Whitehead v. Whitehead

• Citation: 492 P.2d 939,53 Haw. 302
• Decision Date: 19 January 1972
• Docket Number: No. 4996,4996
• Parties: Sharon Ann WHITEHEAD, Plaintiff-Appellee, v. John Jay WHITEHEAD, Defendant, and State of Hawaii, Defendant Intervenor-Appellant.
• Court: Supreme Court of Hawai'i

Page 939

492 P.2d 939

53 Haw. 302

Sharon Ann WHITEHEAD, Plaintiff-Appellee, v. John Jay WHITEHEAD, Defendant and State of Hawaii, Defendant Intervenor-Appellant.

No. 4996.

Supreme Court of Hawai'i.

Jan. 19, 1972.

Syllabus by the Court

1. Under the traditional standard of judging the constitutionality of a statute, equal protection is not denied if any state of facts reasonably may be conceived to justify it.

2. The policy of a statute in requiring a prescribed period of residence is to secure good faith in the residence of parties coming from without the state and applying for divorce in the state.

3. A state has urisdiction over divorce when one of the parties is domiciled therein.

4. A state is justified in requiring an objective test of establishment of domicile, such as is provided in residential requirement, because of the possibility of perjury if the finding on the issue is made dependent on testimony of interested party.

5. Residential requirement for divorce in the second sentence of HRS § 580-1 does not violate the equal protection clause under the traditional standard.

6. Where a statute impinges upon a fundamental right, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest.

7. Residential requirement for divorce in the second sentence of HRS § 580-1 does not violate the equal protection clause under the stricter standard.

8. The second sentence of HRS § 580-1 does not deny access to courts to applicants for divorce. It sets forth a substantive requirement for divorce similar to grounds for divorce in § 580-41, which must be established by applicant in order to obtain a divorce.

Morton King, Deputy Atty. Gen., Hawaii, Honolulu (Bertram T. Kanbara, Atty. Gen., with him on the brief), for defendant intervenor-appellant.

Robert Gilbert Johnston, Chief, Civ. Div., Legal Aid Society of Hawaii, Honolulu, Andrew Levin, Associate Counsel, Legal Aid Society of Hawaii, Hilo, for plaintiff-appellee.

Before RICHARDSON, C. J., MARUMOTO, ABE and LEVINSON, JJ., and Circuit Judge LUM in place of KOBAYASHI, J., disqualified.

MARUMOTO, Justice.

In this opinion, Sharon Ann Whitehead, plaintiff-appellee, will be referred to as plaintiff; John Jay Whitehead, defendant, as defendant; and the State of Hawaii, intervenor-appellant, as the State.

On October 21, 1969, plaintiff filed a complaint for divorce against defendant in the family court of the third circuit on the ground of grievous mental suffering inflicted upon her for more than 60 days. Defendant was served by registered mail at Bluebell, Utah, but did not answer.

By stipulation, the State was allowed to intervene. It filed an answer alleging that the court had no jurisdiction because plaintiff did not aver that she had resided in Hawaii for a continuous period of one year before the filing of her complaint. The averment of jurisdiction in the complaint was that plaintiff had been domiciled or had been physically present in the circuit for a continuous period of at least three months before its filing.

At the hearing in the family court, plaintiff testified that she came to Hilo on July 20, 1969, with the intention of remaining in Hawaii indefinitely. Previously, she had resided in Utah. She also established to the satisfaction of the court her allegation of grievous mental suffering.

The court denied the State's claim of lack of jurisdiction, and entered a decree of divorce as prayed for by plaintiff.

The State has appealed from the denial. The sole question for decision on the appeal is the validity of the durational requirement of domicile or physical presence for one year in the State contained in HRS § 580-1.

HRS § 580-1, in its entirety, reads as follows:

' § 580-1. Jurisdiction; hearing. Exclusive original jurisdiction in matters of annulment, divorce, and separation, subject to section 603-37 as to change of venue, and subject also to appeal according to law, is conferred upon the judge or judges of the family court of the circuit in which the applicant has been domiciled or has been physically present for a continuous period of at least three months next preceding the application therefor. No absolute divorce from the bond of matrimony shall be granted for any cause unless either party to the marriage has been domiciled or has been physically present in the State for a continuous period of at least one year next preceding the application therefor. A person who may be residing on any military or federal base, installation, or reservation within the State or who may be present in the State under military orders shall not thereby the prohibited from meeting the requirements of this section.'

The court denied the State's claim upon a holding that the second sentence of § 580-1 violates the equal protection clause of the fourteenth amendment of the United States Constitution.

The holding is based on the following reasoning: the durational requirement in the second sentence of § 580-1 operates to create two classes of divorce applicants; one class consists of applicants who have been domiciled or have been physically present in the State for one year or more; the other class consists of applicants who have been domiciled or have been physically present in the State for less than one year; applicants in the former class are eligible for divorce; applicants in the latter class are not; such classification has no reasonable relation to any legitimate governmental objective; the classification, consequently, invidiously discriminates against divorce applicants in the latter class in violation of the equal protection clause.

It will be noticed that the first sentence of § 580-1 contains a durational requirement involving domicile or physical presence in a circuit. That validity of the cerned with venue. The validity of the durational requirement therein is not in issue in this case.

The second sentence of § 580-1 is derived from § 55 of the Organic Act, which provided: 'No divorce shall be granted by the legislature, nor shall any divorce be granted by the courts of the Territory unless the applicant therefor shall have resided in the Territory for two years next preceding the application, but this provision shall not affect any action pending when this Act takes effect.' Act of April 30, 1900, 31 Stat. 141, c. 339 § 55.

Before the enactment of the Organic Act, there was no such requirement in the Hawaiian law. The applicable statute merely designated the courts which were empowered to grant divorce and provided the grounds for divorce. L.1870, c. 16, § 2.

The prescribed period of two years in the Organic Act was reduced to one year by the State legislature after Hawaii became a state by S.L.H.1967, c. 76, § 2.

Hawaii is not alone in denying divorce to an applicant who has not been domiciled or has not been physically present in the state for a rpescribed period before bringing the divorce action.

In the discussion below, the requirement of domicile or physical presence in the state for a prescribed period in state divorce statutes will be referred to as residential requirement for divorce.

In 1944, forty-one of the forty-eight states had residential requirement for divorce in which the prescribed period was one year or more. Handbook of National Conference of Commissioners on Uniform State Laws and Proceedings of the Fifty-Fourth Conference (1944) p. 267. In subsequent years the trend has been to reduce the prescribed period, but a majority of the states still require residence of at least one year.

Until recently, the validity of residential requirement for divorce was taken practically for granted. There were a few challenges, but they were consistently, and almost perfunctorily, rejected. Pugh v. Pugh, 25 S.D. 7, 124 N.W. 959 (1910); Worthington v. District Court, 37 Nev. 212, 142 P. 230 (1914); Hensley v. Hensley, 286 Ky. 378, 151 S.W.2d 69 (1941).

It is evident that plaintiff filed her complaint in this case in the light of the decision in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

Shapiro held that the statutes of Connecticut, Pennsylvania, and the District of Columbia which granted welfare assistance to persons who have resided in the jurisdiction for one year on more, but denied such assistance to persons who have not resided for at least one year, were in violation of the equal protection clause.

In so holding, the court stated that such statutes effected a classification which impinged upon the right of individuals to travel intereste; that the right to travel interstate is a fundamental right; that where a state statute touches upon a fundamental right, 'its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest', rather than under the traditional standard which holds that equal protection is denied only if the classification is without any reasonable basis.

Basing her position on such statements, plaintiff contended in the family court that the second sentence of § 580-1 interfered with her right to interstate movement without promoting any compelling state interest, and, for that reason, violated the equal protection clause.

The family court found no necessity for resorting to Shapiro. It stated: 'Even applying the traditional standard, and not the stricter Shapiro standard, the waiting period requirement clearly violates the equal protection clause.'

The court reached that result by treating the residential requirement in the second sentence of § 580-1 as posing an issue of discrimination in the right of access to courts, rather than an issue of interference with the right of interstate travel. ¹ The decision contains no discussion of the latter right.

Inasmuch as the family court based its holding on the traditional standard, we will first consider the validity or residential requirement for divorce under that standard.

Under the traditional standard, a...