The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-04-27

bands cruel and abusive treatment, the
wife left him and went back to her mother
at Clinton, and remained thereafter a
resident and domiciled in the State Of
New York. When she left Kentucky
she did so with the purpose and inten-
tion Of not returning, but OF perma-
nently residing in the State Of New York.
In 1893 the wife, MARY ATHERToN, sued
the husband for a separation or a divorce
from bed and board on the ground OF
cruelty. In the husbands answer he
set up an absolute divorce, which he
had obtained in March, 1903, in the State
Of Kentucky. The wife was not per-
sonally served with process within the
State Of Kentucky, o did she appear
in the action. Mr.. Justice GRAY, in rem
dering the opinion of the Supreme Court
Of the United States, after quoting many
authorities showing the wide diversity
Of opinion existing upon this important
subject, which he said ~admonished to
confne the decision to the exact case
before the Court, said:
This case does not involve the validity Of a
divorce granted. on constructive service. by the
court Of a State In which only one OF tho parties
ever had a domiGle; nor the question to what e4-
tent the good faith OF the donleile may be after
ward inquired Into, In this case the divorce in
Kentucky was By the court Of the state which had
always bctn tho undoubtcd domicile OF tho hus"
band, and which was the only matrimonial doml-
cile Of the husband and vito. 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"
There Chief Justice FULLER and Mr..
Justice PEcKHAM dissented. That de-
cision, Mr.. Justice WHITE says, was
based on the principle Of matrimonial
domicile, and the divorce was recog-
nized because the u%ndoubted domicile
OF both husband and wife had been in
the State Of Kentucky, the theory Of in
dividual and separate domicile being
irrelevant to the question involved in
that case. But Justice HOLMES says
there Is no difference between the .Ather-
ton case and the present case except
that in the Atherton case the forum Of
| the first decree was that Of the matri-
monial domicile, whereas in this new
case the court was that Of a domicile
afterward acquired.
An examination of the Atherton case
and Of the cases therein cited by Judge
GRAY with apparent approval, especially
the Ditson ease in Rhode Island and
certain Massachusetts, cases. clearly in
dicates that the tendency of the Ather-
ton case was opposite to the new de-
cision.
1t is, indeed, difficult to differentiate
exactly between various decisions Of a
great court and to determine their full
and exact meaning, when the very Judges
Of that court put different constructions
upon their previous decisions. But,
however that may be, and no matter
what was intended to be decided in the
Anterior case, we now welcome this
new decision because we think it is sound
and just and good law. AS Mr.. Justice
WHITE remarks:
Under the ule eontended for. 1t would follow
that the States whose laws were the most lax as
10 length Of residence required for dom,clle, as to
Causes for divorce and 10 speed Of procedure con-
corning divorce. would in effect dominate all the
! other States. In other words, any person who
was married in one state aud who wished TO violate
the marital obligations would be able, by following
the lines Of least resistance. TO 60 into the State
whose laws were the most lax. and there avail OF
them for the purpose Of the severance OF the mar
Rage tie and the destruction OF the rights OF the
other party to the marriage contract, 10 the over
! throw Of the laws and public policy OF the other
States"
These graphic words picture the ex-
act situation of to-day. Wives and hus-
bands, firing Of their partners, and wish
ing to violate the matrimonial obliga-
tions which they voluntarily assumed,
greedily search for the most favorable
forum, follow the lines Of least resist
ance, and obtain in Rhode Island or
South Dakota or some other State a
divorce; and this evil cannot be stopped.
Whenever the defendant will come to be
served within the foreign State or will
appear by'some attorney, the decree will
be good in all the other States of the
| Federal Union; but where there is no
personal appearance and no actual SER
vice Of process within the State, then the
divorce will be good only within the
limits of the State where 1t is granted,
and in such States Of the Federal Union
az favor the lax view according credit
to such DEGREES Of divorce.
The decree will not be good in the
| State Of New York, nor will it be recog-
nized as good by the Supreme Court of
the United States, and it will probably
not be held to be good when questioned
in any court Of any foreign country.
It is we'll that the growing evil has
been checked. 1t cannot be eradicated
for there will always be cases of icti-
tious domicile or domicile established
merely and solely for the purpose OF
getting a divorce without the slightest
intention on the plaintiffs part Of remain
ing within the new State. The plant
defendant, by voluntary appearance in
such cases, will facilitate the granting
of a binding decree, and such cases will
be in the majority.
The redeeming feature Of the whole
situation Is that by this decision our
great Federal court has put a stop to the
unlimited spread Of fictitious divorces.