Sewall v. Sewall, 122 Mass. 156

Sewall v. Sewall

122 Mass. 156 | Mass. | 1877

Gray, C. J.

“ Every state has an undoubted right to determine the status, or domestic and social condition, of the persons domiciled within its territory; except in so far as the powers of the states in this respect are restrained, or duties and obligations imposed upon them, by the Constitution of the United States. *161Strader v. Graham, 10 How. 82, 93. Ho control over the subject of marriage and divorce has been conferred by the Constitution upon the national government, but each state retains the power to regulate the grounds of divorce, and the jurisdiction to grant divorces, between those having their domicil within its territory. Hopkins v. Hopkins, 3 Mass. 158.

When a person domiciled in this state goes, in evasion and fraud of the law of his domicil, into another state, in order to obtain a divorce there, for a cause which had occurred here while the parties resided here, or for a cause which would not authorize a divorce by our law, it is within the power of the state, by its courts or its legislature, to declare or enact that a divorce, so obtained before acquiring a domicil in the other state, is or shall be of no force or effect in this state. This application of the general principle has been long recognized by this court, and has been repeatedly affirmed by statute. Hanover v. Turner, 14 Mass. 227. Rev. Sts. c. 76, § 39. Clark v. Clark, 8 Cush. 385, 387. Lyon v. Lyon, 2 Gray, 367. Chase v. Chase, 6 Gray, 157. Smith v. Smith, 13 Gray, 209. Gen. Sts. c. 107, § 54. Ditson v. Ditson, 4 R. I. 87, 93.

The only clause of the Constitution of the United States, which has been supposed to affect this case, is that by which “ full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” That clause indeed prevents the judgment of a court of another state, having jurisdiction of the cause and of the parties, from being impeached for fraud, or on any other ground. Christmas v. Russell, 5 Wall. 290. Maxwell v. Stewart, 22 Wall. 77. But when, for any reason, the court has no jurisdiction, its judgment is void, and the recital, in its record, of the facts necessary to give jurisdiction is not conclusive. Thompson v. Whitman, 18 Wall. 457. Knowles v. Gas Light & Coke Co. 19 Wall. 58. Carleton v. Bickford, 13 Gray, 591. Folger v. Columbian Ins. Co. 99 Mass. 267, 273.

It is competent, therefore, to show that a decree of divorce, granted by a court of another state, although appearing on its face to be valid, is in fact void, bécause the libellant fraudulently, and in evasion of the law of his own domicil, procured that court to exercise jurisdiction over the case. Shannon v. *162Shannon, 4 Allen, 134. Leith v. Leith, 39 N. H. 20. Hoffman v. Hoffman, 46 N. Y. 30. People v. Dawell, 25 Mich. 247. In those cases, cited for the husband, in which a divorce obtained in another state was held valid, the libellant appeared to have been domiciled in that state, and no question of fraudulently procuring jurisdiction arose. Cheever v. Wilson, 9 Wall. 108. Hood v. Hood, 110 Mass. 463. Burlen v. Shannon, 115 Mass. 438.

In the case at bar, the presiding judge found that the husband never acquired a domicil in the State of Maine, but went into that state solely for the purpose of obtaining, and did fraudulently obtain, a divorce there, for a cause which occurred in Massachusetts, and which was not a cause of divorce by our law. Upon these facts, the court in Maine clearly had no jurisdiction, and the divorce there obtained is of no force or effect in this state.

The husband still retaining his legal domicil in this Commonwealth, this court has jurisdiction of the present libel of the wife, although since their separation she has resided in another state. Gen. Sts. c. 107, §§ 13, 14. Greene v. Greene, 11 Pick. 410. Burlen v. Shannon, 115 Mass. 447. Masten v. Masten, 15 N. H. 159.

The dismissal of the wife’s former libel appears by the report to have been pursuant to an agreement of the parties, by which she condoned the husband’s previous offences and agreed to live with him again, provided he would not commit further acts of adultery; and is therefore no proof that he had not committed adultery as charged in that libel. It being found as a fact that he did afterwards commit adultery, such dismissal, agreement and condonation did not bar the wife from suing for a divorce for either his earlier or his later acts of adultery. Newsome v. Newsome, L. R. 2 P. & D. 306. Rowley v. Rowley, L. R. 1 H. L. Sc. 63, 65, 68. Robbins v. Robbins, 100 Mass. 150, and cases there cited.

The voting list and tax list were rightly excluded. They were not ancient documents, but related to facts within the memory of living witnesses. They did not prove any act or declaration of the husband. The placing of his name on the voting list, without evidence that it was placed there at hi? request, would *163be no evidence that his domicil was in the town. Fisk v. Chester, 8 Gray, 506. The tax list was not competent evidence, by reason of its having been made by public officers, for any purpose except the assessment and collection of the tax. Mead v. Boxborough, 11 Cush. 362. Commonwealth v. Heffron, 102 Mass. 148. The memorandum thereon, “ paid,” might be evidence as against the town. Lawrence v. Kimball, 1 Met. 524, 527. But it was no evidence, in the husband’s favor, that he was the person who paid the tax. Decree for the libellant.