Lead Opinion
The only question here is the validity of Act 36 of 1957, which added the following provision to the statute governing the matter of residence in divorce cases: "The word 'residence’ as used in Section 34-1208 is defined to mean actual presence and upon proof of such the party alleging and offering such proof shall he considered domiciled in the State and this is declared to be the legislative intent and public policy of the State of Arkansas.” Ark. Stats. 1947, § 34-1208.1. The effect of the 1957 statute is to substitute residence, in the sense of physical presence, for domicile as a jurisdictional requirement in divorce cases. The chancellor held the act unconstitutional and, finding that the plaintiff-appellant is not domiciled in Arkansas, dismissed his suit for divorce.
The parties were married in 1948 and were living-in Maryland when they separated in 1952. The record does not show where the marriage ceremony was performed, but it was evidently in some state other than Arkansas. It is not contended that either of the parties had ever lived in Arkansas before the appellant came here in May of 1957. At that time he was transferred by his employer, a private corporation, to a station in Millington, Tenxiessee, which is some twenty miles northeast of West Memphis, Arkansas. Wheat rented an apartment in West Memphis and traveled back and forth each day to his work at Millington. After havixxg thus resided in Arkansas for about three months Wheat filed this suit for a divorce, on the ground of three years separatioxi. Mrs. Wheat, who is a resident of California, was served by warning order. She filed a crosscomplaixit asking for separate maintenance, but she denied the court’s jurisdiction to grant a divorce. Although Wheat testified that he intends to make Arkansas his home, the weight of the evidence supports the chancellor’s findixxg that Wheat has xiot established his domicile in this state. Hence the case turns upon the validity of Act 36, by which the jurisdictional requirement of domicile was abolished.
The legal history that lay behind Act 36 is well known. The Civil Code of 1869 required the plaintiff in a divorce case to prove residence in the state for one year next before the commencement of the action. C. & M. Dig., § 3505. In 1931 the legislature amended the statute to require only that the plaintiff prove residence for three months next before the judgment and for two months next before the commencement'of the action. Ark. Stats., § 34-1208. In 1932 we held that the amended statute meant residence only, not domicile. Squire v. Squire,
Although the wisdom of Act 36 is of no concern to the courts, since the law of divorce is purely statutory, Squire v. Squire, supra, Young v. Young,
Arkansas is one of the five states in which the necessary period of residence is relatively short. In Idaho and Nevada the period is six weeks, in Wyoming sixty days, in Arkansas three months before judgment, and in Utah three months before the commencement of suit. At the time Act 36 was adopted all five of these states demanded proof of domicile as a condition to the granting of a divorce.^
It is a matter of common knowledge that every year thousands of unhappily married persons, unable to obtain divorces at home, visit one or another of these five states in search of marital freedom. It is equally well known that the need for proof of domicile leads to perjury in a vast number of instances. The situation in Nevada, for example, has been described in these words: “It has been estimated that 8,616 divorces were granted in Nevada in 1942 and 11,399 in 1943, the great majority of which must have been obtained by non-residents who went to Nevada solely for divorce purposes, remaining there only the required six weeks. All the while they contemplated returning to their home states immediately after their divorces were secured, yet they all swore falsely that they intended to make Nevada their permanent home, having been warned by local counsel that, unless they did so, they would be out of court. On advice of counsel they also took steps which would be accepted by the Nevada courts as corroborating their sworn statement but were actually nothing more than sham and camouflage. Upon such evidence the courts find that they acquired a Nevada domicil.” Lorenzen, Extraterritorial Divorce — Williams v. North Carolina 11, 54 Yale Law Journal 799, 801. We should be less than candid if we did not concede that similar instances of perjury have taken place in Arkansas. Act 36 goes far toward freeing litigants from the temptation to swear falsely on the issue of domicile.
To hold the act invalid we must be able to assert that it conflicts with some particular clause in the state or federal constitution. Only two clauses seem sufficiently pertinent to warrant discussion.
First is the full faith and credit clause of the federal constitution. This clause is now construed to mean that a divorce decree is not entitled to recognition in other states unless one of the parties was domiciled in the state where the decree was rendered, Williams v. North Carolina,
The full faith and credit clause deals only with the extent to which the decree is entitled to recognition elsewhere. It does not purport to say that the decree is not valid in the state where rendered; still less does it intimate that the courts cannot be authorized to act at all in the absence of proof of domicile.
We do not question the desirability of having Arkansas divorce decrees receive recognition in other states. That wish was the basic reason for the Cassen decision. But it must be remembered that a decree is not entitled to respect elsewhere merely because the statute exacts a showing of domicile as a condition to the maintenance of the suit, and this is true even though the court makes a finding that domicile does exist. The decree is still not conclusive of the issue, which may be re-examined in other jurisdictions. Williams v. North Carolina,
The other constitutional provision to be considered is the due process clause. On this point the arguments on each side are examined in detail in the majority and minority opinions in Alton v. Alton, 3d Cir., 207 Fed. 2d 667, appeal dismissed as moot,
We have studied the majority opinion in the Alton case with much care but do not find it convincing. The Fourteenth Amendment declares that no state shall deprive any person of life, liberty, or property without due process of law. The question at once arises: What person was denied due process in the Alton case? The majority’s answer is hardly satisfying: “The question may well be asked as to what the lack of due process is. The defendant is not complaining. Nevertheless, if the jurisdiction for divorce continues to be based on domicile, as we think it does, we believe it to be lack of due process for one state to take to itself the readjustment of domestic relations between those domiciled elsewhere.” It will be seen that although Alton alone could have complained of a denial of due process and did not choose to do so, the court nevertheless found that his constitutional rights were somehow being violated.
In the case at bar Mrs. Wheat, unlike Alton, elects to contest the action for divorce and to attack the validity of Act 36. We may lay aside at the outset any question about procedural due process. It is not suggested that Mrs. Wheat is being denied notice or an opportunity to be heard. To the contrary, she invokes the court’s jurisdiction by her request for separate maintenance. We also assume that there is no doubt about the power of the Arkansas courts to determine Mrs. Wheat’s marital rights in any Arkansas property her husband may own.
The difficult question is raised by the theory,/Which was the basis for the Alton decision,(that the marriage relationship is a res that remains always at the parties’ common domicile, or at their separate domiciles, and is therefore beyond the reach of courts in other jurisdictions. "See Rest., Conflict of Laws, § 110; Leflar, Arkansas Law of Conflict of Laws, § 133; and compare Corwin, Out-Haddocking Haddock, 93 Pa. L. Rev. 341. It will hardly do to side-step this issue by merely observing that the marital status in the domiciliary jurisdiction will not be affected if our decree is not entitled to full faith and credit there.
With respect to the due process clause, as distinguished from the full faith and credit clause, we are not convinced that domicile must be the sole basis for the exercise of jurisdiction over the marriage relationship .//As the court observed in Wallace v. Wallace, 63 N. M. 414,
The appellee relies strongly upon the decision in Jennings v. Jennings,
It has been pointed out repeatedly that the theory of basing divorce jurisdiction solely on domicile has led to conflicting decisions and to legal confusion ever since the theory was first formulated in connection with the full faith and credit clause. Domicile differs from residence only in the existence of a subjective intent to remain more or less permanently in the particular state. Whether that intent exists on the part of a person who comes to Arkansas can seldom be proved with any meas- • ure of certainty. Often it is only after the court has decided this perplexing question that the lack of intent ¡becomes apparent, as when the successful plaintiff immediately leaves the state. Although the/court reached its ’decision in the utmost good faith, the want of domicile becomes retroactively so demonstrable that the issue must be decided the other way when the decree is relied upon _ in another state.
By Act 36 the legislature has substituted the simple requirement of three months residence, which can be proved with certainty, for the nebulous concept of domicile, which usually cannot be proved. We concede that the period of residence might be shortened so unreasonably, as in the Jennings case, as to indicate that the state has no reasonable basis for exercising jurisdiction over the marriage. We are not convinced, however, that the act before us is open to that criticism. Under the holding in Squire v. Squire, supra, the rule of Act 36 actually prevailed in this state for fifteen years. Now that the legislature has unmistakably expressed its intention in the matter, we do not feel that the due process clause compels us to say that its action is arbitrary.
Reversed.
Concurrence Opinion
(concurring). I write this concurrence, not because I disagree with the reasoning of the majority, but simply to express my personal feelings on the issue involved. There has not been a case before this Court, subsequent to my entering upon the duties of this office, wherein my personal views have been so much in conflict with my interpretation of the law, or to state it simply, my “legal views.” Perhaps my greatest interest, since entering upon judicial duties in Í949 (as Chancery Judge), has been the preservation of marital harmony, and the discouragement of divorce. My personal feeling is that legislation should be directed to making divorces more difficult to obtain rather than easier to obtain, and I am unable to find too much consolation in the fact that, after all, the Act in question has no effect upon our bona fide citizens, but only affects those who take up a temporary residence for the purpose of obtaining a divorce. It might be added, that in my view, any divorce granted under the provisions of this statute, in numerous of our sister states, will probably be worth only the paper it is written on.
But yjhile this legislation is personally repugnant to me, I have been forced to conclude that the legislature had full power to validly enact the provisions of Act 36 of 1957. It is not within the scope of our authority to pass upon the wisdom of legislation, or to hold an Act invalid because we deem it unwise; to take such a view, would propel the Court into the field of legislating, which, under our system of government, is entirely alien to the proper function of the judiciary. So — while I strongly disapprove of the legislation, and hope that the G-eneral Assembly will see fit to repeal Act 36,1 am of the opinion, for the reasons set forth in the majority opinion, that the Act is valid.
We respectfully dissent.
When this case was submitted the Honorable Minor W. Millwee was a Justice of this Court, and he prepared an opinion, which he hoped would be adopted. His opinion was not acceptable to the majority, and was never delivered. However, his views won our support; and he has given us permission to use his original opinion as our dissent. Here it is, just as he prepared it:
This appeal involves the validity of Act 36 of 1957 (Ark. Stats. Sections 34-1208 and 34-1208.1). The first section of the act provides inter alia, that no decree of divorce shall be granted until a plaintiff has maintained an actual residence in this State for three full months. The second section (34-1208.1)
The problem and issues presented are well stated in the following opinion rendered by the trial court as the basis for a decree holding the Act invalid:
“On August 6, 1957, Myron W. Wheat filed suit against his wife, Alice S. Wheat, for a divorce in Crittenden County. On August 28, 1957, Mrs. Wheat filed her answer in the action and alleged, among other things, that Mr. Wheat was not a bona fide resident of the State of Arkansas.
“On or about October 31, 1957, plaintiff completed the taking of his proof (all on depositions); and, on that data, the defendant filed her motion to dismiss the complaint ‘for the reason that the evidence is insufficient to warrant the court granting the relief prayed . . .’
‘ ‘ Argument in support of this motion was based entirely upon the premise that when plaintiff rested in the development of his case, the evidence was not sufficient to warrant a finding that he was a bona fide resident of Arkansas. If that premise is correct, then the complaint must be dismissed and this action is at an end.
“Facts relative to residence (or domicile) of the plaintiff are undisputed except as to plaintiff’s own personal statement that it is his intention to make Arkansas his permanent home. That self-serving conclusion is challenged by the defendant as being inconsistent with all other facts in the record.
“Though the fact does not appear of record, argument by plaintiff’s counsel indicated that Mr. Wheat is a native of Oklahoma and was formerly a school teacher in that State. His mother still resides in Oklahoma. He has a married sister in Fort Smith, Arkansas.
‘ ‘ Mr. Wheat, now about 57 years old, is employed by North American Aviation Corporation, whose headquarters are in Columbus, Ohio. The company has places of business all over the nation, especially around U. S. Air Force bases, and in foreign countries. Mr. Wheat is subject to transfer to a new location on 24-hour notice.
“The present Mrs. Wheat is plaintiff’s third wife. The first wife went by way of a divorce in the State of Illinois; and the second one by the same route in the State of California. Dates of these events are not in the record. Plaintiff married the present Mrs. Wheat in February, 1948, hut the place is not revealed. It was not in Arkansas. The parties never lived in Arkansas during their married life. They separated around July or August, 1952, in Leonardtown, Maryland.
“Following this separation, Mr. Wheat was transferred from Maryland to Florida, where he purchased a home and brought suit against the present Mrs. Wheat for divorce. Mrs. Wheat resisted the Florida suit and it was, on advice of Mr. Wheat’s counsel, dismissed by Mr. Wheat. While living in Florida, Mr. Wheat wrote his wife and advised that he was finding happiness there and intended to make it his permanent home.
“After a little more than two years in Florida, Mr. Wheat was transferred to Columbus, Ohio, for two months and thence to California. Plaintiff volunteered the information that while in California he formed an intention to make that State his permanent home. Several months later he was transferred to Pennsylvania; and on May 1, 1957, his employer transferred Mr. Wheat to duty at the Naval Air Station, Millington, Tennessee (near Memphis).
* ‘ On the 3rd or 4th day of May, 1957, plaintiff rented a furnished apartment at a motel in West Memphis (Crittenden County), Arkansas, and has been using that as Ms home continuously since, to the extent that he sleeps there at night. He still (at the time of depositions) has a Pennsylvania license plate on his automoMle and operates under a California driver’s license. He has not assessed his automobile or anything else for tax purposes in Arkansas. His official, and only, mail address is ‘P. O. Box 7, Memphis, Tennessee. ’ He drives fifty miles daily to and from his work at Millington, Tennessee. He says he pays $110.00 a month rent for his furnished apartment ; his landlady says he pays $80.00 a month. At least one or two other persons who came to Arkansas for a divorce have lived in the same motel but they do not still live there.
“Plaintiff makes no pretense that he intends to make Crittenden County his permanent home. Instead, he says, ‘I intend to go to the Ozarks in Arkansas’ and settle down to a little farming and fishing.
“After considering all the foregoing facts carefully, and weighing them against the plaintiff’s expressed intention to make Arkansas his permanent home, the court is not able to reach a satisfactory conclusion that Mr. Wheat is a bona fide resident of Arkansas. It is our finding that Mr. Wheat is not domiciled in Arkansas.
“Counsel for plaintiff directs our attention to Act 36 of 1957 and urges that, under its provisions, it is not material whether Wheat has an honest intention to make Arkansas his permanent home. This Act, it seems to the court, does specifically .eliminate ‘intention’ as one of the elements of residence or domicile for divorce purposes and sets up a single element, to-wit: ‘actual presence’ in Arkansas ‘for three full months’.
“Counsel for defendant urges that Act 36 of 1957 is void, and of no avail to plaintiff, because it was beyond the power of our State Legislature to remove ‘intent’ as an element of domicile. It appears that this Act has not been considered by our Supreme Court from any point of view. This court proceeds, therefore, to an evaluation of its validity.
“We draw our first ray of light from a general statement of the meaning of £ residence ’ and £ domicile ’ as it appears in
‘The weight of authority continues to be that a bona fide “residence”, necessary under statutes in order to confer jurisdiction in divorce proceedings, is within the legal meaning of the word ‘ ‘ domicile ’ ’, that is, an abode aMimo manendi, a place where a person lives or has his home, to which, when absent, he intends to return and from which he has no present purpose to depart.’
From innumerable jurisdictions it is clear that ‘intention’ to establish a bona fide permanent home within the State is an indispensable element of residence or domicile as it relates to actions for divorce. Carlson v. Carlson,
‘‘In Jennings v. Jennings,
‘ * * * the statute provides that when the defendant is a nonresident of this state, the complainant need not be a resident of this state when the court has jurisdiction of both parties.
‘Has the court by virtue of the statute the power to render a decree of divorce when not only the respondent, but also the complainant resides in another state?’
“If our finding in the case at bar that plaintiff is not a bona fide resident of Arkansas with an ‘intention’ to make this State his permanent home is a correct finding, then the foregoing question posed by the Alabama court defines our problem exactly. That court proceeded to answer its own question thus:
‘Jurisdiction, which is the judicial power to grant a divorce, is founded on domicile under our system of law * * * This is true because domicile in'the state gives the court jurisdiction of the marital status or the res which the court must have before it in order to act. * * * The domicile of one spouse, however, within the state gives power to that state to dissolve the marriage. * * ’* Unless one of the parties has a residence or domicile within the state, the parties cannot even by consent confer on the courts of that state power to grant a divorce.
‘An act to be valid must be within the legislative jurisdiction of the enacting state. 59 C.J. 21 * * * Here the statute seeks to act on a status which is beyond the boundaries of the state. That it cannot do. ’
“When one state undertakes to apply its marriage and divorce laws to a marital status in another state, then the sovereignty and jurisdiction of the other state is being invaded. Such an attempt by one state to control a marital status entirely within another state is ultra vires. A state legislature may not exercise powers which the state itself does not possess. The People v. Dawell,
“It is the conclusion of this court that ‘intent’ to establish a permanent home is an indispensable element of domicile; and that domicile of one of the parties is the only basis upon which Arkansas may dissolve a marriage by divorce. Applying that fundamental concept of law, it follows that the Arkansas Legislature exceeded its powers when, in Act 36 of 1957, it attempted to remove ‘intent’ as an element of domicile; and we declare said Act to be void and of no effect. The complaint herein will be dismissed at the cost of the plaintiff.”
For reversal of the decree, the plaintiff-appellant relies primarily on Young v. Young,
The authorities generally appear to be in accord with the Chancellor’s holding that a court has no jurisdiction to grant a divorce when neither party is domiciled within the state. Since our decision in Cassen v. Cassen,
In Leflar, Conflict of Laws, Sec. 133, the learned author states: ‘ ‘ Since in legal theory the marital relationship is a status, or res, having a situs at the place where the married parties are domiciled, it follows that in legal theory an action undertaking to terminate the res in an action in rem, to be maintained only at the situs of the res, towit, the domicile. That is the way the law has developed. If a divorce is granted at the place which is the common domicile of the husband and wife, it is valid, and everywhere entitled to full faith and credit. If a court purports to grant a divorce at a place which is the domicile of neither party, the decree is a complete nullity, and entitled to no faith or credit anywhere.” The rationale of the rule requiring domicile as a basis for divorce jurisdiction is set forth by another well known authority on the subject in Goodrich, Conflict of Laws (3rd ed.) p. 396, as follows: ‘ ‘ Divorce, since it concerns the termination of the marital status, is a matter of state concern, and an act of law must accomplish it. What law? The natural answer would be the law of that place with which the person is most intimately concerned, the place ‘where he dwelleth and hath his home’; in other words, his domicile. It is the law of the domicile which determines whether or not a marriage may be terminated by divorce. In marriage cases it has been shown that the marriage will generally be recognized as good by the domiciliary law, if valid by the law where contracted. This is not true of divorce. Here there is no general policy favoring termination of the relation. It is only allowed if at all upon statutory grounds. A divorce may be granted only for a cause recognized by the domiciliary law; furthermore, only a court at the domicile has jurisdiction to grant a divorce. This is true both in England and in the United States. In the language often used by the courts: ‘This necessarily results from the right of every nation or state to determine the status of its own domiciled citizens * * *’ ” See also Lorenzen, Extraterritorial Divorce — William v. North Carolina II, 54 Yale Law Journal 799.
In the famous second case of Williams v. North Carolina,
It is true that Williams v. North Carolina, supra, and similar cases decided by the U. S. Supreme Court were concerned with the extra-territorial effect that must be given to a foreign decree under the full faith and credit clause, and did not involve the question of the validity of a non-domiciliary decree in the state where rendered, as did the Alabama case of Jennings v. Jennings, supra. After pointing this out on page 398 of his work on Conflict of Laws, supra, Judge Goodrich posed these questions: “May we expect to see it decided that such a decree is not entitled to recognition where rendered, also? Since the Fourteenth Amendment, U.S.C.A. Const., a money judgment rendered against a defendant not before the court by virtue of allegiance, valid personal service, or consent, is void even in the jurisdiction where rendered. Riverside & Dan River Cotton Mills v. Menefee,
Strangely enough, the author soon joined his colleagues in fashioning an affirmative answer to these questions. In Alton v. Alton, (C.C.A. 3rd Cir.)
“The Restatement of Conflict of Laws says flatly that a state may not create an interest where it does not have jurisdiction. Undoubtedly the result of a divorce decree is to affect interests in a matrimonial relationship. If it is still correct to say that the basis for divorce jurisdiction is domicile, a state where the party is not domiciled is, in rendering him a divorce, attempting to create an interest where it has no jurisdiction. Its attempt to do so is an invalid attempt, and contrary to the due process clause.
“We think that the premise that divorce jurisdiction is founded on domicile is still the law. It was reiterated by the Supreme Court in unequivocal language in the quotation cited above, which language is the more significant because of the strong dissent expressed by Mr. Justice Rutledge. If that premise is to disappear in the light of real or supposed change in social concepts, its disappearance should be the result of the action of higher authority than ours.
“The result suggested above is not spelled out in the books. If the Restatement generalization is correct the application necessarily follows. The Restatement generalization is demonstrably correct so far as a personal judgment for money is concerned. The arguable point here is whether in a world of changing modes jurisdiction for divorce based on domicile is as fundamental as the rule that you must have a defendant subject to your jurisdiction before you can give a personal judgment against him. Minority dictum from a member of the Supreme Court has indicated impatience with the domiciliary requirement.
“We think that adherence to the domiciliary requirement is necessary if our states are really to have control over the domestic relations of their citizens. The instant ease would be typical * * * Domestic relations are a matter of concern to the state where a person is domiciled. An attempt by another jurisdiction to affect the relation of a foreign domiciliary is unconstitutional even though both parties are in court and neither one raises the question. The question may well be asked as to what the lack of due process is. The defendant is not complaining. Nevertheless, if the jurisdiction for divorce continues to be based on domicile, as we think it does, we believe it to be lack of due process for one state to take to itself the readjustment of domestic relations between those domiciled elsewhere. The Supreme Court has in a number of cases used the due process clause to correct states which have passed beyond what the court has considered proper choice-of-law rules.”
Although the U. S. Supreme Court granted certiorari in the Alton case, it became moot when the husband procured a divorce in another jurisdiction before the court reached it on the merits and the case was dismissed in Alton v. Alton,
The holdings in Williams v. North Carolina and similar cases as well as those in the Jennings, Alton and Granville-Smith cases have evoked much comment, critical and commendable, by law writers generally.
The problem presented in the instant case is difficult and highly controversial. Admittedly no clear, comprehensive and satisfactory basis for determining divorce jurisdiction in all cases has yet been devised either legislatively or judicially. Perhaps the most appropriate remedy would be for Congress to specify a period of residence which it deemed sufficient to satisfy the full faith and credit requirements of the U. S. Constitution. Until this or some similar action is taken, we are unwilling to abandon the traditional rule that domicile in the state is an indispensable requisite for divorce jurisdiction. Even while this court still adhered to the doctrine of Squires v. Squires,
Surely there is something fundamentally wrong with a judicial double standard under which the court of one state fondly embraces a jurisdictional practice within its own realm which it condemns as downright reprehensible when indulged in by the courts of a sister state. We decline to lend a hand to such judicial amorality and duplicity. If domicile is the jurisdictional test for the compulsory recognition of a foreign divorce decree, as the IT. S. Supreme Court has repeatedly held, then the same test should determine the validity of a decree in the state where rendered. In our opinion the holdings of the Alabama Supreme Court and the Circuit Court of Appeals to that effect in the Jennings and Alton cases, supra, are logical and sound.
Notes
Act 36 designated this section as 34-1208 (a) but this was changed by the compilers of Arkansas Statutes to preserve the uniformity of the numbering system of the statutes.
Goodrich, Conflict of Laws, supra; 32 Va. L. Rev. 555; 93 U. of Pa. L. Rev. 341; 28 Harvard L. Rev. 930; 67 Harvard L. Rev. 615; 54 Yale L. J. 799, supra; 42 A.B.A. 225.
Rabel, The Conflict of Laws — A Comparative Study, 397.
Lorenzen, Haddock v. Haddock, Overruled, 52 Yale L.J. 352.