Alton v. Alton, Civil No. 145 - 1953

• Decision Date: 13 June 1953
• Docket Number: Civil No. 145 - 1953
• Citation: 2 V.I. 282
• Parties: SONIA HERRUP ALTON, Plaintiff v. DAVID ELIE ALTON, Defendant
• Court: U.S. District Court — Virgin Islands

2 V.I. 282

SONIA HERRUP ALTON, Plaintiff v. DAVID ELIE ALTON, Defendant

Civil No. 145 - 1953

District Court of the Virgin Islands Div. of St. Thomas and St. John at Charlotte Amalie

June 13, 1953^*

See, also, 121 F. Supp. 878

Action for divorce where plaintiff wife moved for an order confirming recommendation of District Court Commissioner that divorce be granted. The District Court, Moore, J., held that statute of Virgin Islands providing that six weeks' residence created prima facie evidence of domicile conferring jurisdiction on court to grant divorce was insufficient to establish domicile and give court jurisdiction. The motion was denied.

Order in accordance with opinion.DUDLEY, HOFFMAN AND MCGOWAN (GEORGE H. T. DUDLEY, St. Thomas, Virgin Islands, of counsel) for plaintiff

MAAS AND BAILEY (DAVID E. MAAS, St. Thomas, Virgin Islands, of counsel), for defendant

MOORE, Judge

This matter came on to be heard on a motion by the plaintiff for order confirming the recommendation of the District Court Commissioner that a divorce be granted.

Plaintiff's case was heard before the commissioner in accordance with the provisions of Title I, ch. I, sec. 6, as amended, of the Code of Laws of the Municipality of Saint Thomas and Saint John (1921 Code; 4 V.I.C. § 36). Plaintiff testified that she took up residence more than six weeks prior to the commencement of her action for divorce and that during that time she never left the jurisdiction and,therefore, claims that having complied with the jurisdictional requirements of section 9 (a) of the Divorce Law of the Virgin Islands (Dec. 29, 1944, Bill No. 14, as added by section 1 of) Bill No. 55 of 1953 (Act of May 29, 1953; 16 V.I.C. § 106 note), the Court has jurisdiction of her suit and she is entitled to a decree of divorce.

At the outset, it might be stated that the Court is of the opinion that a case of incompatibility has been made out by the plaintiff and that the only question to be determined is whether the new jurisdictional section of the divorce law, under which this case is brought, is legally sufficient to establish domicile and, therefore, to give jurisdiction of this matter to this court.

Under the Divorce Law of the Virgin Islands, before amendment, the jurisdiction of the court was set forth in sections 8 and 9, Bill No. 14 of 1944 (Act of Dec. 29, 1944; 16 V.I.C. §§ 105, 106) which sections read as follows:

"Section 8. When a marriage has been solemnized in the district an action may be maintained to declare it void if the plaintiff is an inhabitant of the district at the commencement of the action. If the marriage has not been solemnized in the district, such action can only be maintained when the plaintiff has been an inhabitant thereof for six weeks prior to the commencement of the action.

"Section 9. In an action for the dissolution of the marriage contract or for a legal separation the plaintiff therein must be an inhabitant of the district at the commencement of the action and for six weeks prior thereto, which residence shall be sufficient to give the Court jurisdiction without regard to the place where the marriage was solemnized or the cause of action arose."

The new section, 9 (a)^** is by way of an addition to the above sections, which remain as quoted. The new section provides as follows:

Section 9 (a). "Notwithstanding the provisions of sections 8 and 9 hereof, if the plaintiff is within the district at the time of the filing of the complaint and has been continuously for six weeks immediately prior thereto, this shall be prima facie evidence of domicile, and where the defendant has been personally served within the district or enters a general appearance in the action, then the Court shall have jurisdiction of the action and of the parties thereto without further reference to domicile or to the place where the marriage was solemnized or the cause of action arose."

It is under this new provision that plaintiff claims the Court has jurisdiction of the suit at bar.

Prior to the enactment of this new section 9 (a), section 9, above, was interpreted by the United States Court of Appeals, Third Circuit, in the case of Burch v. Burch, 2 . V.I. 559, 195 F.2d 799, 804, in the following manner:

"At the outset we are confronted with a question of jurisdiction. Under our system of law, judicial power to grant a divorce is founded on domicile. Williams v. North Carolina, 1945, 325 U.S. 226, 229, 65 S. Ct. 1092, 89 L. Ed. 1577. Accordingly the domicile of at least one of the spouses must be within a state or territory in order to give the courts of that state or territory power to dissolve the marriage. Section 9 of the Divorce Law of the Virgin Islands provides that the plaintiff in an action for the dissolution of marriage 'must be an inhabitant of the district at the commencement of the action and for six weeks prior thereto, which residence shall be sufficient to give the Court jurisdiction'. In the light of the rule of law to which we have referred the words 'inhabitant' and 'residence' as used in the statute must be taken to mean 'domiciliary' and 'domicile' respectively. It follows that in order to support a decree for divorce in the Virgin Islands there must be a finding by the District Court that the plaintiff was domiciled in the Virgin Islands at the commencement of the action and for six weeks prior thereto. Domicile is a familiar concept in the law upon which we think it unnecessary to elaborate other than to point out that it involves the idea of a residence sufficiently permanent that its termination is not presently contemplated. Jurisdiction to decree a divorce is not conferred upon the court by a mere temporaryresidence in the district which is accompanied by a present intention on the part of the plaintiff to leave the Islands as soon as a divorce is granted."

[1] We might say at the outset that it has been strongly argued that this statement of the Court of Appeals is dicta; that there was no question of jurisdiction raised in the case; that the plaintiff in this case was clearly domiciled in the Virgin Islands; that the Court of Appeals concluded that the District Court had jurisdiction to entertain the suit and this was not a ruling upon any issue in that suit. This court, however, is of the opposite opinion, to wit: that the question of jurisdiction is an issue to be settled first and may be raised by the court itself, even if not raised by either party. Furthermore, that in settling that question the court first laid down the rule governing jurisdiction, then applied the facts of the case to that rule in order to determine whether it did or did not have such jurisdiction; that its determination of that question by the rule thus enunciated is the ruling on the issue of jurisdiction and, therefore, not dicta. In addition, since the Court of Appeals said that "at the outset we are confronted with a question of jurisdiction", certainly the district court cannot rule that its appellate court was not so confronted.

Now, we turn to the question of the validity of section 9 (a). Since this new section is a jurisdictional statute purporting to confer jurisdiction under certain circumstances, it is necessary for us to determine whether it does confer the jurisdiction intended.

[2, 3] First. It is contended, in the first place, that this new section is a procedural statute establishing what evidence shall constitute prima facie proof of domicile in certain circumstances and does not change the basis of jurisdiction or in any way eliminate the concept of domicile. It is admittedly within the competence of the legislature to change or modify rules of evidence or pro-cedure. The question here is whether the modification in the new law sufficiently complies with the idea of domicile itself. Since "domicile" is such a familiar and well defined concept, this court doubts whether the standard fixed by the legislature is sufficient to constitute "prima facie evidence" of such domicile. In Burch v. Burch, supra, the court said of domicile that "It involves the idea of a residence sufficiently permanent that its termination is not presently contemplated." The act, which the statute makes prima facie evidence of that intention, does not in itself indicate whether the intention does exist or does not exist, for the stay during the statutory period may be with the intention of continuing to remain in the Virgin Islands after the divorce is granted or of leaving thereafter. One may be inferred from the act as well as the other. However, the fact that the defendant is required to have notice of the same either by personal service within the jurisdiction or by appearance in the action and that the defendant does not contest it, having opportunity to do so, may add to the weight given it by the legislature as prima facie evidence of an intention to reside on the part of the plaintiff.

If the procedure fixed by the legislature is sufficient, the statute would be valid for it would then be in conformity with all of the recent decisions of the Supreme Court upholding divorce decrees where there was a requirement of domicile of the plaintiff and the court had jurisdiction of the parties to the action. It is solely because of the Court's doubt of the sufficiency of that as prima facie evidence that it cannot hold it to be a valid statute giving the jurisdiction intended.

Second. Notwithstanding the above, it has been argued that this court has no power to question the judgment of the legislature in setting the rule for prima facie evidence of domicile which it has fixed, any more than it has au-thority to question the wisdom or the lack of wisdom of the policy of any piece of legislation. It is contended that the legislature of the Virgin Islands has the power to fix the basis or measure of jurisdiction in any particular type of action; that section 9A is just such an exercise of that authority, since that section merely prescribes the facts which shall constitute...