Place v. Place

• Citation: 129 Vt. 326,278 A.2d 710
• Decision Date: 01 June 1971
• Docket Number: No. 135-70,135-70
• Court: United States State Supreme Court of Vermont
• Parties: Mary Elizabeth PLACE b/n/f Gertrude M. Piluski v. David Wesley PLACE.

Page 710

278 A.2d 710

129 Vt. 326

Mary Elizabeth PLACE b/n/f Gertrude M. Piluski v. David Wesley PLACE.

No. 135-70.

Supreme Court of Vermont.

June 1, 1971.

Vermont Legal Aid, Inc., John A. Dooley, III., Burlington, for plaintiff.

James M. Jeffords, Atty. Gen., and Martin K. Miller, Asst. Atty. Gen., for the State.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

BARNEY, Justice.

On its face the libel for divorce showed that the libellant had been a resident of Vermont for about three months at the time the action was brought. 15 V.S.A. § 592 required that a libellant be a resident for six months before a libel could be brought. The libellee moved to dismiss on that ground below, and the motion was granted. However, and the motion was enter a judgment of dismissal based on its ruling, but certified the question here prior to judgment, and issued a temporary order providing for support of the libellant, and support and custody of the minor child. The question certified is:

Whether 15 V.S.A. section 592 requiring six months residency prior to filing a divorce libel denies the Libellant due process and equal protection of the law as guaranteed by the Fourteenth Amendment of the United States Constitution.

The state, through the attorney general, as amicus curiae, has undertaken the response to this question. First, it contends, since her residency would now permit the libellant to file a libel in conformity with the statute, the constitutional issue has been mooted. Furthermore, the state questions the appropriateness of the constitutional issue underlying Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, as applied to divorce matters.

The problem of 'mootness' always seems to center on its applicability to the case at hand. The Supreme Court of the United States recently wrestled with it in Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214, resulting in a divided court. In the case before us, the problems of recapturing jurisdiction by new service of process, with possible loss of remedy, at least make 'mootness' questionable, particularly in view of the fact that the libel has not yet been dismissed. There is enough reality remaining in the controversy to permit us to reach the certified question.

We are mindful of the stricture that constitutional questions ought not to be unnecessarily dealt with. State v. Laplaca, 126 Vt. 171, 176, 224 A.2d 911. It of course impinges more rigorously where the constitutional issue acts to invalidate existing law or practice than where it does not. In this case, reaching the constitutional question is therefore the more easily justified, since it is the view of the Court that existing law is not invalidated.

The case of Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, deals with preliminary waiting period or residence requirements for otherwise eligible welfare recipients newly moved to a state. Such requirements are held to be unconstitutional under the Equal Protection Clause unless they promote a compelling state interest. The particular right held to be infringed by the residency requirement is the 'right of free interstate travel', a right not...