Andrews v. Andrews
| Decision Date | 16 May 1900 |
| Citation | 176 Mass. 92,57 N.E. 333 |
| Parties | ANDREWS v. ANDREWS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Alfred Hemenway and Frank D. Allen, for appellant.
C. W Bartlett, E. R. Anderson, E. B. Hale, and Jabez Fox, for appellee.
This is an appeal from a decree of the probate court appointing Annie Andrews administratrix of the estate of Charles S. Andrews. The appellant is the first wife of the deceased. The appellee married him later, in good faith, after he had obtained a decree of divorce in South Dakota. The questions are whether the divorce is valid in this state, or whether, if it is invalid, the appellant, on the ground of connivance and acquiescence, is estopped to deny its validity. Charles S Andrews went to South Dakota for the purpose of getting the divorce, and intended to return to Massachusetts as soon as he had done so. Subject to this intention, it is found that he intended to become a resident of South Dakota for the purpose of getting a divorce, and to do all that was needful to make him such a resident. The statute of South Dakota forbids a divorce 'unless the plaintiff has in good faith been a resident of the territory ninety days next preceding the commencement of the action.' Comp. Laws Dak. § 2578; Laws S.D. 1890, c. 105, § 1. Andrews lived in South Dakota 90 days, and the Dakota court found in favor of its own jurisdiction, substantially in the words of the section just quoted, and granted the divorce for a cause which would not authorize a divorce by the laws of this commonwealth.
The consensus of English-speaking courts founds jurisdiction of divorce on domicile. It may be that a state might substitute for domicile by statute, if it choose, simple bodily presence within its borders for a certain number of days. It may be (at least, under the constitution of the United States) that a divorce granted under such a statute between parties, both of whom were before the court, would be entitled to respect here, notwithstanding Pub. St. c. 146, § 41. But compare People v. Dawell, 25 Mich. 247, 264; Dolphin v. Robins, 7 H. L. Cas. 390, 414. But no such question arises in this case, because the language of the South Dakota statute must be taken to require, not merely bodily presence, but domicile. In the light of the decisions upon similar acts, and the generally accepted rule making domicile the foundation, the words 'resident of the territory' mean domiciled in the territory, whether they also mean personally present or not. Graham v. Graham (N. D.) 81 N.W. 44; Dickinson v. Dickinson, 167 Mass. 474, 475, 45 N.E. 1091; Reed v. Reed, 52 Mich. 117, 122, 17 N.W. 720; Leith v. Leith, 39 N.H. 20, 41; Van Fossen v. State, 37 Ohio St. 317, 319.
The finding of the single justice clearly means that the deceased did not get a domicile in South Dakota. He meant to stay there 90 days, and such further time, perhaps, as was necessary to get his divorce, and then he meant to come back to Massachusetts. It is true that he meant to do all that was needful to get a divorce, but he meant it because he was mistaken as to what was needful. In other words, he meant only to do what he supposed to be needful, and that was not enough. Whether, if he had known what was needful, he would have meant that and would have done it, is a speculation. In fact, he did not mean or do it, on the facts so far stated. It is clear that the finding of the South Dakota court in favor of its own jurisdiction upon an ex parte hearing would not be conclusive, but that the facts would be open to examination here. Adams v. Adams, 154 Mass. 290, 294, 28 N.E. 260, 13 L. R. A. 275, and cases cited. Inhabitants of Hanover v. Turner, 14 Mass. 227, 230, 231; Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897; Hoffman v. Hoffman, 46 N.Y. 30; Gregory v. Gregory, 78 Me. 187, 3 A. 280; Watkins v. Watkins, 125 Ind. 163, 25 N.E. 175.
But the appellant appeared in the divorce suit and denied the alleged residence of the deceased, although afterwards, upon receiving a certain sum of money, she directed her counsel to withdraw. There is a plain difference between a case in which a respondent has not submitted herself to the power of the court, and one in which she has done so. In the former, a foreign state within whose territory she is domiciled may decline to allow her rights to be affected by the decree, whatever the record may allege. In the latter, there is stronger ground for saying that if the libel alleges residence, and any other facts necessary to give jurisdiction, the libelee no more can dispute the validity of the decree on the ground that the court was mistaken as to residence, than she could upon the ground that it went wrong on the merits. Notwithstanding the language of some decisions which do not distinguish in terms between judgments where there has been no service and those where there has been an appearance (Sewall v. Sewall, 122 Mass. 156, 161), the decisions in some states where the question has been raised is in favor of the distinction (Kinnier v. Kinnier, 45 N.Y. 535, 540, 541; Cross v. Cross, 108 N.Y. 628, 630, 15 N.E. 333; Fairchild v. Fairchild, 53 N. J. Eq. 678, 34 A. 10; Waldo v. Waldo, 52 Mich. 94, 99, 17 N.W. 710; In re Ellis' Estate, 55 Minn. 401, 411, 56 N.W. 1056, 23 L. R. A. 287; Van Fleet, Coll. Attack, § 389, p. 377; Id. p. 648). See Loud v. Loud, 129 Mass. 14, 18; Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897; Bigelow, Estop. (5th Ed.) 296.
Supposing the state decisions just mentioned to be correct as to the effect of the decree between the parties, the general consequence would be that it was effective as to the rest of the world. As a general rule, it would be inconvenient to admit that parties who were divorced as between themselves were not divorced as against others. Kinnier v. Kinnier and Waldo v. Waldo, ubi supra; Adams v. Adams, 154 Mass. 290, 295, 28 N.E. 260, 13 L. R. A. 275. But a further distinction is taken. The world at large has no interest in the divorce, and therefore may be bound by it, but it is suggested that the state of the domicile has an interest, and that it cannot be concluded by a mere false recital in the record, because the foreign court did not even pretend to jurisdiction over that state. People v. Dawell, 25 Mich. 247, 257. In People v. Dawell this proposition was applied in favor of the state of the domicile as a prosecutor, and at an earlier date it was applied by this court in favor of the state as a legislator. Chase v. Chase, 6 Gray, 157, 161.
It will be borne in mind that, on the facts before us, the case is not one in which the legislature of South Dakota has undertaken to allow the grant of a divorce. It is one in which the court of that state has been deceived, and in which...
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