Loker v. Gerald , 157 Mass. 42 ( 1892 )

Field, C. J.

We think that it appears that the divorce was obtained in the State of Colorado in accordance with the statutes of that State, and that the service of process on the wife, who is the demandant in the present action, was also in accordance with these statutes. The report recites that “ It was not claimed by the demandant that the said William Loker went to Colorado for the purpose of procuring a divorce,” and it must be taken that he was a bona fide resident of that State for more than a year before his suit for divorce was brought, which is the time required by the statutes of Colorado when the cause of divorce occurred in another State. A copy of the bill of complaint for divorce and of the summons was served on the wife in Massachusetts, where she lived; and the causes of divorce set forth by the bill were desertion for more than a year, and adultery, and the court after hearing evidence decreed a divorce from the bonds of matrimony for desertion. Great pains were taken to give the wife notice and an opportunity to be heard. The parties were married in Massachusetts and lived here as husband and wife, but the husband removed to Colorado, and we infer that the wife did not, but remained in Massachusetts, and we infer that the desertion on account of which the divorce was granted began in Massachusetts. The real contention is, that, as the wife was never domiciled in Colorado and.was never served with process in that State, the court had no jurisdiction over her to dissolve the marriage.

It must be noticed that, by our statutes, desertion continued for three years, and adultery, are causes of divorce, and that these statutes authorize divorces for causes occurring in other States, even when the parties were not married in this Commonwealth, and were not inhabitants of the Commonwealth at the time of the marriage, provided the libellant has resided in the Commonwealth for five years next preceding the filing of the libel and did not remove into the Commonwealth for the purpose of obtaining a divorce. Pub. Sts. c. 146, § 5. In practice here, divorces are often granted, in cases in which the libellee has never resided within the Commonwealth, upon service made by publication, and by a registered letter sent to the libellee, or by notice served upon him. or her in another State, as the court may direct. Pub. Sts. c. 146, §§ 9, 10.

The Pub. Sts. c. 146, § 41, provide that “ a divorce decreed in another State or country according to the laws thereof, and by a court having jurisdiction of the cause and of both the parties, shall be valid and effectual in this Commonwealth,” except in certain cases not material to the present inquiry. The various decisions of the courts of different States and countries on the question of the jurisdiction of a court to dissolve the bonds of matrimony when only the libellant is domiciled within the State or country to which the court belongs, and the effect to be given to a decree of divorce in other States or countries, if the court takes jurisdiction and enters a decree, are well known, and they are fully considered in 2 Bishop on Marriage, Divorce, and Separation, §§ 41-190. It is sufficient for the present case to say, that by our decisions, it not appearing that the wife separated from her husband for justifiable cause, her domicil followed his, and that therefore, for the purpose of divorce, the court in Colorado had jurisdiction of both the parties within the meaning of the statute. The fact that our courts grant divorces under somewhat similar circumstances is a reason why, as a matter of comity, we should recognize the validity of this divorce. Burlen v. Shannon, 115 Mass. 438.

We are not now required to consider whether the rule of law would not be the same independently of the legal fiction that the domicil of the wife follows that of the husband. The decision in Cummington v. Belchertown, 149 Mass. 223, was upon the effect of a decree annulling the marriage ab initia, and the court expressed no opinion upon the effect of a decree of divorce made under the circumstances there stated.

tJudgment on the verdict.