# Haddock v. Haddock/Dissent Billings Brown

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Billings Brown Wendell Holmes, Jr.
United States Supreme Court
201 U.S. 562
Haddock v. Haddock
Argued: December 11, 1905. --- Decided: April 16, 1906
Mr. Justice Brown, with whom were Mr. Justice Harlan, Mr. Justice Brewer, and Mr. Justice Holmes, dissenting:
Marriage between these parties was solemnized June 4, 1868. They separated the same day, without a consummation, and have never lived together since. No martrimonial domicil was ever established in New York or elsewhere. Defendant left New York soon after the wedding, drifted about the country for several years, and finally settled in Connecticut in 1877; remained there twelve years, during which time, and in 1881, he obtained a divorce in the superior court of Litchfield county, which he now sets up in defense of this action.
Plaintiff took no steps for twenty-six years to obtain legal separation or maintenance, when, in July, 1894, she applied to the superior court of the state of New York for a summons by publication. The defendant did not appear, and a decree was rendered against him by default, separating the parties and granting alimony of $1,500 a year. This decree appears to have been abortive, so far as respects alimony, at least, probably for lack of personal service on the defendant. Meantime, and in 1891, defendant had inherited a considerable property from his father.
This action was begun by a summons dated June 3, 1899, thirty-one years after the marriage; was served upon the defendant, who answered December 18, 1899, setting up, amongst other things, the decree of the superior court of Litchfield county, dissolving the marriage, the validity of which presents the only Federal question in this case.
1. This decree is attacked upon the ground that the Connecticut court acted without jurisdiction of the parties lawfully obtained. The record in that case shows that notice of the pendency of the petition was ordered to be published in a Litchfield paper, and also that a copy of the petition be sent to the respondent by mail, postage paid, at Tarrytown, New York. While there is no affidavit of the publication of the notice, there is a recital in the decree 'that said complaint and writ have been duly served upon the defendant pursuant to an order of notice made thereon by the clerk of this court.' This is sufficient prima facie evidence of the publication to entitle the record to be received. Applegate v. Lexington & C. County Min. Co. 117 U.S. 255, 268, 29 L. ed. 892, 896, 6 Sup. Ct. Rep. 742, wherein it was said by the court that 'while it must be conceded that, in order to give the court jurisdiction over the persons of the defendants, all the steps pointed out by the statute to effect constructive service on nonresidents were necessary, yet it does not follow that the evidence that the steps were taken must appear in the record, unless, indeed, the statute, expressly or by implication, requires it. . . . Therefore every presumption not inconsistent with the record is to be indulged in, in favor of its jurisdiction. . . . It is to be presumed that the court, before making its decree, took care to see that its order for constructive service, on which its right to make the decree sepended, had been obeyed.'
As the record was rejected for reasons appearing only upon its face, it is unnecessary to decide where the recitals in the decree can be contradicted. Possibly the New York court might have assailed its validity by showing that, notwithstanding the recitals in the record, the court acquired no jurisdiction of the defendant by failure to comply with the order of the court with reference to the publication of notice in a newspaper, or in sending a copy of the petition and complaint to the defendant by mail at Tarrytown, New York, the last known place of residence. The fact that the referee refused to admit the record, even as prima facie evidence, foreclosed any defense founded upon the actual failure to obtain jurisdiction over the defendant.
There is no doubt of the proposition that a decree of divorce may be lawfully obtained at the matrimonial domicil, notwithstanding that the defendant may have taken up his or her residence separate from the other party in another state, providing that the law of the domicil with respect to the personal service or publication be scrupulously observed. Atherton v. Atherton, 181 U.S. 155, 45 L. ed. 794, 21 Sup. Ct. Rep. 544.
Doubtless the jurisdiction of the court granting the divorce may be inquired into, and if it appear that the plaintiff had not acquired a bona fide domicil in that state at the time of instituting proceedings, the decree is open to a collateral attack (Bell v. Bell, 181 U.S. 175, 45 L. ed. 804, 21 Sup. Ct. Rep. 551), and a recital in the proceedings of a fact necessary to show jurisdiction may be contradicted (Thompson v. Whitman, 18 Wall. 457, 21 L. ed. 897; Streitwolf v. Streitwolf, 181 U.S. 179, 45 L. ed. 807, 21 Sup. Ct. Rep. 550; Andrews v. Andrews, 188 U.S. 14, 47 L. ed 366, 23 Sup. Ct. Rep. 237).
Subject to these conditions, each state has the right to regulate the marital status of its citizens, at least so far as to determine in what manner and by whom marriages may be solemnized, what shall be deemed the age of consent, what obligations are assumed, what property rights are created, for what causes divorces shall be granted, for what length of time the domicil of plaintiff shall have been acquired prior to the institution of the proceedings, and in what manner notice shall be given to the defendant. Nor is the power of the legislature in this connection ousted by the fact that the other party to the contract resides in another state, provided that in case of proceedings adverse to such party he or she shall be given such notice as due process of law requires. If such proceedings be in rem or quasi in rem, notice by publication is ordinarily deemed sufficient. But in case of actions in per- sonam jurisdiction is vital to the proceedings. Pennoyer v. Neff, 95 U.S. 714, 24 L. ed. 565; Huling v. Kaw Valley R.& Improv Co. 130 U.S. 559, 32 L. ed. 1045, 9 Sup. Ct. Rep. 603.
By the laws of Connecticut of 1878 (chap. 71, p. 305) exclusive jurisdiction is given to the superior courts to grant divorces for several causes, among which are 'wilful desertion for three years with total neglect of duty,' with a further provision (Rev. Stat. § 4555) that plaintiff shall have continuously resided in the state three years next before the date of the complaint, with certain exceptions not material to be noticed. A further provision, § 4553, that, 'where the adverse party resides out of, or is absent from, the state, or the whereabouts of the adverse party is unknown to the plaintiff, any judge or clerk of the supreme court of errors, or of the superior court, or any county commissioner, may make such order of notice as he may deem reasonable, and such notice having been given and duly proved to the court, it may hear such complaint; if it finds that the defendant has actually received notice that the complaint is pending, and if it shall not appear that the defendant has had such notice, the court may hear such case, or, if it see cause, order such further notice to be given as it may deem reasonable, and continue the complaint until the order is complied with.'
The complaint alleged a wilful desertion of the plaintiff for more than three years, and the court found this to be the fact.
2. The case turns upon the question whether the superior court of Litchfield county gained jurisdiction by a residence of the plaintiff within the state for more than three years. The testimony also showed that the defendant had acquired a separate domicil in New York, and had been living there for about thirteen years.
In discussing this question two propositions may be admitted at once, and discarded as having no relevancy to the case:
1. That a judgment for damages in an action in personam is valid only when personal service has been made upon the defendant within the jurisdiction of the court rendering the judgment. This disposes at once of the cases of Pennoyer v. Neff, supra; and of Mississippi & M. R. Co. v. Ward, 2 Black, 485, 17 L. ed. 311, where an Iowa court had undertaken to abate a nuisance on the Illinois side of the Mississippi river; and of Delaware, L. & W. R. Co. v. Pennsylvania, 198 U.S. 342, 49 L. ed. 1077, 25 Sup. Ct. Rep. 669, where a state had attempted to tax property having a permanent situs in another state.
2. 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. The same rule applies if he has removed thither solely for the purpose of acquiring a domicil and obtaining a divorce for a cause which would have been insufficient in the state from which he removed. Andrews v. Andrews, 188 U.S. 14, 47 L. ed. 366, 23 Sup. Ct. Rep. 237.
The jurisdiction of the Connecticut court in this case is shown not by the facts as they appear in this case, but from the record in that case, and primarily from the petition, which, under the practice in that state, is incorporated with the summons. The allegations are:
'On the first day of January, 1869, the defendant wilfully deserted the plaintiff, and has continued said desertion, with total neglect of all the duties of the marriage on her part to be performed to the date of this writ, being for more than three years, and during the plaintiff's residence in this state.'
It is conceded that such desertion is good ground for a divorce in Connecticut, which may be granted to a plaintiff who has continuously resided in the state three years next before the date of the complaint. The complaint obviously made a case for divorce under the statute. The court found that the complaint and writ had been duly served on the defendant, pursuant to an order of notice made thereon by the clerk; that the allegations of the complaint had been sustained, and a divorce was granted.
The case then resolves itself into the single question whether a divorce granted to a plaintiff lawfully domiciled within a state as against a defendant domiciled in another state, who has been served by publication or letter only, is a valid defense to a suit by the latter for a separation and alimony.
Certain cases in this court tend strongly to support the proceedings in Connecticut. Strader v. Graham, 10 How. 82, 13 L. ed. 337, was an action to recover the value of certain slaves carried into Ohio, a free state. The case was dismissed, as involving a question of the local law of Kentucky, the court remarking: 'Every state has an undoubted right to determine the status, or domestic and social condition, of the persons domiciled within its territory, . . . and . . . it was exclusively in the power of Kentucky [wherein the suit was brought] to determine for itself whether their employment in another state should or should not make them free on their return.'
In Barber v. Barber, 21 How. 582, 16 L. ed. 226, a New York court decreed a separation and alimony to the wife. The husband removed to Wisconsin for the purpose of placing himself beyond the jurisdiction of the court which could enforce it, and there obtained a divorce a vinculo upon the ground of abandonment. The sole question raised by the record was: 'Whether a wife divorced a mensa et thoro can acquire another domiciliation in a state of this Union different from that of her husband, to entitle her, by her next friend, to sue him in a court of the United States, having equity jurisdiction, to recover from him alimony due, and which he refuses to make arrangements to pay; and whether a court of equity is not a proper tribunal for a remedy in such a case.'
It was a suit to recover upon a judgment obtained in New York before proceedings instituted in Wisconsin, and was sustained. Obviously, the Wisconsin divorce was no defense, but its validity was not impugned.
Cheever v. Wilson, 9 Wall. 109, 19 L. ed. 604, turned upon certain rights of property, and incidentally upon a divorce obtained in Indiana, in a suit in which the defendant appeared. The case, however, is valuable for two questions decided: First, that a decree of divorce, valid and effectual by the laws of the state in which it was obtained, is valid and effectual in all other states; second, that a wife may acquire a domicil different from her husband's whenever it is necessary or proper that she should have such a domicil; and on such a domicil, if the case otherwise allow it, may institute proceedings for divorce, though it be neither her husband's domicil nor have been the domicil of the parties at the time of the marriage, or of the offense.
Of course, it follows that if the wife may obtain a new domicil, her husband may do likewise, as was done in this case, after the separation or abandonment had taken place. In delivering the opinion, Mr. Justice Swayne observed: 'The decree [of divorce] was valid and effectual according to the law and adjudications in Indiana.'
The Constitution and laws of the United States give the decree the same effect elsewhere which it had in Indiana. "If a judgment is conclusive in the state where it is rendered, it is equally conclusive everywhere,' in the courts of the United States.'
In Cheely v. Clayton, 110 U.S. 701, 28 L. ed. 298, 4 Sup. Ct. Rep. 328, a divorce obtained in a territorial court, upon notice by publication insufficient under the laws of the territory, was held to be of no effect. The court, however, observing: 'If a wife is living apart from her husband without sufficient cause, his domicil is in law her domicil; and in the absence of any proof of fraud or misconduct on his part, a divorce obtained by him in the state of his domicil, after reasonable notice to her, either by personal service or by publication, in accordance with its laws, is valid, although she never in fact resided in that state,' citing Burlen v. Shannon, 115 Mass. 439, and Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129.
In Maynard v. Hill, 125 U.S. 190, 31 L. ed. 654, 8 Sup. Ct. Rep. 723, a legislative divorce was upheld, and it was said that the fact that no cause existed for the divorce, and that it was obtained without the knowledge of the wife, cannot affect the validity of the act. It was further said that though the conduct of the husband merited the strongest reprobation, his abandonment of his wife, his loose morals, and shameless conduct could have no bearing upon the power of the assembly to pass the act.
Four recent decisions in this court are too important to pass unnoticed. In Bell v. Bell, 181 U.S. 175, 45 L. ed. 804, 21 Sup. Ct. Rep. 551, and in Streitwolf v. Streitwolf, 181 U.S. 179, 45 L. ed. 807, 21 Sup. Ct. Rep. 550, it was held that a divorce obtained in a state in which neither party was domiciled, upon service by publication, and in another state, was entitled to no faith and credit. These decisions were unanimous. And in Andrews v. Andrews, supra, that a divorce obtained by one who had gone into another state to procure a divorce, in fraud of the law of the domicil, was also invalid.
There remains the case of Atherton v. Atherton, 181 U.S. 155, 45 L. ed. 794, 21 Sup. Ct. Rep. 544, a divorce obtained by a husband in Kentucky, which had been the matrimonial domicil, though the wife had been absent from the state for several months, and apparently had attempted to acquire a new domicil in New York. The court took care to confine the case to the one point decided, namely, the validity of a divorce obtained at the matrimonial domicil. The court, out of abundant caution, expressly disclaimed that the case involved the validity of a divorce granted, on constructive service, by the court of a state in which only one of the parties ever had a domicil; nor the question to what extent the good faith of the domicil may be afterwards inquired into. 'In this case, the divorce in Kentucky was by the court of the state which had always been the undoubted domicil of the husband, and which was the only matrimonial domicil of the husband and wife. The single question to be decided is the validity of that divorce, granted after such notice had been given as was required by the statutes of Kentucky.'
While the Atherton Case, as already stated, was confined to a divorce obtained at the matrimonial domicil, the cases cited by Mr. Justice Gray in his opinion relate to divorces obtained in a state which was the domicil only of the complaining party, and are practically the same as those cited by him in his opinion as chief justice of Massachusetts in Burlen v. Shannon, 115 Mass. 438. In reading the two cases together one is strongly impressed with the idea that in the Atherton Case he had the former case in mind, and gave it such approval as the facts in the latter case would warrant. Not only had the court of appeals of Kentucky decided that a wife residing in that state was entitled to obtain a decree of divorce against her husband who had left the state (Rhyms v. Rhyms, 7 Bush, 316; Perzel v. Perzel, 91 Ky. 634, 15 S. W. 658), but a number of cases from other states were cited holding to the same principle.
The opinion of the court in the present case admits that where the domicil of the husband is also the domicil of matrimony, the courts of that domicil may disregard an unjustifiable absence of the wife therefrom, and treat her as having her domicil there for the purpose of dissolving the marriage as to both parties, and that such dissolution would be recognized in all other states by virtue of the full faith and credit clause, citing to this effect Atherton v. Atherton, supra, and, as a corollary therefrom, it is admitted that no question can arise concerning the right of the state of Connecticut to give effect to a decree of divorce rendered in favor of the husband while domiciled in that state. The question is, undoubtedly, as stated, whether the Connecticut court, in virtue of the domicil of the husband in that state, had jurisdiction to render a decree against the wife which was entitled to be enforced in other states, under the full faith and credit clause.
I deny, however, that the final question is whether this would be enforcing a personal judgment rendered in another state against the defendant, over whom the court rendering the judgment had not acquired jurisdiction. A proceeding for divorce is not in personam nor of an exceptional character, except so far as all proceedings in rem are governed by a different rule from that applicable to proceedings in personam. The validity of the latter class depends upon personal service of the defendant being obtained within the jurisdiction. The validity of the former depends upon the jurisdiction of the court over the res-in this case the marriage relation, the domicil of the plaintiff, and such jurisdiction over the defendant as as is consonant with the general principles of the Constitution with regard to due process of law.
The propositions of the opinion, as we understand it, may be summarized as follows:
That, if one government, by virtue of its authority over marriage, may dissolve the tie as to citizens of another government, that other government would have a similar power, and hence the right of every government over its own citizens might be rendered nugatory by the exercise of the power which every other government possesses. To illustrate by the present case: That, if the husband may desert his original domicil in New York, go to the state of Connecticut, acquire a domicil there, and procure a divorce which would be binding in New York as to the party there domiciled, it would follow that the power of the state of New York as to the dissolution of the marriage, as to its domiciled citizen, would be of no practical avail. The opinion, however, fails to state the logical result of this proposition, viz., that no divorce would be possible in either state without a personal service upon the other within the state. If the husband, having his domicil in Connecticut, could not obtain a divorce against his wife domiciled in New York without a personal service, it follows that the wife, domiciled in New York, could not obtain a divorce against her husband in that state without a personal service there.
Undoubtedly the laws of some states are more liberal upon the subject of divorce than those of other states, but that does not affect the question. If the complaining party has acquired a domicil in the state in which he institutes proceedings, he is entitled to the benefit of the laws of that state with respect to the causes of divorce.
It is argued that, as the Constitution delegated no authority to the government of the United States on the subject of marriage and divorce, yet, if the validity of the Connecticut divorce in this case be sustained, it follows that the destruction of the power of the states over the dissolution of marriage of its own citizens would be brought about by the full faith and credit clause of the Constitution. But this was the very point decided in the Atherton Case, where a divorce obtained in Kentucky by publication was held good in New York, as against a proceeding by the wife for a divorce in that state. It is true that the matrimonial domicil was in Kentucky. But this does not affect the proposition asserted in the opinion, that the decree did work a dissolution of the marriage, as to her, by the operation of the full faith and credit clause of the Constitution, and to that extent it did work a destruction of the power of the state of New York over the dissolution of the marriage. But the argument to that effect was not considered by this court to be sound. It does undoubtedly follow that the res, that is, the marriage relation, was as much in the state of New York as it was in the state of Connecticut, but it does not follow that the action of the Connecticut court with respect to that res is not as much obligatory in New York as in Connecticut. It is of the very essence of proceedings in rem that the decree of a court with respect to the res, whether it be a vessel, a tract of land, or the marriage relation, is entitled to be respected in every other state or country. The status fixed by the adjudication in the state of the former is operative everywhere. Indeed, the proposition is so elementary as not to need the citation of an authority.
The conclusion of the argument is that the courts of New York, having the same power to decree a dissolution of the marriage at the suit of the wife that the courts of Connecticut would have to make a similar decree at the suit of the husband, it would become a mere race of diligence between the parties in seeking different forums in other states; or the celerity by which in such states judgments of divorce might be procured would have to be considered in order to decide which forum was controlling. Granting this to be the case, does not every plea of res judicata presuppose a prior judgment, and is it a defense to such plea that such judgment was obtained by superiority in a race of diligence? The whole doctrine is founded, if not upon the doctrine of superior diligence, at least upon the theory of a prior judgment, which fixes irrevocably the rights of the parties whenever and wherever these rights may come in question. Nor is the rule less operative where suits are in different states and the laws applicable to the questions therein arising are different. To illustrate: Suppose a note and mortgage were given for usurious interest, and the mortgage was sought to be foreclosed in a state where, by statute, usury would invalidate both principal and interest, and a decree were obtained dismissing the bill,-can it be doubted that if the note were sued upon in another state where usury did not invalidate the security the plea of res judicata, would be sustained upon the ground that the rights of the parties had been definitely fixed in the suit for the foreclosure of the mortgage? It seems to me the same rule applies in this case. So long as no proceedings are taken, the marriage would remain valid both by the laws of Connecticut and of New York. But if a suit be instituted by either party, by the husband for a divorce or by the wife for a maintenance, and the question of marriage or no marriage be made an issue, and decided in the case first brought, that decree is forever binding upon both parties. Had the wife in this case brought suit to dissolve the marriage, or for a maintenance in affirmation of the marriage, the decree of the court in New York would have been as binding upon the court in Connecticut as the decree obtained in Connecticut ought to be upon the wife in New York.
The cases in the state courts, with a few exceptions, hereinafter noted, overwhelmingly preponderate in holding that where the plaintiff has acquired a bona fide domicil in a particular state he may lawfully appeal to the courts of that state for a dissolution of the marriage tie, for the causes permitted by its statutes, and may call in the nonresident defendant by publication. To abstract all these cases would unduly proiong this opinion.
In many of them the full faith and credit clause of the Constitution does not seem to have been called to the attention of the court, and the case was disposed of upon principles of comity, which give to the court a certain latitude of discretion, whereas, under the full faith and credit clause, the consideration given to a decree in the state where it is rendered is obligatory in every other state.
One of the earliest of these cases is that of Harding v. Alden, 9 Me. 140, 23 Am. Dec. 549, in which the parties separated, the husband going to North Carolina and the wife to Rhode Island. She began proceedings there, which culminated in a divorce for adultery committed in North Carolina, the husband having been personally cited to appear, but refusing to do so. The divorce was held to be valid, the court observing that 'the protection of innocent parties and the purity of public morals require that divorces lawfully pronounced in one jurisdiction, and the new relations thereupon formed, should be recognized as operative and binding everywhere,' in the absence of fraud or collusion. The ruling was that the wife was entitled to dower in lands of which the husband was seised during coverture, the statute expressly giving the right where divorce was decreed for the cause of adultery, as if the husband were dead.
In Barber v. Root, 10 Mass. 260, the parties, originally domiciled in Massachusetts, removed to Vermont, and established a permanent domicil there. The court, while repudiating the idea that a divorce could be granted to a person who was not domiciled in Vermont, held the divorce to be good.
In Hood v. Hood, 11 Allen, 196, 87 Am. Dec. 709, a divorce obtained in Illinois by the husband for desertion, upon notice by publication in a newspaper, was held to be valid as against the wife, although she was then living in Massachusetts under an agreement on his part to pay her a certain sum per week; and although she had no actual notice of the proceedings, and was not in Illinois during the pendency thereof. It was further held that she could not, in a libel for divorce brought by her in Massachusetts, offer evidence that the Illinois decree was obtained by fraud, and upon facts which would not entitle her to a divorce in Massachusetts. In a subsequent case between the same parties (110 Mass. 463) the court again decided that the Illinois decree could not be impeached, and that she was not entitled to dower in any lands of which the husband was seised during the coverture.
The whole subject was very carefully considered in Burlen v. Shannon, 115 Mass. 438, which was an action against the husband for board furnished the wife. The husband, whose wife was living apart from him without justifiable cause, removed to Indiana, acquired a domicil there, and obtained a decree of divorce by publication, and by leaving a summons at her abode in Massachusetts. The divorce was held to be valid in Massachusetts as to all persons, although the wife had never been in Indiana, never appeared in the suit there, had no knowledge that her husband contemplated going to that state, or had left Massachusetts, until after he had filed his libel for divorce. The authorities are reviewed by Mr. Justice Gray, and the conclusion reached that the divorce in Indiana was valid.
Cummington v. Belchertown, 149 Mass. 223, 4 L. R. A. 131, 21 N. E. 435, was an action to recover expenses incurred by the plaintiff for the support of an insane pauper. The husband had removed to another state and procured a decree annulling the marriage on the ground of fraud in concealing from him the fact of insanity before their marriage. Notice of the proceedings was served upon her, but she was not represented, and it was held that the decree was insufficient to annul her marriage in Massachusetts. It was held, under the familiar rule that the jurisdiction of the foreign court may be inquired into, that the wife, when the proceedings were commenced and concluded, was utterly insane, and that the record of the New York courts showed her to have been so, and that no guardian was appointed. The case was disposed of as one over which the New York court had acquired no jurisdiction. It does not qualify in any way the previous case of Burlen v. Shannon.
The case of Ditson v. Ditson, 4 R. I. 87, is directly in point, and I understand it to be so admitted. It was held that a divorce in Rhode Island on the ground of desertion was valid, though the husband had never been within the jurisdiction of Rhode Island, and only constructive notice of the pendency of the petition had been given him.
The rule in Kentucky is settled in Rhyms v. Rhyms, 7 Bush, 316, in which a wife proceeded against her husband as a nonresident by a warning order, and it was held that the court had jurisdiction to grant her a divorce, Chief Justice Robertson remarking: 'It would be a reproach to our legislation if a faithless husband in Kentucky could by leaving the state, deprive his abandoned wife of the power of obtaining a divorce at home.' In Hawkins v. ragsdale, 80 Ky. 353, 44 Am. Rep. 483, it was held that a divorce obtained by the husband in Indiana by constructive service determined the status of the party in Kentucky, and under the statutes of that state it barred all claim to curtesy or dower in Kentucky lands. To the same effect is Perzel v. Perzel, 91 Ky. 634, 15 S. W. 658.
The law of California is settled in Re Newman, 75 Cal. 213, 7 Am. St. Rep. 146, 16 Pac. 887, to the effect that a suit for divorce, so far as it affects the status of the parties and the custody of their children, is a proceeding in rem, and service by publication on a nonresident defendant is good. This ruling was repeated in Re James, 99 Cal. 374, 37 Am. St. Rep. 60, 33 Pac. 1122, where it is declared that such decree is equally valid in other states.
Nowhere is the rule more strongly asserted than in Tennessee, where a decree obtained in Illinois by publication was sustained in Thomas v. King, 95 Tenn. 60, 31 S. W. 983, and where it seems to have been held that the decree could not be impeached, even by showing the absence of necessary residence.
In Cooper v. Cooper, 7 Ohio, pt. 2, p. 238, it was held that a divorce granted in Indiana precluded an application for a divorce and alimony in Ohio. In Cox v. Cox, 19 Ohio St. 502, 2 Am. Rep. 415, the validity of a foreign decree of divorce obtained by constructive service, except so far as regarded the question of alimony, was sustained. The same ruling was made in Doerr v. Forsythe, 50 Ohio St. 726, 40 Am. St. Rep. 703, 35 N. E. 1055, holding that while the Indiana divorce was good, it did not affect the property rights of the wife in the state of Ohio.
The rule in Missouri is stated in Gould v. Crow, 57 Mo. 200, that a divorce regularly obtained by the husband in Indiana on an order of publication operates as a divorce in his favor in Missouri, so as to prevent his wife from claiming dower in lands owned by him in that state. The decree so pronounced is a judgment in rum and is valid everywhere under the Constitution and laws of the United States. A like ruling was made in Anthony v. Rice, 110 Mo. 223, 19 S. W. 423.
The law in Kansas is settled in Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779, to the effect that the courts of a sister state may dissolve a marriage relation between a husband domiciled there and a wife domiciled in Kansas, by publication, although unknown to her; but that such courts have no power to settle the title of lands in Kansas or control the custody of children residing there. But it was also decided in Chapman v. Chapman, 48 Kan. 636, 29 Pac. 1071, that a wife having obtained a divorce in Ohio upon service by publication, was not entitled to dower in lands in Kansas fraudulently conveyed by her husband in fraud of her or others.
In Smith v. Smith, 43 La. Ann. 1140, 10 So. 248, it is held that a wife may acquire a separate domicil from that of her husband, where his conduct has been such as to furnish ground for divorce, and her marriage status becomes subject to the jurisdiction of that domicil, and that the courts thereof may grant a divorce upon actual or constructive notice. The rights of the Louisiana courts to decree a divorce against an absentee by means of substituted service is again affirmed in Butler v. Washington, 45 La. Ann. 279, 19 L. R. A. 814, 12 So. 356.
The law of Wisconsin is the same. Shafer v. Bushnell, 24 Wis. 372; Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 443, though in the latter case the right of the wife to an interest in her husband's lands in Wisconsin was preserved.
In Thompson v. State, 28 Ala. 12, the right of the husband to emigrate and acquire a new domicil, and procure a divorce upon publication in the state of his domicil was also affirmed. See also Turner v. Turner, 44 Ala. 437. In the latter case it is indicated that a foreign divorce did not settle the rights of the wife to dower in his lands, or any other interests of a pecuniary character.
In Kline v. Kline, 57 Iowa, 386, 42 Am. Rep. 47, 10 N. W. 825, a decree rendered in another state on service by publication was recognized, except so far as it attempted to fix the custody of the minor children. In Van Orsdal v. Van Orsdal, 67 Iowa, 35, 24 N. W. 579, the property rights of the wife were recognized, but this right was limited to property within the state, and which the husband owned at the time of the divorce, and not to what he subsequently acquired. In this case it was said; 'The divorce was granted . . . in May, 1880. In November, 1881, the defendant's father died in this state, possessed of certain property which the defendant inherited. Now, while it may be that the plaintiff might be entitled to alimony if the defendant had owned property in the state at the time the divorce was procured in Nebraska, she cannot be so entitled because he has subsequently acquired property. The plaintiff, if entitled to alimony, was so entitled at the time the divorce was granted. The relation of husband and wife then ceased, and neither party is entitled to any share or interest in property which may be subsequently acquired.'
In Indiana the girht of a wife domiciled there to a divorce against the husband who never resided in that state, and upon whom service was only obtained by publication, is recognized in Tolen v. Tolen, 2 Blackf. 407, 20 Am. Dec. 742; Hood v. State, 56 Ind. 263, 26 Am. Rep. 21; and in Hilbish v. Hattle, 145 Ind. 59, 33 L. R. A. 783, 44 N. E. 20, it was held that the wife had no rights in his property by virtue of her marriage relations with the husband, though the court did not, in the divorce proceedings, adjudicate the property rights of the parties.
In Garner v. Garner, 56 Md. 127, the power to grant a divorce against a nonresident, upon whom process had not been served, was recognized, but the right to a decree that the nonresident should not marry again was denied.
In Thurston v. Thurston, 58 Minn. 279, 59 N. W. 1017, the divorce was recognized, though process was served outside of the state. But it was held that the question of alimony was not res judicata by reason of the judgment. The wife was allowed alimony out of the property in Minnesota.
The validity of foreign divorces obtained without personal service is recognized in Illinois, in Knowlton v. Knowlton, 155 Ill. 158, 39 N. E. 595, and in Dunham v. Dunham, 162 Ill. 589, 35 L. R. A. 70, 44 N. E. 841.
The law in New Jersey appeared at one time to favor the contention of the wife in this case. The gist of the decisions seemed to be that a foreign decree is enforceable in another state only on the ground of comity. This was indicated in Doughty v. Doughty, 28 N. J. Eq. 581, though the decree in that case was held to have been obtained by fraud. It was admitted that the decree obtained by the husband in Illinois was lawful and binding there, but is was held that it did not change the status of the wife in New Jersey, her citizenship there being admitted. The case was properly decided on the ground that the husband went to Illinois to obtain a divorce, and acquired no bona fide domicil there. The same rule was recognized in Flower v. Flower, 42 N. J. Eq. 152, 7 Atl. 669. These cases, however, seem to have been overruled in Felt v. Felt, 59 N. J. Eq. 606, 47 L. R. A. 546, 83 Am. St. Rep. 612, 45 Atl. 105, 49 Atl. 1071, where it was held that the domicil of the complainant in a foreign state was sufficient to give jurisdiction, notwithstanding the defendant had not been served with process there. The chief justice remarked in this case: 'A condition of the law which makes the intercourse of a man and woman either legitimate or adulterous as they happen to be within the limits of one state or another is not to be tolerated any further than is plainly required by public policy.' This case evidently puts New Jersey in line with the vast majority of other states.
The cases of New York upon this subject are numerous and perhaps not wholly reconcilable, but we think that the law, as summarized in the last case of Winston v. Winston, 165 N. Y. 553, 59 N. E. 273, is adverse to the validity of a divorce obtained in another state without service of process within the jurisdiction. Of the same tenor are the cases in Pennsylvania: Colvin v. Reed, 55 Pa. 375; Reel v. Elder, 62 Pa. 308, 1 Am. Rep. 414. North Carolina: Irby v. Wilson, 21 N. C. (1 Dev. & B. Eq.) 568; Harris v.Harris, 115 N. C. 587, 44 Am. St. Rep. 471, 20 S. E. 187, South Carolina: McCreery v. Davis, 44 S.C.. 195, 28 L. R. A. 655, 51 Am. St. Rep. 794, 22 S. E. 178.
The law in this country, then, may be summarized as follows: In Maine, Massachusetts, Rhode Island, Kentucky, California, Tennessee, Ohio, Missouri, Kansas, Louisiana, Wisconsin, Alabama, Iowa, Indiana, Maryland, Minnesota, Illinois, and New Jersey, the validity of a divorce obtained in another state by a party there domiciled, in a proceeding where constructive service upon the defendant only is obtained, is fully recognized. In Ohio, Iowa, and Minnesota, and perhaps also Louisiana and Alabama, her right to alimony and to dower is preserved. But the very cases which limit the effect of the divorce, so far as property rights are concerned, restrict such rights to dower in lands of which the husband was seised during coverture, and inferentially, at least, to alimony from such property. It is also limited to property within the state where suit is brought. That her rights in her husband's property should extend to property acquired by him long after the divorce is nowhere indicated.
The only states in which it is held that a party domiciled in another state may not obtain a divorce there by constructive service are New York, Pennsylvania, North and South Carolina.
A proceeding for divorce is a suit in rem, with which is often incorporated a suit in personam. The res is aptly stated in Ellison v. Martin, 53 Mo. 575, as 'the status of the plaintiff in relation to the defendant, to be acted on by the court. This relation being before the court in the person of the plaintiff, the court acts on it, and dissolves it by a judgment of divorce.' The fact subsequently ascertained, that it may have been procured by fraud or false testimony, is wholly beside the question, as we shall hereafter show. The fact that the husband changed his domicil to another state, after the cause of action arose, is also immaterial. The status of the husband in this case was irrevocably fixed by the decree. It is unnecessary to consider how far it affected the status of the wife in New York, which, in respect to other questions, may be subject to the local law; but her relations as against her husband are controlled by the decree which fixed his status. Indeed, it would be a reproach to our jurisprudence if an injured party residing in one state could not obtain a decree from the other party, without pursuing the offending party into another and distant state, where he or she may have chosen to establish a domicil.
In this case the referee reported that the defendant abandoned the plaintiff without cause or justification. An exception was taken to this report, and the testimony was sent up, which shows that the parties separated on the day of their marriage and have never lived together since. The testimony leaves it doubtful whether it was a case of abandonment or of separation by mutual consent. It does, however, show that plaintiff took no steps to assert her marital rights for twenty-six years after her marriage. Her husband having in the meantime inherited a large amount of property from his father, she began suit for divorce a mensa et thoro and an allowance of alimony. This suit, however, was ineffectual so far as respects the alimony, as no personal service was obtained. She waited again for five years and began this proceeding both for a separation, which she had already obtained, and for alimony.
We think the defendant may lawfully reply this: 'You are pursuing me as your husband for a separation de jure which has existed for thirty-one years de facto, and since 1894 de jure, and for an alimony which is obviously the sole object of your proceeding. Your only claim against me is as your husband. I am not your husband. Twenty-three years ago the superior court of Litchfield county, Connecticut, in which state I had an actual and bona fide domicil, and which had had sole jurisdiction over my marital status for twelve years, liberated me from the bonds of matrimony and pronounced me a free man. In the meantime I have married another woman, and if your position be a sound one, I am, at least in the state of New York, a bigamist, and my wife an adulteress.' It is difficult to conceive of a case calling more loudly for the application of the general doctrine.
As no question is made as to the validity of the Connecticut decree and its legal effect in that state, and as this court has repeatedly decided that, under the full faith and credit clause of the Constitution, a judgment conclusive in the state where it is rendered is equally conclusive everywhere in the courts of the United States (Cheever v. Wilson, 9 Wall. 108, 19 L. ed. 604; Mills v. Duryee, 7 Cranch, 483, 3 L. ed. 412; D'Arcy v. Ketchum, 11 How. 165, 13 L. ed. 648), I do not understand how this decree can be denied the same effect in New York that it has in Connecticut without disregarding the constitutional provision in question. The result is that the husband, freed from the bonds of matrimony in Connecticut, was at liberty to contract another marriage there, while the wife cannot, even at this late day, contract another marriage in New York without being guilty of adultery.
3. It is insisted, however, that the decree of the Connecticut court was obtained by the fraud of Haddock, in stating in his complaint that his wife had deserted him, when, in the present case, it appears from his own testimony that he, in fact, abandoned and refused to live with her, or that they separated by mutual consent.
The evidence upon which the Connecticut decree was granted does not appear in the record, and it is possible that the case was made out by the testimony of other witnesses. But, however that may be, this decree cannot be impeached by evidence that it was obtained by false testimony, even though it be testimony of the plaintiff in that proceeding and the defendant in this. Hood v. Hood, 11 Allen, 196, 87 Am. Dec. 709, in which it was held that both parties had their domicil in Illinois, and were subject to the jurisdiction of its courts, and that the fact of desertion by the wife was conclusively settled between the parties by the decree in Illinois, and it was not competent for the wife to contradict it on a libel filed by her afterwards in Massachusetts. See same case, 110 Mass. 463.
The rule is well settled that while a judgment or decree may sometimes be impeached for fraud, it can only be for a fraud extrinsic to the cause,-as, that the judgment was collusively obtained to defraud some other person; and that it cannot be impeached by either of the parties thereto by reason of false testimony given at the time, or which must have been given to establish the plaintiff's case, or even by perjury of one of the parties thereto. Granting that the testimony shows the absence of good faith, and even perjury, on the part of the husband, in the Connecticut suit, the decree cannot be opened for that reason, or for any reason, which would not logically involve a re-examination of the entire facts upon which the decree is obtained. Christmas v. Russell, 5 Wall, 290, 18 L. ed. 475; United States v. Throckmorton 98 U.S. 61, 25 L. ed. 93; Simms v. Slacum, 3 Cranch, 300, 2 L. ed. 446; Ammidon v. Smith, 1 Wheat. 447, 4 L. ed. 132; Smith v. Lewis, 3 Johns. 157, 3 Am. Dec. 469; Marriot v. Hampton, 7 T. R. 269; Demerit v. Lyford, 27 N. H. 541, 546; Peck v. Woodbridge, 3 Day, 30; Dilling v. Murray, 6 Ind. 324, 63 Am. Dec. 385; Homer v. Fish, 1 Pick, 435, 11 Am. Dec. 218; Lewis v. Rogers, 16 Pa. 18; Sidensparker v. Sidensparker, 52 Me. 481, 83 Am. Dec. 527; Boston & W. R. Corp. v. Sparhawk, 1 Allen, 448, 79 Am. Dec. 750; Damport v. Sympson, Cro. Eliz. pt. 2, p. 520; Eyres v. Sedgewicke, Cro. Jac. 601; Mason v. Messenger, 17 Iowa, 261, 272; Walker v. Ames, 2 Cow. 428; White v. Merritt, 7 N. Y. 352, 57 Am. Dec. 527.
When it is considered that the status of the defendant was fixed by the decree of the Connecticut court in 1881, in a proceeding of which his wife had due notice, that upon the faith of this decree he remarried the following year, and that the plaintiff made no move to establish her conjugal rights for thirteen years thereafter, and for twenty-six years after her marriage, the injustice of holding all these proceedings to be null and void, even upon the assumption of perjury committed by the defendant, becomes the more manifest. We think that at least the record should have been received.
I regret that the court in this case has taken what seems to me a step backward in American jurisprudence, and has virtually returned to the old doctrine of comity, which it was the very object of the full faith and credit clause of the Constitution to supersede.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse