling that transient divorces, founded on fly
by-night "residence," are invalid where rendered as well as
elsewhere; in other words, that a decent respect for sister states
and their interests requires that each, to validly decree divorce,
do so only after the person seeking it has established connections
which give evidence substantially and objectively that he has
become more than casually affiliated with the community. Until
then, the newcomer would be treated as retaining his roots, for
this purpose, as so often happens for others, at his former place
of residence. One equally could understand and apply with fair
certainty an opposite policy frankly conceding state power to grant
transient or short-term divorces, provided due process requirements
for giving notice to the other spouse were complied with.
Either solution would entail some attenuation of state power.
But that would be true of any other which would not altogether
leave the matter to the states, and thus
Page 325 U. S. 257
nullify the constitutional command. Strong considerations could
be stated for either choice. The one would give emphasis to the
interests of the states in maintaining locally prevailing sentiment
concerning familial and social institutions. The other would regard
the matter as more important from the standpoint of individual than
of institutional relations and significance. But either choice
would be preferable to the prevailing attempt at compromise founded
upon the "unitary domicil-jurisdictional fact-permissible
inference" rule.
That compromise gives effect to neither policy. It vitiates
both, and does so in a manner wholly capricious alike for the
institutional and the individual aspects of the problem. The
element of caprice lies in the substantive domiciliary concept
itself, and also in the mode of its application.
Domicil, as a substantive concept, steadily reflects neither a
policy of permanence nor one of transiency. It rather reflects both
inconstantly. The very name gives forth the idea of home, with all
its ancient associations of permanence. But "home" in the modern
world is often a trailer or a tourist camp. Automobiles, nationwide
business, and multiple family dwelling units have deprived the
institution, though not the idea, of its former general fixation to
soil and locality. But, beyond this, "home" in the domiciliary
sense can be changed in the twinkling of an eye, the time it takes
a man to make up his mind to remain where he is when he is away
from home. He need do no more than decide, by a flash of thought,
to stay "either permanently or for an indefinite or unlimited
length of time." [
Footnote 2/14]
No other connection of permanence is
Page 325 U. S. 258
required. All of his belongings, his business, his family, his
established interests and intimate relations may remain where they
have always been. Yet if he is but physically present elsewhere,
without even bag or baggage, and undergoes the mental flash, in a
moment he has created a new domicil, though hardly a new home.
Domicil thus combines the essentially contradictory elements of
permanence and instantaneous change. No legal conception, save
possibly "jurisdiction," of which it is an elusive substratum,
affords such possibilities for uncertain application. The only
thing certain about it, beyond its uncertainty, is that one must
travel to change his domicil. But he may travel without changing
it, even remain for a lifetime in his new place of abode without
doing so. Apart from the necessity for travel, hardly evidentiary
of stabilized relationship in a transient age, the criterion comes
down to a purely subjective mental state, related to remaining for
a length of time never yet defined with clarity.
With the crux of power fixed in such a variable, small wonder
that the states vacillate in applying it, and this Court
ceaselessly seeks without finding a solution for its quandary. But
not all the vice lies in the substantive conception. Only lawyers
know, unless now it is taxpayers [
Footnote 2/15] and persons divorced, how rambling is
the scope of facts from which proof is ever drawn to show and
negate the ultimate conclusion of subjective "fact." They know, as
do the courts and other tribunals which wrestle with the problem,
how easily facts procreative of conflicting inferences may be
marshalled, and how conjectural is the
Page 325 U. S. 259
outcome. There is no greater legal gamble. Rare is the
situation, where much is at stake, in which conflicting
circumstances cannot be shown, and where, accordingly, conflicting
ultimate inferences cannot be drawn.
The essentially variable nature of the test lies, therefore, as
much in the proof and the mode of making the conclusion as in the
substantive conception itself. When what must be proved is a
variable, the proof and the conclusion which follows upon it
inevitably take on that character. The "unitary domicil
jurisdictional fact-permissible inference" variable not only is an
inconstant, vacillating pivot for allocating power. It is
inherently a surrender of the power to make the allocation.
That effect is not nullified by vague reservation of supervisory
intent. For supervision in any case that matters -- that is,
wherever the issue is crucial -- nullifies the test. I think escape
should be forthright and direct. It can be so only if the attempt
to compromise what will not yield to compromise is forsworn, with
the ancient gloss that serves only to conceal in familiar formula
its essentially capricious, and therefore nullifying, character.
This discarded, choice then would be forced between the ideas of
transiency with due process safeguards and some minimal
establishment of more than casual or transitory relations in the
new community, giving the newcomer something of objective substance
identifying him with its life.
With this choice made, objective standards of proof could apply,
for the thing to be proved would be neither subjective nor so
highly variable as inference of state of mind in ambiguous
situation always must be. Neither domicil's sharp subjective
exclusions between the old and the new nor its effort to probe the
unprovable workings of thought at some past moment, as in relation
to the length of time one purposed remaining or whether there was
vestigial and contingent intent to return, would be material.
Page 325 U. S. 260
With the subjective substratum removed, the largest source of
variable and inconstant decision would disappear. This would be
true whether transiency guarded by due process or some more
established but objectively determinable relation with the
community were chosen for the standard to turn the existence of
power. Either choice would be preferable to the variable which can
give only inconstant and capricious effects, nullifying both
policies.
If, by one choice, states of origin were forced to modify their
local policies by giving effect to the different policies of other
states when crystalized in valid judgments, that would be no more
than the Constitution in terms purports to require. And it may be
doubted their surrender would be much greater in practical effects
than the present capricious, and therefore deceptive, system brings
about. [
Footnote 2/16] If, by
some more restrictive choice, states now free to give essentially
transient divorce were required
Page 325 U. S. 261
to modify that policy for locally valid effects, within the
limits of any objective standard that conceivably would be
acceptable for constitutional purposes, the obligations they owe to
the nation and to sister states would seem amply to justify that
modest curtailment of their power. It is hard to see what
legitimate substantial interest a state may have in providing
divorces for persons only transiently there, or for newcomers
before they have created, by reasonable length of stay or other
objective standards, more than fly-by-night connections.
I therefore dissent from the judgment which, in my opinion, has
permitted North Carolina, at her substantially unfettered will, to
deny all faith and credit to the Nevada decree without in any way
impeaching or attempting to impeach that judgment's constitutional
validity. But if she is not to be required thus to give the faith
and credit due, in my opinion, she should not be allowed to deny it
by any standard of proof which is less than generally is required
to overturn or disregard a judgment upon direct attack.
Cf.
Schneiderman v. United States, 320 U.
S. 118. The solemnity of the judicial act and the very
minimum of "respect" due the action of a sister state should compel
adherence to this standard, though doing so would not give the full
faith and credit which the Constitution commands. To approximate
the constitutional policy would be better than to nullify it.
[
Footnote 2/1]
Cf. text
infra, 325 U.
S.
[
Footnote 2/2]
Presumably, it would be our function "to retry the facts" no
more if the Nevada decree were immediately under challenge here
than it is to do so when the North Carolina judgment is in issue.
It would seem, therefore, that we owe the same deference to
Nevada's finding of domicil as we do to North Carolina's.
Cf. text at
325
U.S. 226fn2/4|>note 4
et seq.
[
Footnote 2/3]
The record indicates that Mr. Hendrix "had brought no divorce
proceeding against the
feme defendant prior to the first
trial of this cause, . . . but that he has since and remarried."
Although the evidence shows institution of this proceeding, it does
not show a decree was entered prior to his remarriage. Whether or
not he actually relied upon the Nevada decree, thousands of spouses
so divorced do so rely, thus founding new relations which are
equally subject to invalidation by jury finding, and are always
beclouded by a judgment like that rendered in this case.
[
Footnote 2/4]
Cf. text at notes
325
U.S. 226fn2/2|>2,
325
U.S. 226fn2/5|>5,
325
U.S. 226fn2/7|>7,
325
U.S. 226fn2/9|>9,
325
U.S. 226fn2/11|>11
et seq.
[
Footnote 2/5]
The Nevada court knew that petitioners recently had come from
North Carolina, resided in tourist quarters, an auto court, and, by
inference, at least, that they had come together. There was in the
facts sufficient basis for conclusion that they had no "
bona
fide" intention of remaining permanently or indefinitely,
after the decrees were rendered, if the court had wished to draw
that conclusion. Credibility in such circumstances is always for
the trier of fact.
Worcester County Trust Co. v. Riley,
302 U. S. 292,
302 U. S. 299;
Burbank v. Ernst, 232 U. S. 162,
232 U. S.
164.
[
Footnote 2/6]
Haddock v. Haddock, 201 U. S. 562,
201 U. S.
572.
[
Footnote 2/7]
The case was not tried on any theory that Nevada's court was
defrauded, or her law evaded. No effort was made to bring it within
that well recognized exception to the binding effect of judgments
generally.
United States v. Throckmorton, 98 U. S.
61;
Toledo Scale Co. v. Computing Scale Co.,
261 U. S. 399. Nor
is that ground asserted here to support the denial of credit. It
was not suggested, and is not now, that Nevada either would, or
could be required to, set aside her judgment or reach a different
result, upon the evidence this record presents; or that she now is
bound to give full faith and credit to North Carolina's decision.
Nor has it been contended that the Nevada evidence was not adequate
to support her finding.
[
Footnote 2/8]
Petitioners' motion for judgment by nonsuit, which the court
denied, was grounded in part upon the absence of evidence of fraud
upon the Nevada court or law and alleged incompetence of such
evidence if tendered. They also objected to the portions of the
charge which submitted the issue of "
bona fide domicil"
without reference to the effect of the evidence as tending to
vitiate the Nevada decree. "
Bona fides" is inherently an
element in domiciliary intent. Merely adding the phrase as
qualifying adjective does not raise an issue of fraud. For this
reason, founded in the state of the record, the Court eschews
grounding the decision upon fraud or collusion.
[
Footnote 2/9]
Cf. Cochrane v. Deener, 95 U. S.
355;
United States v. Maxwell Land Grant Co.,
121 U. S. 325,
121 U. S. 381;
United States v. San Jacinto Tin Co., 125 U.
S. 273,
125 U. S. 300;
Lalone v. United States, 164 U. S. 255;
United States v. American Bell Tel. Co., 167 U.
S. 224.
See 9 Wigmore, Evidence (3rd ed.) §
2498.
[
Footnote 2/10]
Cf. 325
U.S. 226fn2/5|>note 5.
[
Footnote 2/11]
Cf. Commissioners of Marion County v. Clark,
94 U. S. 278,
94 U. S. 284;
Jones v. East Tennessee V. & G. R. Co., 128 U.
S. 443,
128 U. S. 445;
Tiller v. Atlantic Coast Line R. Co., 318 U. S.
54,
318 U. S. 68;
Bailey v. Central Vermont R. Co., 319 U.
S. 350,
319 U. S.
353-354;
Tennant v. Peoria & P.U. R. Co.,
321 U. S. 29,
321 U. S. 35; 9
Wigmore, § 2494.
[
Footnote 2/12]
Cf. 325
U.S. 226fn2/16|>note 16.
[
Footnote 2/13]
Cf. Milwaukee County v. M. E. White Co., 296 U.
S. 268;
Titus v. Wallick, 306 U.
S. 282;
Texas v. Florida, 306 U.
S. 398,
306 U. S.
410.
[
Footnote 2/14]
Citation of authority is hardly needed for reference to the
difficulties courts have encountered in the effort to define this
intent. "
Animus manendi" is often a Latin refuge which
succeeds only in evading, not in resolving, the question with which
Job wrestled in his suffering.
[
Footnote 2/15]
Cf. Tilt v. Kelsey, 207 U. S. 43;
Iowa v. Slimmer, 248 U. S. 115;
Worcester County Trust Co. v. Riley, 302 U.
S. 292;
Texas v. Florida, 306 U.
S. 398;
Sweeney v. District of Columbia, 113
F.2d 25,
cert. denied, 310 U.S. 631.
Compare District
of Columbia v. Murphy, 314 U. S. 441,
with District of Columbia v. Pace, 320 U.
S. 698.
See 121 A.L.R. 1200; Tweed and Sargent,
Death and Taxes Are Certain -- But What of Domicile? (1939), 53
Harv.L.Rev. 68.
[
Footnote 2/16]
The residence requirements of the states for absolute divorce
vary depending at times on the ground for divorce relied on, the
place where the cause of action arose, or other factors. Speaking
generally, approximately 33 states require one year's residence in
most divorce actions. Nine states are more severe, 7 of these
requiring 2 years' residence and two a longer period. Six states
are less severe. Of these, North Carolina at present requires a 6
months' residence and the others six weeks to three months.
See Warren, Schouler Divorce Manual (1944) 705-720. Thus,
practically speaking, 39 states require one year or less, only 9
longer.
It seems questionable, at any rate, that the grounds for
divorce, as such, have "jurisdictional" significance. Presumably,
if length of residence is the controlling factor, all of the states
would be required to give effect to divorces granted by the 42
requiring one year or longer, unless the greatly preponderant
legislative judgment is to be disregarded. The permissible denial
accordingly would extend, at the most, to decrees granted by the
six states requiring less than one year. It is difficult to see how
greatly disruptive effects would be created for them or for the
other states by requiring them to approximate the generally
prevailing judgment as to the length of the period appropriate for
granting impeccable divorce.
MR. JUSTICE BLACK, dissenting.
Anglo-American law has, until today, steadfastly maintained the
principle that, before an accused can be convicted of crime, he
must be proven guilty beyond a reasonable doubt. These petitioners
have been sentenced to prison because they were unable to prove
their innocence to the satisfaction of the North Carolina. They
have been convicted under a statute so uncertain in its
Page 325 U. S. 262
application that not even the most learned member of the bar
could have advised them in advance as to whether their conduct
would violate the law. In reality, the petitioners are being
deprived of their freedom because the Nevada, through its
legislature and courts, follows a liberal policy in granting
divorces. They had Nevada divorce decrees which authorized them to
remarry. Without charge or proof of fraud in obtaining these
decrees, [
Footnote 3/1] and without
holding the decrees invalid under Nevada law, this Court affirms a
conviction of petitioners for living together as husband and wife.
I cannot reconcile this with the Full Faith and Credit Clause and
with congressional legislation passed pursuant to it.
It is my firm conviction that these convictions cannot be
harmonized with vital constitutional safeguards designed to
safeguard individual liberty and to unite all the states of this
whole country into one nation. The fact that two people will be
deprived of their constitutional rights impels me to protest as
vigorously as I can against affirmance of these convictions. Even
more, the Court's opinion today will cast a cloud over the lives of
countless numbers of the multitude of divorced persons in the
United States. The importance of the issues prompts me to set out
my views in some detail.
Statistics indicate that approximately five million divorced
persons are scattered throughout the forty-eight states. [
Footnote 3/2] More than 85% of these
divorces were granted in
Page 325 U. S. 263
uncontested proceedings. [
Footnote
3/3] Not one of this latter group can now retain any feeling of
security in his divorce decree. Ever present will be the danger of
criminal prosecution and harassment.
All these decrees were granted by state courts.
Erie R. Co.
v. Tompkins, 304 U. S. 64, and
cases following it, recognized the obvious truth, that rules of law
laid down by state courts are binding. These judicial "laws" are
represented by decrees, judgments, and court opinions. Today's
opinion, however, undermines and makes uncertain the validity of
every uncontested divorce decree. It wipes out every semblance of
their finality and decisiveness. It achieves what the Court terms
the "desirable effect" of providing the "same" quality to
every divorce decree,
Page 325 U. S. 264
"wherever the question arises" -- it endows them all alike with
the "same" instability and precariousness. The result is to
classify divorced persons in a distinctive and invidious category.
A year ago, a majority of this Court, in a workmen's compensation
case, declared that the Full Faith and Credit Clause of the
Constitution was a "nationally unifying force;" [
Footnote 3/4] today, as to divorce decrees, that
clause, coupled with a new content recently added to the due
process clause, has become a nationally disruptive force.
Uncontested divorce decrees are thus so degraded that a person who
marries in reliance upon them can be sent to jail. With much
language, the Court has in effect adopted the previously announced
hypothesis upon which the North Carolina Supreme Court permitted
another person to be sent to prison, namely, that
"the full faith and credit clause does not apply to actions for
divorce, and that the states alone have the right to determine what
effect shall be given to the decrees of other states in this class
of cases."
State v. Herron, 175 N.C. 754, 758, 94 S.E. 698, 700;
cf. Matter of Holmes' Estate, 291 N.Y. 261, 273, 52 N.E.2d
424.
The petitioners were married in Nevada. North Carolina has
sentenced them to prison for living together as husband and wife in
North Carolina. This Court today affirms those sentences without a
determination that the Nevada marriage was invalid under that
State's laws. This holding can be supported, if at all, only on one
of two grounds: (1) North Carolina has extraterritorial power to
regulate marriages within Nevada's territorial boundaries, or (2)
North Carolina can punish people who live together in that state as
husband and wife even though they have been validly married in
Nevada. A holding based on either of these two grounds encroaches
upon the general principle recognized by this Court that a marriage
validly consummated under one state's laws is valid in
Page 325 U. S. 265
every other state. [
Footnote
3/5] If the Court is today abandoning that principle, it takes
away from the states a large part of their hitherto plenary control
over the institution of marriage. A further consequence is to
subject people to criminal prosecutions for adultery and bigamy
merely because they exercise their constitutional right to pass
from a state in which they were validly married into another state
which refuses to recognize their marriage. Such a consequence runs
counter to the basic guarantees of our federal union.
Edwards
v. California, 314 U. S. 160. It
is true that persons validly married under the laws of one state
have been convicted of crime for living together in other states.
[
Footnote 3/6] But those state
convictions were not approved by this Court. And never before today
has this Court decided a case upon the assumption that men and
women validly married under the laws of one state could be sent to
jail by another state for conduct which involved nothing more than
living together as husband and wife.
The Court's opinion may have passed over the marriage question
on the unspoken premise that the petitioners were without legal
capacity to marry. If so, the primary question still would be
whether that capacity, and other issues subsidiary to it, are to be
determined under Nevada, North Carolina, or Federal law. Answers to
these questions
Page 325 U. S. 266
require a discussion of the divorce decrees awarded to the
petitioners in a Nevada court prior to their marriage there.
When the Nevada decrees were granted, the petitioners' former
spouses lived in North Carolina. When petitioners were tried and
convicted, one of their former spouses was dead, and the other had
remarried. Under the legal doctrine prevailing in Nevada and in
most of the states, these facts would make both the decrees immune
from attack, unless perhaps by persons other than the North
Carolina spouses whose property rights might be adversely affected
by the decrees. [
Footnote 3/7] So
far as appears from the record, no person's property rights were
adversely affected by the dissolution decrees. None of the parties
to the marriage, although formally notified of the Nevada divorce
proceedings, made any protest before or after the decrees were
rendered. The state did not sue here to protect any North
Carolinian's property rights or to obtain support for the families
which had been deserted. The result of all this is that the right
of the state to attack the validity of these decrees in a criminal
proceeding is today sustained, although the state's citizens, on
whose behalf it purports to act, could not have done so at the time
of the conviction in a civil proceeding. Furthermore, all of the
parties to the first two marriages were apparently satisfied that
their happiness did not lie in continued marital cohabitation.
North Carolina claims no interest in abridging their individual
freedom by forcing them to live together against their own desires.
The state's interest at the time these petitioners were
convicted
Page 325 U. S. 267
thus comes down to its concern in preserving a bare marital
status for a spouse who had already married again. If the state's
interest before that time be considered, it was to preserve a bare
marital status as to two persons who had sought a divorce and two
others who had not objected to it. It is an extraordinary thing for
a state to procure a retroactive invalidation of a divorce decree,
and then punish one of its citizens for conduct authorized by that
decree, when it had never been challenged by either of the people
most immediately interested in it. I would not permit such an
attenuated state interest to override the Full Faith and Credit
Clause of the Constitution and an Act of Congress pursuant to it.
[
Footnote 3/8] Here again, North
Carolina's right to attack this judgment, despite the Full Faith
and Credit Clause and the Congressional enactment, is not based on
Nevada law; nor could it be. For, in Nevada, even the Attorney
General could not have obtained a cancellation of the decree on the
ground that it was rendered without jurisdiction.
State v.
Moore, 46 Nev. 65, 207 P. 75. This makes it clear beyond all
doubt that North Carolina has not given these decrees the same
effect that they would be given in the courts of Nevada.
The Court permits North Carolina to disregard the decrees on the
following line of reasoning. No state need give full faith and
credit to a "void" decree. A decree
Page 325 U. S. 268
rendered by a court without "jurisdiction" is "void." No state
court has "jurisdiction" to grant a divorce unless one of the
parties is "domiciled" in the state. The North Carolina court has
decided that these petitioners had no "domicile" in Nevada.
Therefore, the Nevada court had no "jurisdiction," the decrees are
"void," and North Carolina need not give them faith or credit. The
solution to all these problems depends, in turn, upon the question
common to all of them -- does State law or Federal law apply?
The Constitution provides that
"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."
(Emphasis added.) Acting pursuant to this constitutional
authority, Congress in 1790 declared what law should govern and
what "Effect" should be given the judgments of state courts. That
statute is still the law. Its command is that they "shall have such
faith and credit given to them . . . as they have by law or usage
in the courts of the State from which they are taken." 28 U.S.C.
687. If, as the Court today implies, divorce decrees should be
given less effect than other court judgments, Congress alone has
the constitutional power to say so. We should not attempt to solve
the "divorce problem" by constitutional interpretation. At least,
until Congress has commanded a different "Effect" for divorces
granted on a short sojourn within a state, we should stay our
hands. A proper respect for the Constitution and the Congress would
seem to me to require that we leave this problem where the
Constitution did. If we follow that course, North Carolina cannot
be permitted to disregard the Nevada decrees without passing upon
the "faith and credit" which Nevada itself would give to them under
its own "law or usage." The Court has decided the matter as though
it were a purely
federal question; Congress and the
Page 325 U. S. 269
Constitution declared it to be a state question. The logic of
the Court does not persuade me that we should ignore these mandates
of the Congress and the Constitution. Nevada's decrees purported to
grant petitioners an absolute divorce with a right to remarry. No
"law or usage" of Nevada has been pointed out to us which would
indicate that Nevada would, under any circumstances, consider its
decrees so "void" as to warrant imprisoning those who have
remarried in reliance upon such existing and unannulled
decrees.
A judgment may be "void" in the general sense, and yet give rise
to rights and obligations. While on the books, its existence is a
fact, not a theory. And it may be said of decrees, later
invalidated, as of statutes held unconstitutional, that
"The past cannot always be erased by a new judicial declaration.
The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects -- with respect to particular
relations, individual and corporate, and particular conduct,
private and official . . . , an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be
justified."
Chicot County Drainage District v. Baxter State Bank,
308 U. S. 371,
308 U. S. 374.
Despite the conclusion that a judgment is "void," courts have, in
the interest of substantial justice and fairness, declined to
attribute a meaning to that word which would make such judgments,
for all purposes, worthless scraps of paper. [
Footnote 3/9] After a judgment has been declared "void,"
it still remains to decide as to the consequences attached to good
faith conduct between its rendition and its nullification. That
determination, I think, must, in this case, under the Full Faith
and Credit Clause, be made in
Page 325 U. S. 270
accordance with the "law or usage" of Nevada -- not of North
Carolina or the Federal government.
This brings me to the Court's holding that Nevada decrees were
"void." That conclusion rests on the premise that the Nevada court
was without jurisdiction because the North Carolina Court found
that the petitioners had no "domicile" in Nevada. The Nevada court
had based its decree on a finding that "domicile" had been
established by evidence before it. As I read that evidence, it
would have been sufficient to support the findings, had the case
been reviewed by us. Thus, this question of fact has now been
adjudicated in two state courts with different results. It should
be noted now that this Court very recently has said as to the Full
Faith and Credit Clause and the 1790 Congressional enactment,
that,
"From the beginning, this Court has held that these provisions
have made that which has been adjudicated in one state
res
judicata to the same extent in every other."
Magnolia Petroleum Co. v. Hunt, supra, at
320 U. S. 438.
[
Footnote 3/10] That it was
appropriate for
Page 325 U. S. 271
the Nevada court to pass upon the question of domicile can
hardly be doubted, since the concurring opinion in our first
consideration of this case correctly said that the "Nevada decrees
do satisfy the requirements of the Due Process Clause, and are
binding in Nevada upon the absent spouses. . . ."
317 U. S. 317 U.S.
287,
317 U. S. 306.
The Court today, however, seems to place its holding that the
Nevada decrees are void on the basis that the Due Process Clause
makes domicile an indispensable prerequisite to a state court's
"jurisdiction" to grant divorce. It further holds that this newly
created federal restriction of state courts projects fact issues
which the state courts cannot finally determine for themselves.
Davis v. Davis, 305 U. S. 32,
provides a possible exception to this holding. It decided that,
where both spouses appeared, a state court could finally determine
the question of domicile. Whether the Court today overrules that
case I cannot be sure. Certainly, if a state court cannot finally
determine the question of domicile because it is a federal
question, each divorce controversy involving domicile must be
subject to review here, whether both parties appear or not.
I cannot agree to this latest expansion of federal power and the
consequent diminution of state power over marriage and marriage
dissolution which the Court derives from adding a new content to
the Due Process Clause. The elasticity of that clause necessary to
justify this holding is found, I suppose, in the notion that it was
intended to give this Court unlimited authority to supervise all
assertions of state and federal power to set that they comport with
our ideas of what are "civilized standards of law."
See
Malinski v. New York, 324 U. S. 401. I
have not agreed that the Due Process Clause gives us any such
unlimited power, but, unless it does, I am unable to understand
from what source our authority to strip Nevada of its power over
marriage and divorce can be thought to derive. Certainly there is
no language in the Constitution
Page 325 U. S. 272
which even remotely suggests that the Federal government can fix
the limits of a state court's jurisdiction over divorces. In doing
so, the Court today exalts "domicile," dependent upon a mental
state, to a position of constitutional dignity. State jurisdiction
in divorce cases now depends upon a state of mind as to future
intent. Thus, "a hair perhaps divides" the constitutional
jurisdiction or lack of jurisdiction of state courts to grant
divorces.
Cf. Pollock v. Williams, 322 U. S.
4,
322 U. S. 21. And
this "hair-line" division involves a federal question, apparently
open to repeated adjudications at the instance of as many different
parties as can be found to raise it. Moreover, since it is a
federal question, each new litigant has a statutory right to ask us
to pass on it.
The two cases cited by the Court do not support this novel
constitutional doctrine.
Bell v. Bell, 181 U.
S. 175, held a Pennsylvania decree invalid on the ground
that there was no domicile shown. It specifically stated, however,
that Pennsylvania law required one year's domicile. Neither the
decision in that case nor any of the others on which it relied
rested on an interpretation of the Due Process Clause as requiring
"domicile." [
Footnote 3/11] Nor
did the decision in
Andrews v. Andrews, 188 U. S.
14, support today's Due Process Clause extension, for
there it was said that
". . . it is certain that the Constitution of the United States
confers no power whatever upon the government of the United States
to regulate marriage. . . . [
Footnote
3/12] "
Page 325 U. S. 273
It is a drastic departure from former constitutional doctrine to
hold that the Federal Constitution measures the power of state
courts to pass upon petitions for divorce. The jurisdiction of
state courts over persons and things within their boundaries has
been uniformly acknowledged through the years, without regard to
the length of their sojourn or their intention to remain. And that
jurisdiction has not been thought to be limited by the Federal
Constitution. Legislative dissolution of marriage was common in the
colonies and the states up to the middle of the Nineteenth Century.
A legislative dissolution of marriage, granted without notice or
hearing of any kind, was sustained by this Court long after the
Fourteenth Amendment was adopted.
Maynard v. Hill,
125 U. S. 190;
cf. Pennoyer v. Neff, 95 U. S. 714,
95 U. S.
734-735. The provision that made "due process of law" a
prerequisite to deprivation of "life, liberty, or property" was not
considered applicable to proceedings to sever the marital status.
It was only when legislatures attempted to create or destroy
financial obligations incident to marriage that courts began to
conclude that their Acts encroached upon the right to a judicial
trial in accordance with due process. [
Footnote 3/13]
Page 325 U. S. 274
The Court's holding now appears to overrule
Maynard v. Hill
sub silentio. This perhaps is in keeping with the idea that
the due process clause is a blank sheet of paper provided for
courts to make changes in the Constitution and the Bill of Rights
in accordance with their ideas of civilization's demands. I should
leave the power over divorces in the states. And, in the absence of
further federal legislation under the Full Faith and Credit Clause,
I should leave the effect of divorce decrees to be determined as
Congress commanded -- according to the laws and usages of the state
where the decrees are entered. [
Footnote 3/14]
Implicit in the majority of the opinions rendered by this and
other courts, which, whether designedly or not, have set up
obstacles to the procurement of divorces, is the assumption that
divorces are an unmitigated evil, and that the law can and should
force unwilling persons to live with each other. Others approach
the problem as one which can best be met by moral, ethical, and
religious teachings. Which viewpoint is correct is not our concern.
I am confident, however, that today's decision will no more aid in
the solution of the problem than the
Dred Scott decision
aided in settling controversies over slavery. This decision, I
think, takes the wrong road. Federal courts should have less, not
more, to do with divorces. Only when one state refuses to give that
faith and credit to a divorce decree which Congress and the
Constitution command should we enter this field.
Page 325 U. S. 275
The Court has not only permitted North Carolina to invalidate a
Nevada decree contrary to the law and usage of that State. It has
actually placed the burden of establishing the validity of that
decree on a defendant charged with crime. The only contested
question was the validity of the decree, since the petitioners
openly lived together as man and wife. And the only issue involved
concerning that validity was domicile. The burden of proving that
single issue upon which petitioners' liberty depended was cast upon
them.
Cf. State v. Herron, 175 N.C. 754, 759, 94 S.E. 698.
The jury was not charged that the state must prove the defendants
guilty; they were required to prove their innocence. The result is
that a state court divorce decree is no protection from being sent
to prison in another state unless a defendant charged with acting
as it authorized can prove the state court rendering the decree
made no error in resolving facts as to domicile. State court
judgments exalted by the Constitution and by Congress are thus
degraded to a lowly status by today's decision. State courts, no
less than Federal courts, were recognized by the founding fathers
as instruments of justice. I would continue to recognize them as
such. At the very minimum, we should not permit holders of these
decrees to be convicted of crime unless another state sustained the
burden of invalidating them. In a case involving nothing but
property, this Court has declined to permit a second marriage to be
impugned through an alleged prior marriage "save upon proof so
clear, strong, and unequivocal as to produce a moral conviction of
the existence of that impediment."
Sy Joc Lieng v. Sy
Quia, 228 U. S. 335,
228 U. S. 339. And
we declined to permit a naturalization decree to be set aside
because of an absence of "
clear, unequivocal, and convincing'
evidence." Schneiderman v. United States, 320 U.
S. 118, 320 U. S. 125,
320 U. S. 159,
320 U. S. 164,
320 U. S.
166-170. It is no justification for requiring a less
burdensome requirement here to say that, in these former cases, we
were
Page 325 U. S. 276
dealing with federal questions. That is exactly what is done
here. For the basic question in this case revolves around the Full
Faith and Credit constitutional provision and the 1790
Congressional Act. The standard of proof sustained is a federal,
not a state, standard. To require a defendant in a criminal case to
carry the burden of proof in sustaining his decree to prove his
innocence deprives him of all but the last shred of protection that
the Full Faith and Credit Clause and the 1790 Act of Congress
sought to give him.
Cf. Tot v. United States, 319 U.
S. 463,
319 U. S. 473.
It makes of human liberty a very cheap thing -- too cheap to be
consistent with the principles of a free government.
Moreover, the Court's unjustifiable devitalization of the Full
Faith and Credit Clause and the Act passed pursuant to it creates a
situation which makes the North Carolina statute an inescapable
trap for any person who places the slightest reliance on another
state's divorce decree -- a situation which a proper interpretation
of the federal question would avoid. The North Carolina statute
excludes from its coverage those who "have been lawfully divorced."
Who, after today's decision, can know or guess what "right" he can
safely exercise under a divorce decree in the intervening period
between the day of its entry and the day of its invalidation by a
jury? [
Footnote 3/15] This Court
has said that
"A statute which either forbids or requires the
Page 325 U. S. 277
doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to
its application violates the first essentials of due process of
law. [
Footnote 3/16]"
(Italics added). The North Carolina statute, as applied to
condemn these two petitioners to serve prison sentences, falls
precisely within this description. It does so because the sole
essential contested issue in this case was the validity of the
divorce decrees. Involved in this issue are questions of law mixed
with questions of fact which perplex lawyers and judges little less
than they baffle "men of common intelligence." Today's decision
adds new intricacies to the whole problem for lawyers to argue
about. It provides a new constitutional concept of "jurisdiction,"
which itself rests on a newly announced federal "concept of
domicile." No final determination as to its own "jurisdiction" can
hereafter be made by a state court in an uncontested divorce case.
And, so far as I can tell, no other court can ever finally
determine this question. It might do so as between any two
litigants, but I suppose the question of domicile would still be
left open for others to challenge. A man might be tried for bigamy
in two or more states. He might be convicted in one, or both, or
all, I suppose. The affirmance of these convictions shows that a
divorced person's liberty, so far as this North Carolina statute is
concerned, hinges on his ability to "guess" at what may ultimately
be the legal and factual conclusion resulting from a consideration
of two of the most uncertain word symbols in all the judicial
lexicon, "jurisdiction" and
Page 325 U. S. 278
"domicile." While the doctrine that "[i]gnorance of the law
excuses no man" has sometimes been applied with harsh consequences,
American courts have not been in the habit of making ignorance of
law the crucial and controlling element in a penitentiary offense.
Men have from time to time been sent to prison for violating court
commands which were later held invalid. [
Footnote 3/17] It is quite a different thing, however,
to send people to prison for lacking the clairvoyant gift of
prophesying when one judge or jury will upset the findings of fact
made by another.
In earlier times, some Rulers placed their criminal laws where
the common man could not see them, in order that he might be
entrapped into their violation. Others imposed standards of conduct
impossible of achievement to the end that those obnoxious to the
ruling powers might be convicted under the forms of law. No one of
them ever provided a more certain entrapment than a statute which
prescribes a penitentiary punishment for nothing more than a
layman's failure to prophesy what a judge or jury will do. This
Court's decision of a federal question today does just that.
MR. JUSTICE DOUGLAS joins in this dissent.
[
Footnote 3/1]
Previous decisions of this Court have asserted that a state
cannot justify its refusal to give another state's judgment full
faith and credit, at least in the absence of a showing that fraud
is an adequate ground for setting the judgment aside in the state
where it was rendered.
See Christmas v.
Russell, 5 Wall. 290,
72 U. S.
302-304;
Maxwell v.
Stuart, 22 Wall. 77,
89
U. S. 81;
Bigelow v. Old Dominion Copper Mining
& Smelting Co., 225 U. S. 111,
225 U. S.
134.
[
Footnote 3/2]
According to the best available statistics, more than five
million divorces were granted in the last twenty years, and the
annual rate is steadily increasing.
See Marriage and
Divorce Statistics, Bureau of the Census, 1942, and the same
reports for different years; Divorce, Depression and War, Social
Forces, University of North Carolina Press, Dec.1943, 191, 192;
Social and Statistical Analysis, Law and Contemporary Problems,
Duke University, Summer 1944; 940 Census, Bureau of the Census,
Vol. 4, Tables 29 and 48; Ogburn, Marriages, Births and Divorces,
Annals, American Academy, Sept.1943, 20.
[
Footnote 3/3]
This percentage is shown by the various "Marriage and Divorce"
publications of the Bureau of the Census, Department of Commerce.
Careful studies in particular localities have indicated that the
percentage of uncontested divorces is substantially above the 85%
shown in Census Reports. In Maryland, for instance, 3,306 petitions
for divorce were filed in 1929. 1,847 defendants failed to answer,
and the complainant had decrees in all but six cases.
"A total of 1,459 defendants, however, filed answers to the
plaintiff's allegations, and thus staged a technical contest. This
does not necessarily mean that a given defendant was opposed to a
decree's being granted. Of these, 1,459 technically contested
actions, 442 dropped out without coming to hearing, thus leaving
1,017 technical contests in the field. . . . If we accompany the
plaintiffs in the 1,017 remaining technical contests to the
hearing, we find little in the way of substantial contest. There is
a positive record of no contest in 808 cases; of a contest in 81
cases, and data are not available with respect to contest in 128
cases. . . . It seems likely that in less than 100 cases was there
at the hearing a contest concerning whether a decree should be
granted."
Marshall and May, The Divorce Court, 226, 227.
[
Footnote 3/4]
Magnolia Petroleum Co. v. Hunt, 320 U.
S. 430,
320 U. S.
439.
[
Footnote 3/5]
Loughran v. Loughran, 292 U. S. 216,
292 U. S.
223-225;
Dudley v. Dudley, 151 Iowa 142, 130
N.W. 785;
Ex parte Crane, 170 Mich. 651, 136 N.W. 587;
see Radin, Authenticated Full Faith and Credit Clause, 39
Ill.L.R. 1, 32.
See also Annotations, 60 Am.St.Rep. 942;
28 L.R.A.N.S., 754; 127 A.L.R. 437.
[
Footnote 3/6]
This question has arisen most frequently in the application of
state law making it a criminal offense for persons of different
races to live together as husband and wife.
See e.g., State v.
Bell, 7 Baxt. (Tenn.) 9. That case has been explained as a
holding that, "[w]ithout denying the validity of a marriage in
another State, the privileges flowing from marriage may be subject
to the local law."
Yarborough v. Yarborough, 290 U.
S. 202,
290 U. S. 218.
See also Greenhow v. James' Ex'r, 80 Va. 636.
Cf.
Pearson v. Pearson, 51 Cal. 120;
State v. Ross, 76
N.C. 242;
Whittington v. McCaskill, 65 Fla. 162, 61 So.
236.
[
Footnote 3/7]
See e.g., Foy v. Smith's Estate, 58 Nev. 371, 81 P.2d
1065;
Dwyer v. Nolan, 40 Wash. 459, 82 P. 746;
Chapman
v. Chapman, 224 Mass. 427, 113 N.E. 359;
In re Bingham's
Estate, 265 App.Div. 463, 39 N.Y.S.2d 756;
Moyer v.
Koontz, 103 Wis. 22, 79 N.W. 50;
Leathers v. Stewart,
108 Me. 96, 79 A. 16;
Kirschner v. Dietrich, 110 Cal. 502,
42 P. 1064; Shouler Divorce Manual 588-590.
[
Footnote 3/8]
Here too, we approach the domain where the line may be shadowy
between the individual rights of people to choose and keep their
own associates and the power of the state to prescribe who shall be
their most intimate associates. People in this country do not
"belong" to the state.
Le Meseuir v. Le Meseuir, [1895]
A.C. 517. Our Constitution preserves an area of individual freedom
which the state has no right to abridge. The flavor of the Court's
opinion is that a state has supreme power to control its
domiciliaries' conduct wherever they go, and that the state may
prohibit them from getting a divorce in another state. In this
aspect, the decision is not confined to a holding which relates to
state, as opposed to federal, rights. It contains a restriction of
individual, as opposed to state, rights.
See Radin,
supra, 28-32.
[
Footnote 3/9]
Gray v.
Brignardello, 1 Wall. 627,
68 U. S. 634;
Colvin v. Colvin, 2 Paige 385; Harper, The Myth of the
Void Divorce, 2 Law and Contemporary Problems, 335; The Validity of
Void Divorces, 79 U.Pa.L.Rev. 158; Tainter, Restitution of Property
Transferred Under Void or Later Reversed Judgments, 9 Miss L.J.
157.
[
Footnote 3/10]
The Nevada court had general jurisdiction to grant divorces, and
the complaint was required to allege domicile along with the other
requisite allegations. Domicile is as much an integral element in
the litigation as the proof of cruelty or any of the other
statutory grounds for divorce in Nevada. Labeling domicile as
"jurisdictional" does not make it different from what it was
before. Since the Nevada court had no power to render a divorce
without proof of facts other than domicile, there is nothing to
prevent this Court, under its expansive interpretation of the Due
Process Clause, from labeling these other facts as "jurisdictional"
and taking more state powers into the federal judicial orbit. Both
these types of facts, however labeled, were part of the controversy
which the Nevada legislature gave its courts power to resolve. The
state could label them "jurisdictional" and, having the exclusive
power to grant divorces, could attach such consequences to them as
it sees fit. But while Congress might, under the Full Faith and
Credit Clause, prescribe the "effect" in other states, of decrees
based on the finding, I do not think the Federal courts can, by
their mere label, attach jurisdictional consequences to the state's
requirement of domicile. Hence, I think the quoted statement from
the
Magnolia Petroleum case should control this case.
[
Footnote 3/11]
Streitwolf v. Streitwolf, 181 U.
S. 179, decided the same day as
Bell v. Bell,
held a North Dakota divorce decree invalid. That holding did not
rest on any "federal concept of domicile," but on the fact that
North Dakota law required "a domicil in good faith . . . for ninety
days as a prerequisite to jurisdiction of a case of divorce."
[
Footnote 3/12]
Andrews v. Andrews did not assert that any particular
federal constitutional provision made domicile a state
jurisdictional requirement in divorce cases. It emphasized state
and common law concepts of domicile and a state's power over its
"inhabitants." This emphasis led the Court to permit Massachusetts
to invalidate a South Dakota divorce decree even though both
husband and wife had appeared in the South Dakota Court.
Cf.
Davis v. Davis, supra. Massachusetts had a statute which
prohibited its "inhabitants" from going into another state to get a
divorce on account of conduct which occurred in Massachusetts, or
for conduct which would not have authorized a divorce under
Massachusetts law. This statute obviously rested on a hypothesis
that each state possesses these sweeping powers over individuals:
(1) power to make it a crime for its inhabitants to go to another
state to engage in conduct which might be lawful there; (2) power
to punish an inhabitant who went into another state and engaged in
conduct in harmony with that state's laws. If North Carolina has
attempted to impose such sweeping statutory prohibition upon its
inhabitants, it has not been called to our attention. In its
absence, the
Andrews decision gives no support to the
opinion and judgment in this case.
[
Footnote 3/13]
Wright v. Wright's Lessee, 2 Md. 429, 453;
Crane v.
Meginnis, 1 Gill & J., Md. 463;
Dwyer v. Nolan,
supra. See also Owens v. Claytor, 56 Md. 129; 2
Shouler, Marriage, Divorce, and Separation, Sixth Edition, Pars.
1471-1473; Validity of Legislative Divorce, 18 L.R.A. 95.
[
Footnote 3/14]
For an interesting discussion of the consequences of shifting
divorces from the legislatures to the courts, to be worked out in
the pattern of adversary controversies,
see Marshall and
May,
supra, Chap. VI, The Mirage of Judicial Controversy.
For bibliography of pertinent discussions,
see same,
338-341.
[
Footnote 3/15]
The answer is that, by reason of today's decision, no person can
exercise any right whatever under an uncontested divorce decree
without subjecting himself to possible penitentiary punishment.
"To make the enjoyment of a right dependent upon an impossible
condition is equivalent to an absolute denial of the right under
any condition, and such denial, enforced for a past act, is nothing
less than punishment imposed for that act."
Cummings v.
Missouri, 4 Wall. 277,
71 U. S. 327.
The "condition" here -- that a divorced person cannot remarry
without the possibility of being subjected to repeated prosecutions
in all the states where he lives as a married person -- would seem
to rank as "an impossible condition." If, therefore, the Court's
object is to make divorces dangerous, its object has been
accomplished. I think divorce policy is the business of the people
and their legislatures, not that of this Court.
[
Footnote 3/16]
Connally v. General Construction Co., 269 U.
S. 385,
269 U. S. 391.
See also Yu Cong Eng v. Trinidad, 271 U.
S. 500,
271 U. S. 518;
United States v. Cohen Grocery Co., 255 U. S.
81,
255 U. S. 89-93;
Lanzetta v. New Jersey, 306 U. S. 451;
Smith v. Cahoon, 283 U. S. 553;
Screws v. United States, ante, p.
325 U. S. 91;
cf. Nash v. United States, 229 U.
S. 373,
229 U. S. 377,
with Cline v. Frink Dairy, 274 U.
S. 445,
274 U. S. 457,
274 U. S.
463-464.
[
Footnote 3/17]
See e.g., People v. Morley, 72 Colo. 421, 211 P. 643;
Holbrook v. Prichard Motor Co., 27 Ga. App. 480, 109 S.E.
164;
St. George's Soc. v. Sawyer, 204 Iowa 103, 214 N.W.
877;
State v. LaFollette, 100 Or. 1, 196 P. 412.