*1 WHITEHEAD, ANN SHARON Plaintiff-Appellee, JOHN WHITEHEAD, HAWAII, Defendant, OF and STATE JAY
Defendant Intervenor-Appellant
No. 19, 1972 January MARUMOTO, ABE, RICHARDSON, C.J., LEVINSON, JJ., AND CIRCUIT JUDGE J., KOBAYASHI, IN LUM PLACE OF DISQUALIFIED *2 MARUMOTO, THE COURT BY OPINION OF J. Whitehead,
In this Ann Sharon opinion, plaintiff-appellee, will be referred as Whitehead defend- plaintiff; Jay John defendant; ant, as and Hawaii, of intervenor- State as the State. appellant, 21, 1969,
On October filed a for plaintiff complaint in divorce defendant court of third against family on circuit of mental ground inflicted grievous suffering her for than more upon Defendant was served days. Bluebell, mail at Utah, but did registered not answer.
By the State was allowed to It stipulation, intervene. filed an answer that the court had no alleging because did not aver plaintiff she had resided Hawaii for a continuous of period one before the year filing of her The averment of complaint. jurisdiction in the com- had plaint been domiciled had plaintiff or been in the circuit for a physically present continuous period at least three months its before filing.
At court, in the hearing family testified plaintiff she came to Hilo on with July the intention of re- in Hawaii maining indefinitely. she had resided Previously, in Utah. She also established to the satisfaction of the court her mental allegation grievous suffering.
The court denied the State’s claim lack of jurisdiction, entered decree of divorce as prayed by plaintiff. The State has from that appealed denial. The sole ques- tion for decision on is the appeal the dura-
tional of domicile or one physical'presence § 580-1. year the State contained HRS 580-1, HRS its reads as follows: entirety, “§ Jurisdiction; Exclusive ju- 580-1. hearing. original annulment, risdiction in matters of separation, venue, and sub- as to 603-37 change section subject law, conferred according upon also ject appeal circuit in or judges judge has been been domiciled or phys- which the has applicant at three least for a continuous ically period present No abso- next months therefor. preceding application shall lute divorce the bond be granted matrimony has been cause unless either party marriage State for or been domiciled present physically next one preceding continuous least A who be residing therefor. person may application installation, reserva- base, or federal any military State tion within the or who present *3 under shall not be orders military thereby prohibited section.” meeting requirements claim holding The court denied State’s upon § 580-1 the second violates the equal protection sentence States amendment of the United clause fourteenth Constitution. based on the reasoning: is following
The holding § 580-1 sentence of in the second durational requirement of divorce one two classes applicants; to create operates or have domiciled who been consists applicants class in for or the State one year been present have physically more; who been consists of have the other class applicants in been the State present domiciled or have physically are in the former class eli- than one applicants less year; not; divorce; such latter class are applicants gible to any legitimate has no reasonable relation classification in- classification, objective; governmental consequently, in the lat- divorce discriminates vidiously against applicants of the clause. ter class violation equal protection § It will be noticed that the first sentence of 580-1 con- tains a durational domicile or requirement involving physi- cal in a circuit. presence That concerned with provision venue. The durational therein requirement not in issue in this case. § §
The second sentence of 580-1 is derived from 55 of the Act, which “No Organic divorce shall be provided: granted nor by the shall legislature, any granted by courts of the unless the therefor shall Territory applicant have resided in the for two next Territory years preceding but this shall application, not affect provision action when this Act takes pending 30, 1900, effect.” Act of April § 141, 339, Stat. c. 55. Before Act, the enactment of the was no there Organic such in the Hawaiian law. The applicable statute the courts which merely designated were em- powered divorce and grant provided grounds § 1870, 16, divorce. c. 2. L.
The prescribed two Act years the Organic was reduced to one year the State after legislature Hawaii became a 1967, state by S.L.H. c. 2.
Hawaii is not alone in divorce to an denying applicant who has not been domiciled or not been physically present the state for a before prescribed period bringing the divorce action.
In the discussion below, the of domicile physical for a presence prescribed period state divorce statutes will be referred as residential re- for divorce. states had residential forty-one forty-eight for divorce in which the prescribed period was one or more. Handbook of National Conference Commissioners on Uniform State Laws and Proceedings *4 Conference In Fifty-Fourth 267. p. (1944), subsequent the trend has years been to reduce the prescribed period, but a of the states still of at majority residence require least one year.
306
Until
of residential
recently,
taken
were a
divorce was
for granted. There
practically
but
and almost per-
few
were
challenges,
they
consistently,
It is her in this case evident filed plaintiff complaint in the 394 U.S. decision light Shapiro Thompson, 618 (1969). Connecticut, held Pennsyl- that the statutes
Shapiro vania, and welfare the District Columbia which granted in the jurisdiction assistance who have resided persons more, such one but denied assistance persons who have not resided in violation for at least one were year, clause. equal protection court stated statutes effected so such holding, of indi- a which upon classification impinged right interstate; viduals to travel that the to travel inter- right that where a statute touches state is fundamental state right; must a fundamental “its right, constitutionality upon the stricter standard whether it judged by promotes interest”, rather than under the traditional state compelling standard which holds is denied protection equal if the classification is without reasonable basis. any statements, con- her on such plaintiff Basing position second sentence of 580-1 court that the tended the family without movement with her interfered interstate right and, interest, for that rea- promoting compelling clause. son, violated protection equal no for resorting court found necessity standard, the traditional It stated: “Even applying Shapiro. standard, the re- waiting period stricter and not the Shapiro clause.” protection violates clearly equal result the residential court reached that treating §of 580-1 as the second sentence posing courts, in the of access to of discrimination issue
307 of inter- rather than an issue of with the right interference travel.1 The decision no the lat- state contains discussion of ter right.
Inasmuch as the court based its on the family holding standard, traditional we will first consider the validity residential for under divorce that standard. requirement standard,
Under the traditional a statute does not deny “if of facts be protection state equal any reasonably may conceived to it.” McGowan 366 U.S. justify Maryland, v. 420, 426 Williams, v. 397 485 Dandridge (1961); (1970).2
It is Dutcher, stated in Dutcher v. 657 Wis. with to an Wisconsin (1876), regard early statute a imposing residential one-year for divorce: “The policy the statute in residence requiring year’s is obviously secure faith good in the residence parties coming without the state and here.” divorce applying
A similar statement is Rabel, made The Con- Ernest flict of Laws—A Comparative state- Study (1945). ment there is: “The minimum of ‘residence’ is understood generally to evince the mental required pur- which, pose, is put that of a real simply, establishing and permanent domicil.”
We think that the statements the real above quoted give basis for the prevalence in state laws. States, the United divorce is a matter within the con- question 1The court stated: “The case whether under deny
United States Constitution can to a resident the State access the courts year, adequate grounds of less than one who believes that she acquires year by waiting, until a total further she residence of one continuously Hawaii, residing in the State of when who has re the resident denied, relief, may go sided for over one is not so courts waiting, upon grounds for without further belief that there is sufficient divorce.” Williams, Dandridge 2In Mr. Marshall stated in dissent that the Justice holding “regardless hfi court’s that case meant that arbitrariness of goaj imagined it must be sustained if can that is classification arguably furthered effects.” its constitutional states, federal trol of the subject applicable control, it must But, for a state to exercise its limitations. when It has have the matter. jurisdiction over therein. is domiciled one of the to the action parties § 71 Restatement, Second, Conflict Laws (1971).
A in a state by being physi- establishes his domicile person indefi- intention of remaining there with the cally present no length stay For nitely. purpose, particular Anderson, Even a will suffice. Anderson necessary. day 261 (1948). Haw. *6 of an ex- Thus, that a it be may argued requirement means of assur- as a tended of residence improper the existence of domicile. ing in
However, think that are justified requir we the states domicile, such an of establishment of test objective ing as is in residential provided requirement of on that because of if the finding possibility perjury an interested issue is made dependent upon testimony Wheat, 793 842, 318 Wheat v. 299 Ark. S.W.2d party. 394; Lorenzen, Rabel, Extraterritorial Ernest G. (1958); supra, p. II, Divor 54 Yale North Carolina ce—Wi lliams v. 799, 801 (1945).3 L.J.
It ad- that, be stated in one justification Shapiro, vanced for in controversy residential that it an but the test provided objective residency, However, case, the in rejected justi- justification. as to fication was in connection with offered the question whether there was to warrant state interest any compelling not to show the existence requirement, 8,616 Lorenzen, supra: 3It is stated in divorces “It has been estimated that granted 11,399 majority great were Nevada 1942 by solely which must have been obtained nonresidents who went to Nevada purposes, only remaining required All while there six weeks. they contemplated returning immediately di to their home states after their secured, yet they falsely they vorces were all make swore intended to home, that, permanent having Nevada their been warned unless local counsel so, they they they did out of On took would be court. advice counsel also steps accepted by corroborating which would their the Nevada courts as sworn actually nothing camouflage.” statement but than sham and were more
309 facts which be conceived to re- reasonably might justify under the traditional standard.
We hold that the residential for divorce the second sentence 580-1 is not violation the equal protection clause under the traditional standard.
This us a consideration of the of resi- brings dential for divorce under the stricter standard mentioned The standard stricter Shapiro. applies situation a violation of fundamental involving right. fundamental claimed to be right violated here is the right individuals to travel interstate. of interstate travel was held to be right constitu- under decisions rendered before
tionally protected
Shapiro.
Nevada,
Crandall
In Williams v. it was held that (1900), tax statute Georgia imposing occupation upon persons laborers to work hiring state limits did not violate beyond The court stated: “If it can right. be said to affect * * * freedom of State, egress incidentally *7 and remotely.” U.S. (179 274).
The welfare statutes in considered contained Shapiro two residential One requirements. required applicants welfare assistance be from residents the jurisdiction which benefits were The other sought. required appli- cants be residents the jurisdiction for at one least year before for welfare applying validity assistance.
first was not issue in the the Only case. durational residential was in issue.
Durational residential do not interfere requirements with the directly interstate Their right travel. impact indirect, if the right, any, upon may they operate to deter some from individuals the exercising right. extended the accorded to the
Shapiro protection right travel to a situation indirect interstate involving impinge- ment of durational the deterrent effect resulting the court residential statutes. But welfare stated: no view of “We imply waiting-period vote, or residence requirements determining eligibility education, for tuition-free to obtain a license to eligibility re- fish, to hunt or and so Such practice profession, forth. state interests on the quirements may promote compelling hand, or, other, one not be may upon penalties travel.” exercise the constitutional interstate footnote (394 21).
So, re- does outlaw all durational residential Shapiro which con- Some be valid. The quirements may difficulty fronts us is that did criteria Shapiro provide and those which valid determining are requirements which are not. circumstance, hand we approach problem re- the factors in durational residential
by examining the welfare statutes considered Shapiro invalid, which induced the court declare the requirement them with factors residential require- comparing ment whether essential differ- for divorce see there are ences which render the latter valid. court stated Shapiro: from the that exclusion
“There is evidence weighty need or need relief who may poor * ** these specific objective provisions. one-year waiting period not doubt that the “We do of poor suited the influx discourage device well An who desires assistance. indigent in need of families resettle, a new life find a new start job, migrate, risk if he knows that he must will doubtless hesitate back falling move without possibility making first of resi- his during on state welfare assistance But most acute. dence, pur- his when need into persons migration by needy of inhibiting pose *8 state is 628- constitutionally (394 impermissible.” 629).
It from the statement that the follow- appears foregoing first, factors were the durational ing Shapiro: controlling to ex- residential was designed specifically requirement clude from indi- jurisdiction imposing requirement who needed have need for welfare as- gents might Second, sistance. the relief which the was requirement to withhold from the designed involved their need indigents for basic necessities of life which were immediate and could not be Third, postponed. efficacy require- ment its was accomplishing great. The accom- objective plishment was more objective than a possibility; was a if a near probability, This so was certainty. because the affected requirement immediate indigents’ livelihood. the factors mentioned above combined to Shapiro, im-
pinge the exercise upon to travel in- indigents terstate and in a real substantially sense.
In the case of residential we safely say exclusion a jurisdiction persons contemplating was its specific purpose. states enacted siich in an when travel was era difficult and was society less mobile than considerably to day. Court, District Worthington supra. require ment is concerned with domicile, the establishment of as stated earlier in this opinion.
Also, relief delayed by the does not have which is the case urgency present need indigents’ for necessities of life. Divorce can wait. It theoretically conceivable that abandon his estab- person may plan Worthington Court, pres 4In “[0]ur District the court stated: law in its * * * passed legislature ent form at the first session of territorial people here before there was railroad in modern means this state or transportation, require long when the laws some other did not states as residence, anticipation people and when there was no would come (37 235). purpose obtaining this state for divorces.” Nev. 142 Pac. *9 lish a home in another imme- state because he cannot get However, diate divorce there. does because divorce usually wait, not have and can we do that the not think immediacy in number of cases requirement operates any appreciable to deter other to establish persons into states moving their homes.
In our the residential opinion, probability requirement in- divorce to deter the exercise of the right operating terstate travel too render it invalid. remote is like in the the provision Georgia respect, Fears, statute which declared valid in Williams v. was on the interstate that affected supra, ground travel and remotely. only incidentally also, that,
We standard thus hold under the stricter residential divorce in second sentence §of 580-1 does clause. violate protection equal by advanced contentions
We have thus far discussed the
oral
and at the
court
at the
in the
hearing
plaintiff
oral
argument
in this
court.
argument
Subsequent
decided
United States
here,
Court
Supreme
In a
Connecticut,
supple-
Boddie was appeal F. in Connecticut, reported court federal district welfare case were The plaintiffs Supp. (1968). actions divorce their from having who were barred recipients courts having state Connecticut heard officers the court refusal of because of the over divorce the prepayment without for filing their complaints accept court costs. decision, court district
At the time entry the plain- statutes required 46-15 of the Connecticut section of three residence have continuous actions to tiffs state, in certain circumstanes.5 years specified except (cid:127) not an residential issue the case. held the denial access Court Supreme
courts for divorce to reason of to pay indigents by inability violated of the fourteenth court costs the due clause amendment. seen
In so stated that the states holding, have institution fit to oversee marriage many aspects because involves of basic interests “marriage importance indi- our without society”; judicial imprimatur, prior con- viduals and rescind enter into commercial may freely tracts, but covenant for or dissolve they may marriages without re- that even all substantive where approval; met, are two adults quirements concededly consenting *10 not divorce and themselves from legal liberate the mutually with and that obligations go fundamentally more marriage, the without the prohibition against remarriage, invoking state’s judicial a that “due machinery; process requires, minimum, that absent a of state interest countervailing forced overriding significance, persons to settle their claims and the must right judicial duty through process be heard”; a given to that meaningful and opportunity be “given basic of the position marriage relationship this society’s values and the concomitant state hierarchy of the monopolization means for rela- that dissolving legally a tionship, due does process prohibit denying, because of to solely access its to in- to courts inability pay, 5Boddie was commenced in the United States District of Connecticut Court time, Statutes, 46-15, March 1968. At that read: Connecticut General plaintiff continuously years “If the be has resided in this three next state complaint, fore the date of shall be dismissed of divorce unless cause subsequently state, has arisen to the removal into this defendent or unless the continuously years has resided in state of the three next before the date complaint upon him, plaintiff and been actual service made or unless instituting marriage was domiciled in this state at time of the and before complaint permanently returned to this state with the intention of remain ” * ** ing. by the residence was reduced to one Public Act 18. of their marriages.” dividuals who seek dissolution judicial 374, 376, (401 377.) as be of the court may paraphrased reasoning involves basic interests importance
follows: marriage aspects our states oversee society; many consequently, dis- divorce, or the is institution one aspect marriage; divorce, in connection with solution marriage relationship; substantive state has established certain requirements each substantive re- satisfaction of requires proof in a proceeding; be made court judicial quirements situation, a is obtainable through such where relief only denied, solely an judicial proceeding, indigent costs, he an is and cannot oppor- because poor pay to into court to that he has met get requi- tunity prove due site without substantive violating requirements, clause. process
Thus, constitutionality did not touch Boddie upon action substantive requirements with respect a ac- It with denial divorce. concerned because of an for divorce solely cess to court to applicant in the con- This the court his is emphasized indigency. as “In concluding of its follows: opinion cluding paragraph Amendment of the Fourteenth that the Due Process Clause be afforded these opportunity requires appellants into court to obtain we wish re-emphasize go case that we no further than necessary dispose go us, of both before a case the bona appellants’ where fides are here beyond dispute. desire indigency * * * resort these appellants Thus we state-created matter. judicial entirely *11 not, with hold that a State consistent the obliga- may of the Four- tions on it the Due Process Clause imposed by Amendment, this to dissolve teenth the right legal pre-empt all citizens to the access without affording relationship so.” means it for U.S. 382). has doing (401 prescribed for divorce the second The residential § access to courts to appli- of 580-1 does deny sentence
315 statutes, for divorce. to for cants Under our access courts § 580-1, the divorce is tbe first sentence governed by is not in con- which issue this it case although a tains durational com- residential Plaintiff requirement. with So, first plied sentence. she got court, into and the court heard her case. § di- second sentence 580-1 that “no provides * * *
vorce shall unless either granted” party has satisfied marriage the durational residential require- ment stated therein. It does that the court shall not* say a hear divorce case in which been has not the requirement met. second sen- plain meaning language §of 580-1 re-
tence satisfaction the residential is a condition to divorce granting court which has heard case, not a which condition a divorce of a forum in deprives which his case applicant be heard. This court held residential requirement in our Zum- statutes is jurisdictional. Zumwalt v. walt, West, Haw. West Haw. (1916); Anderson, Anderson v. (1940); The word “jurisdic- supra. tional”, connection, as used does not have reference case; to the of a court jurisdiction to hear and act a rather, it must refers which every have over the as a marriage relationship prerequisite its control over This exercising is evident from divorce. Zumwalt, statement in Zumwalt v. that “the supra, circuit was without judge decree authority grant the absence of of domicil for the proof necessary length time.” The statement is not that the circuit with- judge out to hear the authority case of the re- absence quired proof domicile. §
The second sentence of 580-1 is a sets which provision forth substantive divorce. respect, 580-41, is similar which sets forth grounds An divorce. for divorce who applicant fails to prove *12 of a for divorce will divorce because granted not ground failure to a for divorce. substantive satisfy requirement has been who fails to that he Similarly, prove applicant for domiciled or been in this State has present physically of one will be able to obtain a because divorce he failure to a not because substantive satisfy requirement, is denied access to court.
Thus, relevant the deter we do not think that Boddie is for mination of the residential § of divorce the second sentence 580-1.6 in recent this we In recognize opinion, concluding about has much more our become years society permissive successive reflected in than the This is the past.. divorce for enact- of uniform act recommended drafts the of National Conference the ment by legislatures by Commissioners Uniform State Laws. on of divorce the drafts based granting
The early mar- one of the of fault of parties traditional concept With residential requirement riage. respect draft. in the earliest was two years period prescribed then drafts, reduced to one year, the period subsequent six months. decree of divorce entry latest draft provides a been finds that the parties if: the court one “(1) services a armed State, or is member resident of this State, next days for 90 pre- in this who has been stationed the entry the commencement proceeding ceding that the decree”, marriage the court finds “(2) broken.” irretrievably (E.D. 1971), Syman, Wymelenberg Supp. a three- Wis. F. 6In two-year re
judge residential declared the federal district court Wisconsin 247.05(3) to be invalid of the Wisconsin statutes for divorce by protection Boddie, judged equal Shapiro clause under “whether ‘overriding significance’ ‘compelling clause interest’ test or the due applicability opinion, view of the test.” we take different is stated our As However, wording Shapiro be stated and Boddie. two-year possible residential that it is to construe the Wisconsin is such statute jurisdiction limiting refer the court and as therein as ring divorce. state over to the of divorce. Thus, draft no-fault concept projects case, However, the significance for the purpose residential the draft the retention of lies although pre- as a substantive requirement, divorce. has been ninety days preceding scribed reduced *13 the of or the entry commencement the proceeding decree. in more draft
The conference the approved August than after draft two one The year Shapiro. prepared law as in for the conference professors, reporters. Acting connection of was a commit- with the the draft preparation tee of law thirteen members —two four judges, professors, and seven The eminent practicing attorneys. reporters committee members deemed residential re- obviously valid, for divorce was quirement despite Shapiro.
We think do not of the length period prescribed of residence, whether it one is ma- year days, ninety terial to the of residential for divorce. validity If a of prescribed one discriminates period re- against cent residents, so does a ninety prescribed days. We think if of residential for conceded, divorce is the determination of length prescribed a period is matter within .entirely legislative discretion.7
Reversed. agree Court, following Worthington 7We with the statement District supra: “If, petitioner contends, provisions as United under the States Con- guaranteeing stitution and fourteenth amendment to the citizens of equal protection laws, various states our cannot discriminate statutes against desiring divorce, Legislature require per- nonresidents and our cannot coming they seeking year, sons to this state and divorce to reside here one required months, length time, cannot be to reside here nor for but six specified would be entitled maintain an action for divorce the causes laws, taking up under our without their residence here. “If, contrary universally recognized doctrine other states and foreign countries, states, obtaining civilized citizens of other a without domicile here, apply provisions were entitled to our courts under granting equal protection the federal Constitution citizens of other states laws, states, same condition would exist all the other for the federal T. Morton General King, Deputy Attorney (Bertram Kanbara, General, with him on Attorney brief) defendant intervenor-appellant. Johnston, Division, Chief,
Robert Gilbert Civil Levin, Counsel, Andrew Aid Society Associate Legal Hawaii, for plaintiff-appellee. LEVINSON,
DISSENTING OF OPINION J.
I dissent. § 580-1,1 I one-year that HRS which establishes a believe to the residence as jurisdictional prerequisite under is unconstitutional of an absolute granting for the following both the Federal and Constitutions two reasons: statute residents deprives (1) persons, de- than of due law by Hawaii for less one year, them forum access granting nying capable a disso- them and relief on their claimed hearing re- lution of residence their marriages. one-year (2) bears no to a reasonable relation legitimate *14 and thus an invidious discrim- works government purpose ination in of constitutional violation the guarantee every equally all, would applies to United States and citizen of the Constitution might most go any adjoining be a divorce or other state where be free to into action, any having easily domicile without residence or and start an obtained may required, necessarily Legislature must the state. If residence be that (37 240). 240, power period.” 142 Pac. to determine Nev. have the the provides: § 1HRS 580-1 annulment, original and of matters Exclusive subject venue, subject change separation, and 603-37 as to of to section judges law, upon judge according appeal or conferred to also or family applicant which the has been domiciled of the circuit in court present period months physically a continuous of at least three for has been preceding application the bond No divorce from next therefor. absolute any party granted matrimony either shall be for cause unless present for physically marriage been been domiciled or has has application preceding one next of at least a continuous base, military residing may person on federal who be therefor. A may present in the installation, State or who be within the or reservation meeting thereby prohibited military not orders shall State under requirements of this section.
319 I hold of the laws.2 Therefore that would equal protection this took case properly jurisdictioii the decree divorce should be affirmed. § I. LAW. HRS 580-1 DENIES THE APPELLEE PROCESS OF DUE A. to a on The Right Hearing Her Appellee’s Judicial
Marital Grievances.
this
in-
issue in
case touches
legislation
upon
stitution of
of the most fundamental
one
marriage,
human
U.S.
relationships.
Virginia,
v.
Loving
Oklahoma,
Skinner
(1967);
(1942).
New
as
to an
decisions are
or as
individ-
important,
personal
ual
Yet,
as
which
in marital
as
those
involve
status.
change
our
such
decisions
basic
are
society
presently organized,
sanction of the State for their
totally dependent
upon
legal
without
the law’s
significance;
indi-
imprimatur
viduals
covenant for or dissolve
validly
marriages.
Because
the State
chosen
monopolize
procedures
I
vital
believe that
legally affecting
personal right,
due
lawof
in the
a countervail-
process
absence of
prohibits,
state
ing
interest
restrictions
overriding significance,
access to these
This conclusion
procedures.
is supported by
a recent
decision,
United States
Court
Boddie
Supreme
Connecticut,
The Boddie which the is ir- majority opinion says relevant,3 involved issues to those directly analogous pres- equal I, protection guarantees 2The due found in are article section 4 the Hawaii Constitution and section 1 fourteenth amend ment to the United States Constitution. attempts majority distinguish 3The on the the Boddie basis case merely question Boddie involved the of denial of the of access to court of applicant solely indigency. majority argues for divorce because his upon constitutionality Boddie touch “did with action respect requirements divorce,” residency to the substantive and that 580-1, being for divorce the second sentence of HRS essen tially substantive, deny applicants Vapid does not access distinc divorce. *15 tions, however, cannot obscure the fact that the second sentence of HRS subject jurisdiction 580-1 limits the matter to those divorce proceedings parties physically in one of which the has been domiciled or case, statute this In that a Connecticut before court. ently as a condition the of certain fees required payment welfare an action divorce. The were bringing appellants who, fees, were unable their recipients pay precluded their actions in Connecticut courts. bringing over means Because of the judicial monopoly denial, noted, raised this Court impor- Supreme Connecticut, at tant due Boddie issues of v. supra process. 376-77: no
Resort these plaintiffs to the judicial process de- in a than that of the more realistic sense voluntary For defend his court. fendant called interests upon dis- both is not this process only paramount groups but, fact, available only pute-settlement technique, one. In think that we this posture appeal properly to be in our resolved in enunciated light principles due decisions that delimit defendants process rights compelled their differences in litigate judicial forum.
Due mandated that a “countervailing unless process established, State interest overriding significance” to be heard the State could deny upon indigents Boddie their claim for a dissolution of their marriages. Connecticut, at on to examine the 377. Court went supra advanced in fee re- Connecticut’s justifications support insufficient and concluded were they interest override the access to having appellants’ untenable avenue their dissolving allegedly open they of law therefore due marriages; required v. Con- divorce claims. their given hearing Boddie necticut, at 383. supra
I are believe that above principles dispositive Boddie, before this court. As issue appellee presently Thus, year. present ma for a least one Hawaii continuous distinguish Wymelenberg attempt Syman, jority fails its likewise (E.D. 1971), ground Supp. F. Wis. on the the Wisconsin statute limiting of the court. can be construed as *16 to free seeks access order herself judicial process to a dead Her freedom to re- the embrace marriage. a and and both funda- establish new home marry family, liberties, mental her is personal entirely dependent upon to a court her claim divorce. for ability hearing gain § HRS 580-1 and denies the such a thus appellee hearing curtails her essential human to these ability pursue rights. It is immaterial that this is on insuffi- predicated imposition is residence rather than funds. What is ciency important that at funda- issue affects the litigation (1) appellee’s mental and raise a rights access marry family (2) the judicial is the alternative securing those shown, Once rights. these elements are an issue due law process of arises and a denial of a judicial hearing may justified a state interest only by countervailing Connecticut, overriding v. significance. Boddie 377. supra is Finally, worth a United that three noting judge States district court Wisconsin the due applied pro- cess principles case to Boddie strike down Wiscon- sin two-year residency which restricted access to the State divorce F. Syman, courts. Wymelenberg Supp. decision, Wis. (E.D. 1971). Wymelenberg also supra, held that the Wisconsin must fail as an statute impermissible to deter an attempt exercise of indi- vidual’s constitutional travel interstate. Judge Rey- nolds, concluded, the court writing Wymelenberg Syman, at 1356: supra judged by Protection Clause “com- Equal
[WJhether interest” test or pelling the Due Process “over- Clause by , . . riding significance” test two-year waiting [the] an constitutes unconstitutional im- the Fourteenth Amendment of United pingement upon States Constitution. case, I the instant failed to believe Hawaii has
demonstrate a sufficient interest constitutionally justify 580-1. one-year restriction HRS residency imposed by 322. One-Year an State Interest in a
B. The Lack Overriding Residency Requirement.
The argument one-year residency requirement, it is discussed forth put although by appellant, the welfare the State’s interest in majority opinion, children, affected is compelling to afford the residency necessary information accurate opportunity gather on which to base a I that solic decision. While custody agree itude for the children’s interests should be paramount interest objective proceedings, *17 be used to due broadly rights infringe process alternatives exist persons divorces. Less restrictive seeking and, for the achievement of the State’s where objectives involved, fundamental under a are State is rights duty Connecticut, to supra these other devices. Boddie v. employ 381-82; 1355; at at Turner v. Syman, supra Wymelenberg v. Fouche, 346, 396 U.S. 364 (1970). mar- this has no children case by appellee she HRS she seeks to dissolve. Yet is by
riage imposed upon § to seek a 580-1 because all who provision applies judi- cial of their of whether regardless dissolution marriage, in the minor children are involved Clearly litigation. achieved less restric- State’s declared could be purpose by § means; have defined narrowly tive HRS 580-1 could been of the so as to divorces where only custody to those apply un- issue.4 to do has children was in so the State By failing of her constrained the the exercise necessarily appellee must fall. due and therefore the restriction rights been advanced the ma- State interest has by Another in an to limita- salvage residency opinion attempt jority § is contended one-year tion HRS 580-1. It has constitu- ensures that waiting period application imply all the con would solve narrow wish to that this 4I do not noted, subsequently residence restriction. As problems raised stitutional requirements satisfy reasonable classification fail to would still the statute equal protection clause.
323 valid this consideration tionally jurisdiction. my opinion is insufficient in hav- interest the appellee override her access to the ing dissolving avenue open untenable allegedly marriage.
The United stated consistently States Court Supreme over the status dependent marital is one of the domiciled within the state. Sherrer spouses being Sherrer, 343, v. 334 U.S. 349 Williams North v. (1948); Carolina, 226, Bell, 325 U.S. 229 Bell v. 181 (1945); 175, 177 As ac (1901). majority opinion recognizes, a new domicile there need be quire presence only physical in the new state and an Y intent to make it one’s home. amane 339, 340, Haw. 461 P.2d Piper, (1969). as, of actual residence immaterial so length long some point, coincides with physical presence an intention Anderson, establish a permanent abode. Anderson place 38 Haw. (1948); Restatement Conflict Thus, of HRS (1934). limitation residency Laws § 580-1 is not and cannot used jurisdictionally compelled to override the constitutional rights appellee. State denial of its access
Finally, justify the courts on the is a that the ground residency requirement device courts fraudulent al- necessary protect legations domicile. The has failed arty to make that the showing danger perjured greater testimony than in other which proceedings proceedings *18 is elicited Even from interested were testimony parties. made, such a to be as Court showing Supreme pointed in case, alternatives, out 381-82, other Boddie supra such affidavits, as to penalties false exist pleadings achieve this These devices serve State’s interests goal. without infringing upon constitutionally protected rights persons marital seeking dissolution relationship. The State an irrebuttable may impose presumption residence or domicile under against circumstances which they fact exist to achieve ad- the “remote merely ministrative benefit” of a facile measure their providing 324 89, Rash, 380 96 U.S. (1965).
existence. See Carrington v. is clear that the State Based on the foregoing analysis failed sufficient countervailing justifications to advance § and, HRS 580-1 restrictions residency imposed by therefore, I of law would hold that due requires her heard on to be appellee granted opportunity of her claimed to a dissolution marriage. right PROTECTION § THE APPELEE THE II. 580-1 DENIES EQUAL HRS THE LAWS OF re- residency concludes that The majority opinion § not infringe upon 580-1 does HRS imposed by travel of interstate right the constitutionally protected in- demonstrate a compelling thus the State need not I disagree. to sustain the statute. terest order our to is a right to travel from state hasic freedom are in- federal Durational residency system. requirements interstate this They impede right.5 destructive herently to the foster attitudes antagonistic mobility parochial in the I concur For these reasons federalism. concept v. in Oregon Mr. Brennan view expressed by Justice Mitchell, 112, 400 238 (1970): durational residence of a definition, the imposition
By and only those persons, operates penalize their constitutional who have exercised those persons, case, such a . . . migration. interstate right [I]n constitutional withstand action may governmental precludes the majority can wait” “divorce claims that the fact that 5The right travel unduly the fundamental 580-1 burdens conclusion that HRS true, argued durational that a it could be If were interstate. fortiori chill voting likewise not residency requirement elections would local as to three-judge fed travel. Yet several of the constitutional the exercise 380, Canniffe, Supp. contrary. Burg F. 315 v. eral courts have found 1970). (D. (D. Davis, Supp. 1970); Vt. F. 251 Kohn v. Mass. (D. 1970), Supp. said Donovan, the court Keppel Minn. F. “[ajdmittedly penalty instant case although that attaches were Shapiro Thompson, of life where the necessities less severe than reasoning in the decision denied,” there buttresses our “the Court’s nonetheless case.” instant
325 im- burden a clear that the showing scrutiny only upon substan- is compelling posed necessary protect tial interest. governmental case, show that the has failed to the instant State state interest. serves a
residency compelling requirement violates clearly Therefore the waiting-period requirement however, not, This conclusion is clause. equal protection com- satisfy on the State’s failure dependent solely Even less interest test. under stringent state pelling standard of a rational relation to purpose legitimate restriction must fail. residency does The of the of the laws guarantee equal protection State from its inhabitants prohibit classifying order to ends. it does achieve What legitimate legislative its mandate, however, shall exercise is that government aof The classification categorization powers arbitrarily. aas must be reason subject particular group regulation able relation to the Rinaldi purpose legislation. 305, 384 Pine v. Maui Yeager, (1966); Hasegawa Co., 327, 329, Haw. 475 P.2d apple (1970). This reasonableness violated when State burdens who stand in no rational re imposes (1) persons object regulation, lationship (2) penalizes a few while others situated Ri are similarly exempted. 309-10; naldi v. at Maui Yeager, supra Hasegawa Pineap Co., 332-33; Note, ple see supra Developments Equal— Protection, 82 Harv. one- L. Rev. 1084-87 (1969). instant case violates both of these principles. noted,
As previously argues the purpose afford one-year information on which to base a cus- opportunity gather decision. Given this tody then the classifica- goal residency tion is unreasonable burdens since clearly unavoidably divorce claimants who are residen- many Imposing childless. on these bears no cy relation to the requirements people Thus, advanced purposes distinction by State. the class §HRS 580-1 is imposed unconstitutionally arbitrary. HRS 580-1 is also unrea- one-year requirement *20 sonable its stated legis- because in purpose achieving lature has failed to burden all who are similarly those situated with decisions the law. Custody respect object arise not actions but also in divorce only separation § 580-1 annulment HRS Yet HRS proceedings. 571-46. fastens a durational a single one-year residency only class of marital The custody prohlem gathering actions. information in can be no and annulment cases separation actions, less how- than in divorce actions. These compelling ever, a three-month pro- require only residency. equal tection clause does not permit burden few when others situated are similarly exempted.
Thus, even the traditional tests equal protection under classification of whether according applicants have I lived in the State for one they irrational. would hold works therefore the one-year requirement class invidious discrimination. unconstitutionally decree of divorce should be affirmed.
DISSENTING OPINION OF CIRCUIT LUM JUDGE I dissent, . concur in I but wish add I do all believe durational are facto residency requirements ipso unconstitutional.