Edward Douglass White

“ And as a corollary of the recognized power of a government thus to deal with its own citizen by a decree which would be operative within its own borders, irrespective of any extraterritorial efficacy, it follows that the right of another sovereignty exists, under principles of comity, to give to a decree so rendered such efficacy as to that government may seem to be justified by its conceptions of duty and public policy. ”

“ We are relieved of the necessity of entering upon such an inquiry, since it cannot be doubted that neither the practice nor the theories controlling in the countries on the continent lend the slightest sanction to the contention that a government, simply because one of the parties to a marriage was domiciled within its borders, where no matrimonial domicil ever existed, had power to render a decree dissolving a marriage, which, on principles of international law, was entitled to obligatory extraterritorial effect as to the other party to the marriage, a citizen of another country. ”

“ This becomes clear when it is perceived that if one government, because of its authority over its own citizens, has the right to dissolve the marriage tie as to the citizen of another jurisdiction, it must follow that no government possesses as to its own citizens, power over the marriage relation and its dissolution. ”

“ Before reviewing the authorities relied on to establish that a divorce proceeding is of the exceptional nature indicated, we propose first to consider the reasons advanced to sustain the contention. In doing so, however, it must always be borne in mind that it is elementary that where the full faith and credit clause of the Constitution is invoked to compel the enforcement in one state of a decree rendered in another, the question of the jurisdiction of the court by which the decree was rendered is open to inquiry. ”

“ But even if the true and controlling principles be for a moment put aside and mere considerations of inconvenience be looked at, it would follow that the preponderance of inconvenience would be against the contention that a state should have the power to exert its authority concerning the dissolution of marriage as to those not amenable to its jurisdiction. ”

“ States which decline, even upon principles of comity, to recognize and enforce as to their own citizens, within their own borders, decrees of divorce rendered in other states, when the court rendering the same had jurisdiction over only one of the parties. ”

“ NEW JERSEY.-Whilst the courts of New Jersey have exercised the power to grant a divorce from a nonresident defendant, upon constructive service, those courts have from the beginning applied to similar decrees of divorce granted in other states, when sought to be enforced in New Jersey against citizens of that state, a rule like the one prevailing in New York; that is, they decline to enforce them even upon the principles of comity. ”

“ It is no longer open to question that where husband and wife are domiciled in a state there exists jurisdiction in such state, for good cause, to enter a decree of divorce which will be entitled to enforcement in another state by virtue of the full faith and credit clause. ”

“ NEW YORK.-It is not questioned that the courts of New York are vested by statute with authority to render decrees of divorce where the plaintiff is domiciled within the state, which shall be operative in that state, even although the defendant is a nonresident and is proceeded against by constructive service. ”

“ It does not deprive a state of the power to render a decree of divorce susceptible of being enforced within its borders as to the person within the jurisdiction, and does not debar other states from giving such effect to a judgment of that character as they may elect to do under mere principles of state comity. ”

“ The husband deserted the wife in Ohio, went to Indiana, and there obtained a divorce, upon constructive service. The wife remained in Ohio, and three years after the granting of the Indiana divorce to the husband she sued him for divorce and for alimony, alleging abandonment and gross neglect of duty. The trial court granted a divorce and alimony. The husband appealed, but as such an appeal, under the statutes of Ohio, did not affect the decree as to the divorce, the district court considered only the question of alimony, and rendered a new decree for alimony against the defendant. ”

“ As then there can be no question that the wife was not constructively present in Connecticut by virtue of a martimonial domicil in that state, and was not there individually domiciled, and did not appear in the divorce cause, and was only constructively served with notice of the pendency of that action, it is apparent that the Connecticut court did not acquire jurisdiction over the wife within the fifth and seventh propositions; that is, did not acquire such jurisdiction by virtue of the domicil of the wife within the state or as the result of personal service upon her within its borders. ”

“ Whilst we may not avoid the duty of interpreting for ourselves the Constitution of the United States, in view of the persuasive force that would result if an overwhelming line of state decisions held the asserted doctrine, we come to consider that subject. ”

“ States where the power to decree a divorce is recognized, based upon the mere domicil of the plaintiff, although the decree when rendered will be but operative within the borders of the state, wholly irrespective of any force which may be given such decree in other states. Under this heading all of the states are embraced with the possible exception of Rhode Island. ”

“ Where the domicil of matrimony was in a particular state, and the husband abandons his wife and goes into another state in order to avoid his marital obligations, such other state to which the husband has wrongfully fled does not, in the nature of things, become a new domicil of matrimony, and, therefore, is not to be treated as the actual or constructive domicil of the wife ”

“ Indeed, a personal judgment so rendered is, by operation of the due process clause of the 14th Amendment, void as against the nonresident, even in the state where rendered; and, therefore, such nonresident, in virtue of rights granted by the Constitution of the United States, may successfully resist, even in the state where rendered, the enforcement of such a judgment. Pennoyer v. Neff, 95 U.S. 714, 24 L. ed. 565. The facts in that case were these: Neff, who was a resident of a state other than Oregon, owned a tract of land in Oregon. ”

“ The parties to a marriage, celebrated in Massachusetts, lived together in that state until the wife was taken to a Massachusetts asylum for the insane, when the husband abandoned her, acquired a domicil in New York, there brought suit on the ground of fraud for the annulment of the marriage, and obtained a decree. ”

“ The first husband, during the coverture, owned and alienated real estate in Maine, and a statute of that state provided that where a divorce was decreed for adultery by the husband, dower might be assigned to the divorced wife in the same manner as if the husband were dead. The divorced wife brought an action of dower in a court in Maine. The Rhode Island decree was held to possess validity in Maine and the statute relating to dower was decided not to be limited to divorces decreed within the state of Maine. ”

“ We repeat, therefore, that there is no class of cases in which the court is so liable to be imposed upon; and it seems to us of the utmost importance that the court should be possessed of the power in some form to revise their decisions in this class of cases ”

“ And it is pertinent here to remark that in Michigan (3 Mich. Comp. Laws [1897] ¶8617, chap. 232, § 2) the obtaining of a divorce in another state from a citizen of Michigan is made cause for the granting of a divorce in Michigan to its citizen. A like provision is also in the statutes of Florida. Fla. Rev. Stat. (1902) § 1480.
Under proposition d we embrace the remaining states, although as to several the classification may admit of doubt, viz., California, Illinois, Iowa, Kentucky, and Tennessee. ”

“ But the term 'wife' may be regarded as used to designate the person, and not the actual existing relation; or the petitioner may still be regarded as holding the relation of wife for the purpose of enforcing her claim to alimony.'
The following cases were cited by the court as sustaining the right of the wife to maintain an independent proceeding for alimony, even after the husband had obtained a divorce: Richardson v. ”

“ Thus the argument comes necessarily to this, that to preserve the lawful authority of all the states over marriage it is essential to decide that all the states have such authority only at the sufferance of the other states. And the considerations just stated serve to dispose of the argument that the contention relied on finds support in the ruling made in Maynard v. ”