Commonwealth Ex Rel. v. Esenwein

The Chief Justice and I thoroughly disagree with the opinion and decision of the majority, because, in our best judgment, the record in this case is absolutely void of anything better than conjecture and suspicion to support the finding that appellant lacked a bona fide domicil in the State of Nevada at the time he instituted his action for divorce and obtained a decree there. If the judgment of a sovereign state can be lightly set aside, as appears to have been done here, then the full faith and credit clause of the National Constitution and the decision of the Supreme Court of the United States, inWilliams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, are no protection. It seems to me that the majority completely ignores the fact that merely because its views as to the marriage relationship and the avenues of escape may differ from those of other states, or because there may be a hostile feeling toward decrees in divorce by many courts and among laymen, where the period of residence is comparatively brief, is no legal justification for circumventing the Federal Constitution.

There is no doubt in my mind that a decree in divorce of one state can be collaterally attacked on the ground of want of good faith of domicil in another. While as a general rule a judgment or decree may not be impeached collaterally, a different rule exists if the attack is based upon fraud or want of jurisdiction: German Savings and Loan Society v. Dormitzer,192 U.S. 125, 24 S.Ct. 221; Hunt v. Hunt, 72 N.Y. 217; 34 C. J. § 815, p. 511. Jurisdiction of the court by which a judgment or decree is rendered in any state may be attacked collaterally in another state: Thompson v. Whitman, 85 U.S. 457; Andrewsv. Andrews, 188 U.S. 14, 23 S.Ct. 237. A bona fide domicil being a jurisdictional fact, its existence is subject to challenge before the courts of other states, regardless of any recital or finding of "domicil" expressed or implied in the record: Freeman on Judgments, 5th ed., Vol. 3, § 1437, p. 2959; Black on Judgments, 2d ed., Vol. 2, § 931, p. 1375. It is proper to inquire into the jurisdiction of the court granting a decree in divorce and if it appear that neither party had acquired a bona fide domicil in that state at the time the proceedings were instituted, the decree is open to collateral challenge: Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551;Streitwolf v. Streitwolf, 181 U.S. 179, 21 S.Ct. 553; Beale on Conflict of Laws, Vol. 1, § 111.2, p. 478; Wharton on Conflict of Laws, 3d ed., Vol. 1, § 223, pp. 463-4; and, in my opinion, there is nothing in Williams v. North Carolina, supra, which in any way should lead one to believe that the court there intended to overrule this previously enunciated principle.

When the foregoing legal principles are applied to the facts of the instant case, it at once clearly appears that unless there was a bona fide domicil acquired by appellant in Nevada when he brought his action for divorce there, his decree was subject to impeachment in this Commonwealth, since admittedly appellee was neither personally served nor entered an appearance in the Nevada proceeding. However, from a most careful study of the entire record here, I am satisfied that there is nothing which could possibly justify the majority of this Court in finding that appellant lacked a bona fide domicil in Nevada.

At the hearing in the County Court, no witnesses were called by either side. Counsel for appellant offered in evidence certain undenied allegations of the petition; an exemplification of the record of the Nevada proceeding, wherein there was a specific finding that appellant was domiciled in that state when he instituted his action there, and competent testimony to support such finding; and requested the court to take judicial notice of various decisions and laws of the State of Nevada; and then rested. Since a foreign decree, regular on its face, is entitled to a presumption of validity (Delanoy v. Delanoy,216 Cal. 27, 13 P.2d 719; Corkum v. Clark, 263 Mass. 378,161 N.E. 912), the burden was then shifted to appellee to show by a preponderance of the evidence that appellant was not in fact so domiciled (Com. ex rel. Cronhardt v. Cronhardt, 127 Pa. Super. 501, 193 A. 484). As to where the burden of proof rests under such circumstances, it was said in Cheever v.Wilson, 76 U.S. 108: "It is said the petitioner went to Indiana to procure the divorce, and that she never resided there. The only question is as to the reality of her new residence and of the change of domicil. That she did reside in the county where the petition was filed is expressly found by the decree . . . The finding is clearly sufficient until overcome by adverse testimony."

Counsel for appellee, relying primarily upon the untenable defense that the previous decisions of our Pennsylvania courts in refusing to grant appellant's applications for divorce were res judicata of his suit instituted in Neveda, merely offered the following excerpts from appellant's testimony as contained in the Nevada record already in evidence (all of which fully supported the Nevada court's finding of bona fide domicil, rather than challenged it): "Q. Where do you live, Mr. Esenwein? A. Las Vegas. Q. When did you first become a resident of Las Vegas, Clark County, Nevada? A. June 23, 1941. Q. Were you present in the City of Las Vegas, Clark County, Nevada, every day from and including June 23, 1941, to and including August 5, 1941? A. Yes, sir. Q. And you have been here continuously since August 5th? A. Yes, sir. Q. When you came to Nevada you came with the intention of making Clark County, Nevada, your permanent place of residence? A. Yes, sir. Q. Have you retained that intention ever since? A. Yes, sir. Q. And you have it now? A. Yes, sir." In addition to requesting the court to take judicial notice of certain decisions of the State of Nevada, counsel for appellee read into the record the following statements made by appellant in a deposition taken on November 19, 1942, in Cleveland, Ohio, and which was filed by appellant in this proceeding: "Q. Where do you live, Mr. Esenwein? A. 2635 North Moreland Boulevard, Cleveland, Ohio. Q. Mr. Esenwein, how long have you lived at 2635 North Moreland? A. Since some time in October, 1941. Q. And prior to that time you were a resident of Las Vegas, Nevada? A. Yes, sir."

To acquire a domicil, a party must have his abode in one place, with intention of remaining there; and the elements of domicil are residence and animus manendi: Di Brigida v. DiBrigida, 116 N.J. Eq. 208, 172 A. 505. In the instant case, it is not denied that appellant took up a residence in the State of Nevada at the time he brought his action there and retained it until a short time after he obtained his decree. Giving the evidence adduced by appellee the fullest effect possible, at best it raises but a mere suspicion that the animus manendi may have been wanting. Conjecture and suspicion are not enough to rebut the presumption of the validity of a decree of a sister state: Cheever v. Wilson, supra. Certainly, such evidence is not the clear and convincing proof which is required. See 21 C.J.S. § 100, p. 155.

It is obvious that because appellant on November 19, 1942, in Cleveland, Ohio, stated that he had lived in that city since some time in October, 1941, does not in any way detract from the truthfulness of his testimony given in the Nevada proceeding on September 8, 1941, that he went to that state on June 23, 1941, with the intent of making it his permanent domicil and that he still retained that intention at that time. The record shows that appellant sold his business in the City of Pittsburgh, abandoned his domicil in Pennsylvania and took up one in Nevada, which he later changed to Ohio, and there has resided now for more than two years. This he had a perfect right to do. The mere fact that he procured a divorce in Nevada does not rebut the presumption of the good faith on his part in the acquisition of a domicil there. "The motive with which a change of residence is made is immaterial so long as there is a real intention to make the new residence a home": Beale, Conflict of Laws, Vol. 1, § 22.1, p. 161. Whether appellant's residence in Nevada was long or short is of no moment, since the finding of the court that he had an intention to make that state his domicil during his residence there has not been rebutted. See Price v. Price,156 Pa. 617, 27 A. 291.

Appellant did not give up his domicil in this Commonwealth to evade the order of support here under consideration, for he continued to comply with it for the more than two years he had been a non-resident, and only applied for revocation of the order after the rendition of the decision by the United States Supreme Court, in Williams v. North Carolina, supra.

The Court of Appeals of New York, in its recent decision inIn the Matter of the Estate of Anna Holmes, Deceased, 291 N.Y. 261, on facts quite analogous to those of the instant case, upheld the validity of a Nevada decree in divorce which was there being challenged. From the agreed state of facts there before the court, it appears that respondent-husband left New York State and went to Nevada in June, 1937, and there commenced an action for divorce against his wife, who was a domiciliary of New York, on the ground of extreme cruelty; that the wife did not appear by attorney or in person and was not served personally with a summons, but merely by publication; that respondent obtained a decree in Nevada on September 18, 1937, and on the same day remarried; that in December, 1937, after respondent and his second wife had moved to New York State, the first wife commenced an action against respondent for a divorce on the ground of adulterous conduct with the second wife; that respondent filed an answer averring that he had already obtained a decree in Nevada; that the referee, to whom the case was referred in New York, found that respondent and his first wife had been residents of New York from the date of their marriage to the time of trial; that because of the adultery of respondent, the first wife was entitled to a decree; that a judgment in her favor became final in September, 1939, and no appeal therefrom was ever taken; that the second wife continued to reside in New York State until her death in January, 1942; that thereafter one Frances M. Lawson applied to the Surrogate's Court for letters of administration upon the estate of the second wife and the respondent-husband filed an answer alleging in substance that he was the husband of the deceased and entitled to letters. On the issue as to whom letters should be granted, the Surrogate held that respondent was not the legal husband of decedent at the time of her death and, therefore, denied his petition, and the Appellate Division reversed and held that the Nevada decree must be recognized in New York State. In upholding the action of the Appellate Division, the Court of Appeals, speaking through Chief Judge LEHMAN, said: "In the case we are now reviewing, the appellant [Frances M. Lawson] has not, in the agreed statement of facts, or by presentation or offer of evidence, except the decision of the referee in the divorce action, challenged the decision of the Nevada court that the plaintiff had acquired a domicile in Nevada sufficient to support the jurisdiction of that court to adjudicate his marital status. Though the appellant has consistently contended that the courts of this State may refuse to give full faith and credit to the Nevada decree he bases that contention primarily, if not exclusively, upon the decision of the Supreme Court of this State in the divorce action instituted here that the Nevada decree was invalid. Since that decision is, as we have said, not binding upon the respondent and since there is no other affirmative proof that the respondent was not domiciled in Nevada when he brought an action for divorce there, we must apply the rule long authoritatively established by the Supreme Court of the United States: 'There can be no doubt that if full faith and credit were denied to a judgment rendered in another State upon a suggestion of want of jurisdiction, without evidence to warrant the finding, this court would enforce the constitutional requirement. See German Savings and LoanSociety v. Dormitzer, ante, page 125.' (Rogers v. Alabama,192 U.S. 226 at p. 231, opinion by HOLMES, J.) We have found no case in which this court has heretofore attempted to define the scope of the rule that a judgment of a sister state granting the plaintiff a divorce from a spouse not domiciled in that state nor appearing in the action nor personally served with process there imports that the court had acquired jurisdiction to render a valid judgment in rem changing the status of the plaintiff. In many decisions the court has, however, assumed the existence of a presumption, in the absence of evidence to the contrary, that the court had jurisdiction to render judgment, though, doubtless, the validity of the judgment may be impeached by extrinsic evidence. (See Kerr v. Kerr, 41 N.Y. 272,275; Cross v. Cross, 108 N.Y. 628, 630; Matter ofKimball, 155 N.Y. 62, 68.) Instinct in these and other decisions of this court is the rule that the foreign judgment of divorce will be given full force and effect as a judgment inrem dissolving the marriage of the plaintiff until impeached by evidence which establishes that the court had no jurisdiction over the res. That rule is in accord with the great weight of judicial authority in this country. (See Aarnes v. Aarnes,172 La. 648; Howey v. Howey, 240 S.W. 450, [Mo.] cert. denied,260 U.S. 730; Harrington v. Harrington, 233 Mo. App. 390;Commonwealth ex rel. Cronhardt v. Cronhardt, 127 Pa. Super. 501, on rehearing, 135 Pa. Super. 117; Goodloe v. Hawk,113 F.2d 753, 755, 756, App. D.C.; Dry v. Rice, 147 Va. 331, 338;McFarland v. McFarland, 179 Va. 418, 428.) A different rule has been applied in Massachusetts and perhaps some other jurisdictions, to foreign decrees of divorce. See Commonwealthv. Blood (97 Mass. 538); Kelley v. Kelley (161 Mass. 111); but cf. Peaslee v. Peaslee (147 Mass. 171, 180); Corkum v.Clark (263 Mass. 378, 382); but academic authority as well as the weight of judicial authority is opposed to the exclusion of foreign judgments of divorce from the benefit of the presumption of validity generally accorded to judgments of courts of general jurisdiction (3 Freeman on Judgments, § 1426; 2 Black on Judgments, § 924; 2 Bishop, New Commentaries on Marriage, Divorce and Separation, § 1526). The courts of this State have not refused to apply to judgments of divorce that general presumption."

So, in the instant case, appellee has failed to adduce any affirmative proof that appellant was not domiciled in the State of Nevada at the time he instituted his action there, and therefore this Court is bound to give full faith and credit to the Nevada decree. I would reverse the judgment of the Superior Court and revoke the order of support of the County Court of Allegheny County of December 8, 1942.

Mr. Chief Justice MAXEY joins in this dissent.