Vischer v. Vischer

Hand, J.

This cause, unfortunately, brings not only the laws of this, in conflict with those of a sister state ; but is of vital importance to more than the immediate parties. Probably the peace and welfare of a third party, relying upon the decree of the court in the state of Michigan, is involved in the present controversy.

The domicil of the husband is prima facie that of the wife. ( Whitcomb v. Whitcomb, 2 Curties, 351. Jackson v. Jackson, 1 John. 425 . 2 Kent, 431, n.) And usually, a change of that of the former, changes the latter. But if separated by a decree of a competent court, and the wife remains in the same place, it seems, to me, that that presumption is rebutted as to any new domicil subsequently -acquired by the husband. Beside, the wife, here, is proved and admitted to have actually been an inhabitant of this state at the time of her marriage, and ever since. Some have supposed domicil, inhabitancy, and residence, to be synonymous terms. Others maintain there is sometimes a distinction. (See In re Wrigley, 8 Wend. 134 ; Crawford v. Wilson, 4 Barb. 520 . See Frost v. Brisbin, 19 Wend. 13 ; Roosevelt v. Kellogg, 20 John. 210 ; 2 Kent, 430, n.e; 8 Cranch, 253 ; Laud v. Smith, 15 M. & W. 433.) However that may be, I have no difficulty in saying that, for all practical purposes, the domicil of the plaintiff was not in Michigan. It was admitted on the trial that the defendant was a resident of Michigan at the time he commenced proceedings there. Whether in the strict sense of the term, his domicil was there, is not stated. It is said the place of residence is prima fade the place of domicil. (Guier v. O'Daniell, 1 Binn. 349 . 2 Kent, 430, n.) And a change of domicil requires no certain length of time, and length of time alone is not sufficient. There must be a bona fide and permanent intent—animus' et factum. Until these concur, the old domicil remains. (Somerville v. Somerville, 5 Ves. 750, 787, and Perk. note. 3 Id. 203, and notes. Craigie v. Lewin, 7 Jur. 549. The Frances, 8 Cranch, 363 . Williamson v. *644 Parisien, 1 John. Ch. 392. Story’s Confl. of Laws, § 47. In re Wrigley, 8 Wend. 134 . Att’y Gen. v. Dann, 6 M. & W. 511.) It seems the defendant returned pretty soon after the decree was entered in that state, and remained here at least some time, after his second marriage ; and perhaps the case is not clear of suspicion that there has been no bona fide change of domicil. If the defendant went to another state for the purpose of obtaining a divorce, it was in fraudem legis and unavailing ; certainly if for a cause for which no divorce could be obtained here. (Jackson v. Jackson, 1 John. 425 . Borden v. Fitch, 15 Id. 121.)

But admitting that the defendant had his domicil bona fide in Michigan, I do not see how the divorce granted there can be sustained by our courts. It is invalid, on the grounds both of fraud and want of jurisdiction. Fraud, because the allegation of desertion was not true; and want of jurisdiction, because there was no service of process upon, or appearance of, the wife. If Borden v. Fitch is law, it decides both of these points against the defendant. The parties were living separately under and- in pursuance of a decree of a competent court having jurisdiction. When that decree was pronounced, the parties had their domicil here. This was the locus contractus, and locus delicti ; and the court had jurisdiction of the person and subject matter; and, besides, judgment was given in pursuance of a stipulation. The decree of separation was therefore valid. How then could the husband say that his wife “ had willfully deserted him, and left his bed and board against his will and consent1?” The contract of marriage made here, had been modified by a decree, the validity of which, would have been recognized there. Had the defendant presented the whole case to the Michigan court, no doubt his application would have been denied. By his own showing, he would not have made a case under their statute. It was fraudulent to suppress and misstate the facts. (Borden v. Fitch, supra. Jackson v. Jackson, supra.)

But the court there acquired no jurisdiction. Ho process was served upon or notice given to the wife, except by publication in a local newspaper. In Jackson v. Jackson , our supreme *645 court intimated that an appearance by the other party, would not give the court of a sister state jurisdiction to dissolve the marriage, for causes for which it could not be dissolved, in this state. That dictum has been doubted. (Cowen & Hill’s Notesp 878.) The record of a court of a sister state, in case of appearance, is generally conclusive. (Mills v. Duryee, 7 Cranch, 481 . Starbuck v. Murray, 5 Wend. 148 . Noyes v. Butler, 6 Barb. 613 , and cases there cited.) The effect of a foreign divorce is a vexed question. In England, the contract is indissoluble, except by parliament. In Scotland, it is by law quam diu se bene gesserint; and it has been decided that an English marriage could not be dissolved in Scotland. (See Lolley’s case, 1 Dow. P. C. 124, 136; 1 Russ, on Cr. 190; 2 Clip Fin. 567, n. ; Lacon v. Higgins, Dowl. & Ryl. 38, note 1; Macarthy v. Decaix, 2 Russ, & Mylne, 614; Tovey v. Lindsay, 1 Dow. R. 117 ; Sinclair v. Sinclair, 1 Hagg. C. R. 294; Schrimshire v. Schrimshire, 2 Id. 395; Herbert v. Herbert, 3 Phill. 58 , and see reports of several Scotch cases by Ferguson, 3 English Eccl. Rep.) Some more recent cases seem to hold that such divorces are valid. (Warrenden v. Warrenden, 9 Bligh, 89. Birtwhistle v. Vardill, Id. 72; S. C. 5 Barn. & Cress. 438. And see Conway v. Beazley, 3 Hagg. C. R. 639; 2 Smith’s L. Cas. 448, 456.) Birtwhistle v. Vardill, was ejectment for lands in England by ante-nuptial offspring claiming as heir, by virtue of the Scotch marriage. The king’s bench was clearly against the action, but a re-argument was ordered in the house of lords. Warrenden v. Warrenden, seems to overrule Lolly’s case, but is distinguishable. The general rule is, that the law of the country where the contract is made, or where it is to be performed, furnishes the rules for expounding the nature and extent of its obligation; but the law of the country where it is sought to be enforced, governs all questions as to remedy and mode of proceeding. (Andrews v. Herriot, 4 Cowen, 508, and notes. Lodge v. Phelps, 1 John. Cas. 139. Comm, of Ken. v. Bassford, 6 Hill, 526 . Hyde v. Goodnow, 3 Comst. 266. Ferguson v. Fyffe, 8 Clark & Fin. 121. Anstruther v. Adair, 2 Myl. & K. 513. Dues v. Smith, Jacob, 544. 2 Kent, 92. *646 Connelly v. Connelly, 14 Jur. 437 ; S. C. 2 Eng. L. & E. Rep. 570. Ryan v. Ryan, 2 Phill, 332. Decouche v. Savetier, 3 John. Ch. Rep. 211. Schrimshire v. Schrimshire supra. Herbert v. Herbert, supra.) Connelly v. Connelly, decided in the Arches court, in 1850, was a suit by the husband for restitution of conjugal rights. The parties, who were then protestants, and members, the husband being a clergyman, of the Episcopal church, were married in Philadelphia, and residents of the United States ; and afterwards, embracing Catholicism, went to Rome and resided there, and the husband was ordained a priest of the Romish church. While at Rome, a rescript or decree of the authorities at Rome, was obtained, which was claimed and pleaded to be, in effect, a separation. Both after-wards went to England, where the wife became a superioress of a convent. The court overruled the plea; and held that the parties were subject to the laws of Rome, only while there; and that they did not carry that law with them to England. He said, “ we all know, that in questions of marriage contract, the lex loci contractus is that which is to determine the status of the parties.” That “ by consent of all nations, it is the jus genthtm, that the solemnities of the different nations, with respect to marriages, should be observed, and that contracts of this kind are to be determined by the laws of the country where they are made.” Now, if it is implied that the contract shall not be dissolved by the courts of another state, except for causes allowed by the law of the state where it was made, a divorce by the courts of another state for any other cause would, perhaps, be impairing the obligation of a contract. But this contract is somewhat peculiar, and perhaps that is an implied agreement, that the marital obligation shall always be regulated by the law of the state or country where the parties shall acquire a domicil; and their rights, duties and obligations, from the relation of husband and wife, be defined by the municipal law of that domicil. The validity of the marriage, of course, depends upon its conformity to the lex loci contractus. And perhaps if the parties are both residents here and intend to continue so, it is hardly reasonable to say, that a marriage in transitu or in *647 itinere, in another state, in which divorces are granted for minor causes, is an agreement that the marriage shall be dissoluble for those causes. Being a civil contract, it may be said, it is to be performed in any place where the parties shall afterw'ards voluntarily reside, animo manendi. Our courts acquire jurisdiction in the cases under the regulations prescribed by our own statutes. (2 R. S. 144. Johnson v. Johnson, 4 Paige, 467 . Decouche v. Savetier, 3 John. Ch. Rep. 211. Mix v. Mix, 1 Id. 204. Williamson v. Parisien, 1 Id. 392. And see Dartmouth College v. Woodward, 4 Wheat. 418 ; Barber v. Root, 10 Mass. Rep. 265 ; Story’s Confl. of Laws, ch. 7.) And whatever may be the rule in respect to divorces granted by the courts in other countries, I am inclined to the opinion, that a divorce granted by the courts of one of our sister states, after appearance; or, if the parties are domiciled there, after personal service, there being no fraud or collusion, would be conclusive here. And it may be doubted, in case of an appearance and litigation on the merits, whether proof of the domicil of the parties or the lex loci contractus, or the locus delicti, would affect the decree. However, the decree of divorce in Michigan is invalid, on the ground just suggested. It is a sound principle of law, as well as of natural justice, that no person should be bound by a judgment without an opportunity to be heard. (Kilburn v. Woodworth, 5 John. 37 . Robinson v. Executors of Ward, 8 Id. 86 . Fenton v. Garlick, 8 Id. 197. Hollingsworth v. Barbour, 4 Peters, 466 . D’Arcy v. Ketchum, 11 How. U. S. Rep. 165. Starbuck v. Murray, 5 Wend. 148 . Shumway v. Stillman, 6 Id. 447. Johnson v. Hunt, 23 Id. 87. Noyes v. Butler, 6 Barb. 613 . Chit. on Contracts, 684, note 2, Perkins’ ed.) And this rule has been applied here, in cases of foreign divorce. (Borden v. Fitch, 15 John. 121 . Bradshaw v. Heath, 13 Wend. 407 . And see Pawling v. Bird’s Ex’rs, 13 John. 192 .) In D’Arcy v.' Ketchum, the supreme court of the United States held a judgment against an absent partner, under our statute allowing judgments in form against an absent joint debtor, was void. Proceedings in rem, that is, when they strictly pursue the spe *648 cific property, may be sustained; but it is doubtful whether the courts can do more.

[Schenectady Special Term, November 10, 1851.

The plaintiff is entitled to a divorce a vinculo matrimonii, and to alimony. And the child must remain in her custody until the expiration of the time fixed in the former decree of separation; after which period, his custody may be a subject for the further consideration of the court.

Decree accordingly.

Hand, Justice.]