Wymelenberg v. SymanWymelenberg v. Syman
- Reporters:
- ,
- Before:
- Reynolds
This is an action challenging the constitutionality of Wisconsin Statute § 247.05(3)
1
which requires that before an action for divorce may be commenced, one of the parties must be “a bona fide resident of this state for at least 2 years.” Jurisdiction is established under Title
Based on the complaint, affidavits on file, and representations of counsel, it appears that plaintiff is a member of a class composed of bona fide residents of Wisconsin who meet all standards of eligibility for commencing a divorce action except that they have not been residents of the State of Wisconsin for at least two years immediately prior to the commencement of an action to seek a divorce. The defendant is the Family Court Commissioner for Milwaukee County and by law is obligated to advise the trial court as to the merits of the action in a divorce proceeding.
Plaintiff has challenged the two year waiting period 2 requirement of § 247.05(3) as violative of the equal protection and due process clauses of the Fourteenth Amendment. It is our opinion that this argument must prevail and that the motion to dismiss be denied.
The Supreme Court has recently stated that “marriage involves interests of basic importance in our society,” Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971), and is a “fundamental human relationship,”
id.
at 383, 91 S.Ct. 780, which represents one of the “basic civil rights of man,” Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Thus, when the state, exercising its established prerogative of overseeing this most important social institution, chooses to limit access to the courts in this-area to only one segment of its citizenry, the court is duty bound to carefully weigh the rationales for such limitations and to investigate whether adequate alternatives are available either to the state or to its citizens.
Boddie,
supra. In the case at hand, Wisconsin by legislation has granted access to its divorce courts to “bona fide residents” who have lived in the state for at least two years
Barred from divorce, Wisconsin citizens, such as the plaintiff, have only two possible options open to them — either an annulment or a legal separation.
Four state interests are suggested by the lengthy two year waiting period. They are: (1) to deter those with marital problems from entering the state, (2) to maintain marital stability, (3) to assure residence, and (4) to protect the state’s reputation. Each interest will be considered.
(1) As a means to deter individuals or families with marital problems from entering the state, the instant statute must clearly fail as it is impermissible for a state to attempt to chill an individual’s constitutional right to travel to and settle in the state of his choice. Shapiro, supra; Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941); United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).
(2) While a state may attempt to maintain marital stability among its citizens, “this logic would also require a similar waiting period for long-term residents of the State.” Shapiro, supra, 394 U.S. at 637, 89 S.Ct. at 1333. Thus, while this rationale might provide a sound basis for a waiting period running from the date of marriage to the commencement of a divorce action, it cannot provide a rational basis for imposing a two year waiting period on new residents only.
(3) Like the majority of sister states, Wisconsin requires both the establishment of a domicile and the fulfillment of a waiting period before divorce jurisdiction attaches, and in Wisconsin each criteria is separate and distinct from the other. Dutcher v. Dutcher, 39 Wis. 651 (1876); Lucas v. Lucas, 251 Wis. 129, 28 N.W.2d 337 (1947); Strandberg v. Strandberg, 27 Wis.2d 559, 135 N.W.2d 241 (1965); cf.
(4) Finally, defendant argues that if the two year waiting period is
In that
It is therefore ordered that defendant’s motion to dismiss be and it hereby is denied, and unless the defendant files an answer raising issues of fact within ten days, judgment will be entered declaring
Notes
. “Actions by or ayainst residents for divorce. Regardless of where the cause of action arose, an action for divorce by or against a person who lias been a bona fide resident of this state for at least 2 years next preceding the commencement of the action shall be commenced in the county of this state in which at least one of the parties has been a bona fide resident for not less than 30 days next preceding the commencement of the action.”
. Only the two year waiting period contained in
. Compare
. See Restatement (Second), Conflict of Laws, pp. 103-6 (Proposed Official Draft, Part I, Hay 2, 1967) for a discussion of evidence and domicile.
. A domicile is established by physical presence in the state with an intent to make it one’s home. Wh^n an individual moves into a new state, the burden of proof is upon him to show that a new domicile has been established. Such proof consists of evidence of participation in the new community which is indicative of a member of the community as opposed to merely a visitor of the community. See generally Restatement, supra n. 4, at §§ 11-23.
. Normally a state, in order to demonstrate compliance with the equal protection mandate of the Constitution, need only show that the classification bears a reasonable relationship to a permissible state objective. However, when a classification penalizes the exercise of a fundamental right, the state must demonstrate a “compelling interest.” In the instant case, alternatively, the fundamental right of “access to the divorce court,” Boddie, supra, is being penalized by a two year bar upon new residents, or the fundamental right to “travel,” Shapiro, supra, is being penalized by the denial to new residents of access to the divorce courts.
. The state “absent a countervailing state interest of overriding significance” * * “may not, consistent with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, pre-empt the right to dissolve * * * [the marital bonds] without affording all citizens access to the means it has prescribed for doing so.” Boddie, supra, 401 U.S. at 377, 383, 91 S.Ct. at 789.