Leith v. Leith , 39 N.H. 20 ( 1859 )

Sawyer, J.

The libel in this case alleges that the parties were married in Massachusetts, on the 22d day of April, 1844, and that from that time until the 8th of April, 1855, they resided together as husband and wife, having their domicil from the 8th of April, 1846, until the time of filing the libel, in Winchester, in this county. The cause of divorce alleged is the adultery of the husband, and the prayer is for a decree of divorce and for alimony. The facts proved by the libelant in support of the alleged cause of divorce are not denied or attempted to be controverted; but the answer which is made to them by the libelee is, that his cohabitation with another woman than the libelant, clearly showing the adultery, unless the cohabitation is proved to be lawful by evidence of a legal marriage between the parties to it, was not adulterous, because the libelee had previously obtained a divorce from the libelant, by the decree of a coui't of competent jurisdiction in the State of Indiana, and had been married to the woman with whom he had so cohabited. The reply of the libelant to this is, that the Indiana court had no such jurisdiction of the cause and of the parties to it as to give validity to their proceedings ; that a fraud was practiced by the libelee upon that court, and upon the law in reference to his domicil upon which the jurisdiction depended, such as to render the proceedings, and the decree in which they resulted, void. This presents the only questions necessary to be considered in the case. Upon all other points the case of the libelant, as set forth in her libel, is fully maintained by the proof, and equally so by the testimony taken by the libelee as by that of the libelant. He admits the marriage of the parties, as alleged; their subsequent cohabitation until April, 1855 ; his desertion of the libelant at that time,, and his marriage in January, 1858, and subsequent cohabitation with another woman ; and he claims that these were lawful, because in October, 1857, he was, as he alleges, lawfully divorced from the libelant, and therefore free to contract the second marriage.

The parties at the time of their marriage, and subsequently until April, 1846, had their domicil in Massachusetts. On the 8th of that month they removed to Winchester, in this State, aud took up their residence there, where they continued to reside together until April, 1855, when he carried her to her sister’s, in Oonway, Mass., and engaged her board there for an indefinite time, and returned immediately to Winchester. She remained at her sister’s a few weeks, and then came back to Winchester. He declined to live with her, but paid for her board at the public hotel, and in different private families, until September, 1856, since which time he has in no way contributed to her support.

A very considerable amount of testimony has been taken by each of the parties, relative to their conduct and deportment to each other during their matrimonial life, which is unnecessary to be considered. Whether he deserted her without sufficient cause, or had sufficient grounds, in the violence of her conduct and displays of ungovernable temper, to constitute a legal answer to her application for divorce, on the ground of his desertion because of them, are matters immaterial to the question as to the validity of the Indiana divorce and the legality of the second marriage.

In reference to the domicil of the parties from April, 1846, down to' the time of filing the libel in this case, the evidence fully satisfies us that it was in Winchester ; that the visit of the libelee to Indiana, in June, 1857, was merely for the purpose of procuring the divorce, and that his intention was, after he had accomplished that purpose, to return to his domicil in this State, as he in fact did.

By the statute of Indiana regulating divorces, under which the proceedings were had, it is enacted that divorces may be decreed by the Circuit Court of the State, on petition filed by any bond fide resident of the county in which the same is filed, of which bond fide residence the affidavit of the party shall be •primd fade evidence. The statute then proceeds to declare what shall constitute a cause of divorce, and to prescribe the course of proceedings in obtaining the decree. Among the causes enumerated are several not recognized as such by our laws ; and the causes set forth by the libelee, in his petition, were of that character; and it appears from the allegations of the petition that they arose while the parties were, according to the statements of the petition, and in fact, domiciled in this State. When the acts were committed which constituted the alleged causes of divorce, they did not amount to a violation of the marriage contract of which the law could take cognizance in this jurisdiction, where they were committed, and where the parties wei’e domiciled; neither as a ground for divorce, nor as an infraction of the criminal law. In the exercise of our own jurisdiction, in cases of divorce, the rule is firmly established in this State, that divorces are not to be decreed for causes which arose before the parties were domiciled here. White v. White, 5 N. H. 466; Clark v. Clark, 8 N. H. 21; Fellows v. Fellows, 8 N. H. 160; Frary v. Frary, 10 N. H. 61; Smith v. Smith, 12 N. H. 80; Greenlaw v. Greenlaw, 12 N. H. 200; Kimball v. Kimball, 13 N. H. 225; Bachelder v. Bachelder, 14 N. H. 380; Payson v. Payson, 34 N. H. 518; Hopkins v. Hopkins, 35 N. H. 474. The same rule prevails in Pennsylvania. Dorsey v. Dorsey, 7 Watts 349; Hollister v. Hollister, 6 Barr 449; McDermott’s Appeal, 8 Watts & Serg. 251. In Massachusetts the same rule was recognized in their early decisions; Hopkins v. Hopkins, 3 Mass. 158; Carter v. Carter, 6 Mass. 268 ; though they would seem to have been to some extent merely cases of the construction of local statutes. Harteau v. Harteau, 14 Pick. 181. The rule is adopted in their Revised Statutes, ch. 76, sec, 11, and subsequent decisions in that State are rather adjudications under the statute than expositions of the law, on this point, upon general principles. Brett v. Brett, 5 Met. 233.

In most American courts, however, the doctrine is maintained that the actual bond fide domicil of the parties at the time the proceedings are instituted is the proper ground for assuming the jurisdiction, irrespective of the time and place of the delictum, and of the domicil when it occurred. Bishop on Mar. & Div., sec. 721 et seq., and authorities cited. Story’s Conf. of Laws, see. 230 (note a). The principle at the foundation of this doctrine in those jurisdictions where it prevails, is, in the language of Chief Justice Taney, in Strader v. Graham, 10 How. 82, that “ every State has an undoubted right to determine the status, or domestic and social condition of the persons domiciled within its territory.” In this view, questions of marriage and divorce are not so much questions of contract as of status or condition ; and according to the well settled principles of international law, that every nation has exclusive sovereignty and jurisdiction within its territory, and that no government can exercise a direct authority beyond the limits of its dominion, the status of every actual bona, fide resident, as married or single, must be determined according to the law of the domicil, without reference to the law of the place of the marriage, or of the place where the delictum occurred. Harding v. Alden, 9 Me. 140; Tolen v. Tolen, 2 Blackf. 407; Jackson v. Jackson, 1 Johns. 424; Pawling v. Bird, 13 Johns. 192; Barber v. Root, 10 Mass. 260; Pomeroy v. Wells, 8 Paige 406; Maguire v. Maguire, 7 Dana (Ky.) 181.

Conceding this to be the true rule upon the subject, and that each State may tl^refore rightfully declare the condition of its own citizens in reference to the marriage relation, and that, consequently, when a divorce is decreed according to the local law, in the forum of the parties’ domicil, it is to be regarded in all other jurisdictions as valid; still the rule applies only to the case of one actually and bond fide a resident animo manendi, and not to one temporarily there for a transient purpose, and still less to one who, in fraud of the law of his domicil, resorts thus temporarily to the foreign tribunal for the express purpose of evading the laws of his own jurisdiction, by procuring a divorce there for a cause which is not allowed in the domestic forum. Upon this point the authorities have great uniformity. Lane v. Lane, 2 Mass. 167; Squire v. Squire, 3 Mass. 184; Choate v. Choate 3 Mass. 391. In Barber v. Root, 10 Mass. 260, the parties were married, and had their domicil in Massachusetts, but subsequently removed to Yermont, and resided together there until divorced by a decree of the court of that State, for a cause of divorce not recognized as such in Massachusetts, and the question was, whether the divorce was to be held valid in the latter State. Sewall, J., in delivering the opinion of the court says, “the jurisdiction of the parties between whom the divorce was decreed must be considered as well established by their residence together in Yermont, in a manner that proves a permanent domicil there before the suit for a divorce was commenced, and which continued when the decree was obtained. The Yermont tribunals had, therefore, an exclusive jurisdiction. The lex loci by which the conduct of married persons is to be regulated, and their relative duties determined, and by which the relation itself is in certain cases to be annulled, must always be referred, not to the place where the contract was entered into, but where it subsists for the time ; where the parties have had their domicil, and have been protected in the rights resulting from the marriage contract, and especially where they are or have been answerable for any violation of the duties incumbent upon them in that relation.” “ The laws of Yermont,” he adds, “ which authorize the courts of that State to proceed in suits for divorce instituted in favor of persons resident for a time but having no settled domicil within the State, are not to be justified by any principles of comity which have been known to prevail in the intercourse of civilized States.”

In Hanover v. Turner, 14 Mass. 227, the question arose directly, whether a divorce obtained in Yermont, to which State the libelant had removed from Massachusetts, for the purpose of availing himself of the laws of the former State to obtain the divorce, was to be regarded as valid in the latter. Putnam, J., says, “ if the libelant had been absent for years in another State, or in a foreign country, for lawful purposes of business, animo revertendi, no question would arise of a change of domicil, a fortiori, when his temporary absence was for the purpose of evading the law's of this commonw'ealth.” “If,” he continues, “we were to give effect to this divorce we should permit another State to govern our own citizens, and this can be required by no rule of comity.” In the more recent case of Lyon v. Lyon, 2 Gray 367, the husband applied for a divorce in Massachusetts, on the ground of desertion by the wife. At the time of the desertion the parties were domiciled in that State, and the desertion by the wife was without cause. She subsequently went to Rhode-Island, and there procured a divorce for an alleged cause arising while the parties were domiciled in Massachusetts, the residence of the husband still continuing there — and the question was, whether the divorce so procured by the wife in Rhode-Island was a dissolution of the marriage, so as to bar the husband from a decree of divorce in Massachusetts for the desertion. It was held that the wife, having voluntarily abandoned the husband without justifiable cause, acquired no residence in Rhode-Island, her domicil still continuing with the husband in Massachusetts, and that the proceedings in granting her a divorce were in fraud of the law of the domicil, and therefore void. Although the case was held to be within the statute of Massachusetts which pronounces a divorce so procured invalid in that State, still, it is said, by the learned Chief Justice Shaw, that if not within the statute, the decree would be void upon general principles of justice and policy; partly on the ground that it was a proceeding in fraud of their law, and partly because the courts of Rhode-Island could have no jurisdiction of the cause and of the parties. In Harding & ux. v. Alden, 9 Me. 115, the principle of the Massachusetts cases was fully recognized. The parties to the divorce in that case resided together in Maine, until the husband deserted the wife, and took up his residence in North-Carolina. The wife, after the desertion of the husband, went to Rhode-Island, and there acquired a new domicil, the husband never having resided there. She obtained a divorce in that State on the ground of the adultery of the husband in North-Carolina, and the divorce was held valid in Maine, upon the ground that she, being a bond fide resident of the State in which the divorce was decreed, was within the jurisdiction of the courts of that State, and entitled, because of her domicil there, to be relieved from the claims of her husband upon her, arising from the conjugal relation which he had forfeited. In the able opinion delivered by Weston, J., he says, “ most of the reasons which led to the adoption of the rule that a marriage, valid by the law of the place where solemnized, is valid every where, require that divorces lawfully pronounced in one jurisdiction should be recognized as binding every where.” “ To these,” he adds, “ may be excepted cases of fraud and collusion, of which class are decrees obtained in fraud of the law of the domicil of the partiesand he refers to Hanover v. Turner, and Jackson v. Jackson, 1 Johns. 424, as cases decided upon the principle of this exception.

This case of Jackson v. Jackson was a divorce procured in Vermont by the wife, who left the State of New-York and went to Vermont for the purpose of obtaining the divorce. It was held that the wife acquired no such domicil in Vermont, by her temporary residence there for that purpose, as would give validity to the decree, and that the proceeding was to be regarded as a fraud upon the law of the domicil. In the case of Borden v. Fitch, 15 Johns. 121, the principle upon which Jackson v. Jackson was decided is recognized and affirmed.

The doctrine to be deduced from these cases clearly is, that where a divorce is granted on the application of one who is not a bond fide resident within the jurisdiction, having an actual permanent domicil animo manendi, but is resident there temporarily, for a transient purpose only, and a fortiori if the residence is taken for the pui’pose of availing himself of the laws of that jurisdiction, to obtain a divorce which would not be granted in the forum of his actual domicil, the decree of divorce is void. To give effect to a divorce thus obtained would be an infringement of the sovereignty of the State of the domicil over its own citizens, as it would recognize the right of a foreign jurisdiction to declare judicially the status and condition of a husband and wife in reference to the marriage relation, both of whom are domiciled here, and when neither, by becoming an actual resident there, had carried the relation into that jurisdiction. To maintain the doctrine of these cases it is unnecessary to deny to any State the right to decree the divorce of any actual bond fide resident for any cause and by any proceedings, recognized as lawful within its own territory, and as having application to its own citizens, irrespective of the questions where was the marriage solemnized; when and where did the cause of divorce arise; where has the domicil of the parties previously been, and where that of the party defendant then is ; and it is equally unnecessary to deny that when a divorce is thus granted, if lawful and valid in the place of the domicil of the party whose status and condition in reference to the marriage relation is the subject of the decree, is valid and binding here. This, however, is to be taken with the same qualification that attaches to the proposition that a marriage, valid by the law of the place where it is solemnized, is valid every where; namely, that the law of the marriage in the one case and of the divorce in the other, is not in violation of principles which are of universal obligation, and recognized by the yus gentium in all civilized communities; and that, consequently, if the law of the divorce should place the marriage substantially at the pleasure of the parties, a divorce declared under it would have no more validity here than would an incestuous or polygamous marriage, contracted in a community whose domestic policy might allow such a violation of natural and moral law.

It may be conceded that when a citizen of one State transfers his domicil to another, he places his status, as married or single, as he necessarily must every relation which is juris gentium and not merely the creation of municipal law, under the laws of his new domicil, while that continues. If, however, his mere transient visit to such other State, while his domicil remains unchanged, is to he regarded as bringing his status in regard to the marriage relation within the jurisdiction to which he thus temporarily resorts, conflicts of laws in the numerous jurisdictions of this country must be of constant recurrence, and questions, more embarrassing and distressing than those which at times have perplexed the courts of England and Scotland, arising from the conflict of their laws on the subject of divorce, must be of almost daily occurrence in the American courts. The universal recognition of the two principles, that each State may rightfully declare and adjudicate as to the marriage relation of ijs own bond fide citizens, and of no other; and that a divorce, lawfully decreed according to the law of the actual domicil, subject to the qualification above stated, is good iu all other jurisdictions, even that in which the other party to the marriage is domiciled, would go very far to remove all such conflict. The former of these two principles is declared by Story, in his Conflict of Laws, sec. 230 (note a), to be firmly established as the doctrine of American courts. Bishop, in his treatise on Marriage and Divorce (sec. 720), also says its authority is now fully acknowledged in this country.

In reference to the latter principle, it is said in the same treatise (sec. 731), the granting of a divorce to the husband or wife, in the State of his or her actual domicil, while the other party is domiciled in another State, is no interference with the rights of that State, or of its apparently divorced subject. The decree would not be directly binding upon the person of such subject, except in case of appearance and answer to the suit, or at least of a notice personally served within the jurisdiction of the court rendering it. The husband, in case of such divorce by the procurement of the wife, would not be bound by any collateral clause in it, as that he should pay alimony, and he would only cease to be a husband because he had ceased to have a wife. To the same extent he would be affected by her death. The government of the country of his domicil could not complain ; its laws and domestic policy would not be interfered with ; it might still prohibit him, if it chose, from contracting another marriage, in the same manner as if the former had not been dissolved.

Nor is the doctrine that a divorce, granted in another State, where the party applying is domiciled, may be held valid here, although the domicil of the other party has continued to be in this State, and the cause of divorce arose while the parties had their domicil together here, at all in conflict with the decisions here, that divorces are not to be granted for causes accruing prior to the time when the party applying became a permanent resident in this State. Each State is at liberty to adopt such policy in reference to the divorce of its own citizens as they may deem most conducive to social and public morals, and the best interests of the State, and this policy may be declared by statutory provisions, or by the adjudications of their courts, when not controlled by statute, upon such principles of law as they may deem most consonant to sound reason and to their general domestic polity. When, therefore, the courts of this State decline to take jurisdiction of an alleged cause of divorce which accrued while the parties were domiciled elsewhere, they in effect declare that the principles of law, as here recognized, and sound public policy, as here estimated, forbid such divorces of our own citizens. But when one of our citizens removes to Indiana, and acquires a permanent domicil there, he carries with him, and places under the jurisdiction of their laws, the marriage relation which he sustained at the time of the change of domicil, subject to all the defects and infirmities which their laws may attach to it; and if by their laws acts such as are charged to the wife in the husband’s libel, in this case, committed by her in this State, while the parties were domiciled here, may so impair the marriage relation, according to their policy, that the husband, now a citizen of that State, ought not to be held to its duties, it is but the exercise of their sovereignty over their own citizens to release him from the marriage tie, however unwise it may be, according to our notions of public policy thus to exercise it.

Upon every view which can be taken of the case, the divorce in Indiana might be sustained in the courts of this State if the fact appeared that the husband, at the time of the application, and of the proceedings which resulted in the decree, was a bond fide resident of that State. The meaning of the expression, bond fide resident, as used in the Indiana statute, cannot be matter of doubt. It must be understood as equivalent to inhabitant; one dwelling and having his fixed and permanent home within the State.

It is objected, however, that the question of the actual residence of the libelee at the time of the proceedings in the Indiana court, is not open to the inquiry of this court, because, by the provision of the constitution of the United States, full faith and credit are to be given in each State to the public acts, records and judicial proceedings of every other State; and Congress may, by general laws, prescribe the manner in which they shall be proved, and the effect thereof; and by the act of Congress of May 26, 1790 (1 Stats, at Large 122), in pursuance of this provision it is declared that they shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they come.

The doctrine of the cases, Mills v. Duryee, 7 Cranch 481, and Hampton v. McConnell, 8 Wheat. 234, cited on this point by the counsel for the libelee, that a judgment which is conclusive as record evidence in the courts of the State where it was rendered, is to have the same faith and credit, and therefore to be held conclusive in every other court, is to be taken subject to the qualification that in all instances the jurisdiction of the court rendering the judgment may be inquired into. It is only when the jurisdiction is not impeached, either as to the subject matter or the person, that it is entitled to this credit. This has always been the doctrine of the State courts, including, as I undei'stand it, those of Indiana herself; Bissell v. Briggs, 9 Mass. 462; Hall v. Williams, 6 Pick. 232; Aldrich v. Kinney, 4 Conn. 380; Kilburn v. Woodworth, 5 Johns. 37; Pawling v. Bird, 13 Johns. 192; Starbuck v. Murray, 5 Wend. 148; Shumway v. Stillman, 6 Wend. 447; Hoxie v. Wright, 2 Vt. 263; Benton v. Burgot, 10 Serg. & Rawle 240; Rogers v. Colman, Hardin (Ky.) 413; Eastman v. Jones, 2 Yerg. 484; Miller v. Miller, 1 Bailey 242 ; Holt v. Alloway, 2 Blackf. 108; and is now the settled doctrine of the Supreme Court of the United States. McElmoyle v. Cohen, 13 Pet. 323. In the case last cited it was held that a judgment in one State has the force of a domestic judgment in another, under the constitution of the United States, only so far as to preclude all inquiry into the merits of the subject matter of the judgment. Wayne, J., in delivering the opinion, says the decisions in Mills v. Duryee and Hampton v. McConnell were not intended to exclude inquiry into the jurisdiction of the court in which the judgment was given, to pronounce it as the right of the State itself to exercise authority over the person or the subject matter. If, then, the proceedings in the Indiana court were to be regarded in this respect as a civil suit between two parties, in which their rights and liabilities as to each other were involved, it is clear that the judgment pronounced in it would have no effect beyond the limits of the State in which it was rendered, because the party against whom it was rendered was never subject to the jurisdiction of that State, did not appear and answer to the suit, and had no notice of its pendency served upon her. This is not a suit of that character, but rather one in the nature of a proceeding in rem, the object and effect of which are to define the status of the complainant in that proceeding as a citizen of Indiana, in reference to his marriage relation with the present libelant. The case of Harding & ux. v. Allen, in Maine, proceeds upon this view, and the decision in that case is referred to in 2 Kent’s Com. 110 (note a), as an important and valuable decision. In this view the subject matter of the Indiana suit was the obligation of the complainant to support the present libelant as his wife, and to discharge toward her the duties of a husband; and of this the court in Indiana had no jurisdiction, unless he was at the time one of the citizens of that State.

It is not at all clear that this objection does not admit of another answer, namely, that under the peculiar provisions of the Indiana statute the question as to the validity of a divoi’ce granted under it is open in her own courts, in any subsequent proceedings in which the divorce may be alleged. The statute authorizes a divorce in terms only ip case of an application by a bond fide resident, but it empowers the court to proceed and decree the divorce upon proof by the affidavit of the pai’ty of his bond fide residence; that is, in effect it declares that the divorce may be decreed in cases where the other party does not appear, if the applicant will file his affidavit that he is a bond fide resident, whether he is so in fact or not. The record of the proceedings in this case shows that the affidavit was filed, but it does not show that there was any other evidence of residence, or that there was any inquiry or adjudication by the court as to the question of bond fide residence in fact. There is nothing in the decree, the record of the proceedings, or the nature of them, from which it can be understood that this was at all the subject of consideration by the court. From the character of the enactment it would seem that in order to carry out its policy, the court would be bound to make no inquiry into the fact of residence, and to hold that the fact of the affidavit filed was sufficient in all cases, until disproved by the adverse party. The statute authorizes them, upon the filing of the affidavit, whether true or false, to waive all inquiry into the matter of bond fide residence, unless counter evidence is presented by the adverse party; and by declaring it competent for them to decree the divorce upon this primd facie evidence, though false, impliedly enacts that in a case where the other party does not answer to the suit, the divorce thus granted is to be taken by the party upon whose false affidavit as to his residence it is granted, at the peril of an after inquiry into the truth of his statement. The conclusive character of a judgment rests upon the fact of an investigation and inquiry into the merits of the subject matter by a court of competent jurisdiction, or upon a concession of the merits by the party having adverse interests, who has opportunity to be heard, and whose concession is equivalent to an examination upon full proofs. Upon this point of residence the record in this case has none of the characteristics of a judgment. It would be a judicial farce to hold it conclusive upon this point in the court from which it comes. It is difficult to see how, upon any sound principles, even there, it can be held to be any thing more than a proceeding preliminary to the question of the validity of the divorce, to be tried in some after suit, like an indictment for bigamy, an action for necessaries supplied to the wife; or, as in this instance, a libel for divorce by the party who has been outraged by a decree thus obtained.

If, however, the judiciary of that State should adopt a laxity of principles upon the subject of divorce in their judicial proceedings corresponding to that of their legislature in the enactment, and hold the decree to be conclusive in their own courts as to the residence, still, upon the other ground, no doubt can be entertained that the question, whether the complainant in the proceeding had a bond fide residence there, is open in our courts. The proofs are clear that lie acquired- no domicil in Indiana, but bis residence was then, and is now, in this State, and consequently tbe divorce in Indiana must be held to be a nullity.

Divorce decreed, and alimony to the amount of $750 allowed, to the libelant.