Arthur W. Cook v. Florence J. M. Cook

• Decision Date: 08 November 1950
• Docket Number: 1237.
• Citation: 76 A.2d 593,116 Vt. 374
• Parties: ARTHUR W. COOK v. FLORENCE J. M. COOK
• Court: Vermont Supreme Court

76 A.2d 593

116 Vt. 374

ARTHUR W. COOK v. FLORENCE J. M. COOK

No. 1237

Supreme Court of Vermont

November 8, 1950

October 1950. Opinion Filed November 8th, 1950.

PETITION FOR ANNULMENT of two marriages. Trial by court Windsor County Court, December Term, 1949, Miles, J presiding. To the judgment annuling the first marriage and dismissing the petition as to the second, the petitioner excepted.

Judgment that the purported marriage between the parties of February 5th, 1943, is void is affirmed. Judgment that the petition is dismissed as to the purported marriage of December 18th, 1943, is reversed. It is adjudged that the purported marriage between the parties of December 18th, 1943, is null and void.

Everett L. Hathorn for the petitioner.

Fucci & Fucci for the petitionee.

Present: SHERBURNE, C. J., CLEARY, ADAMS and BLACKMER, JJ.

OPINION

ADAMS

This is a petition seeking to annul two marriages between the parties; one solemnized at Elizabeth City, North Carolina, February 5, 1943, and the other at Elkton, Maryland, December 18th, 1943. The only ground relied upon is that at the time of each of the marriages, the petitionee was the wife of one Alfred H. Mann. Hearing was had by the court and findings of fact were made. Judgment was rendered that the purported marriage of February 5th, 1943, was null and void and dismissing the petition as to the marriage of December 18th, 1943. The case is here on the petitioner's exception to that part of the judgment dismissing the petition as to the second marriage.

The question on that exception is whether the judgment is supported by the findings of fact. Colby's Executor v. Poor et al., 115 Vt. 147, 154, 55 A.2d 605.

The findings show the following material facts: The petitioner is a resident of Windsor in this state and has had a residence there since 1940; he has been in the United States Navy since 1938. A. purported marriage was solemnized between the petitioner and petitionee at Elizabeth City, North Carolina, on February 5th, 1943; they lived together thereafter in Virginia for about two months. When the parties became acquainted in 1942 the petitioner knew the petitionee as Mrs. Albert Mann and at the time of the marriage knew that she had been married before but assumed she had been divorced. About two months after the marriage the petitioner discovered that the petitionee was the wife of one Alfred H. Mann at the time of the purported marriage; it was then suggested by the petitioner and agreed upon by the parties that the petitionee should go to Florida, remain there long enough to establish a residence for divorce purposes, secure a divorce from Mann and then return to the petitioner and they would remarry. Florida was chosen as it was the nearest and best place to obtain a divorce. The petitionee left Yorktown, Virginia, where the petitioner was stationed and where the parties had lived together since the marriage, went to Florida and remained a short time; she then left Florida and was at the Philadelphia Naval Hospital between April and August, 1943, after which she returned to Florida. When she consulted with Florida attorneys in the spring of 1943 she found it was necessary for a person to have an intention to remain permanently in Florida in order to gain a residence. Under the Florida law it is necessary for the complaining party to have an actual residence in the state in order to secure a divorce and for the petitionee here to gain that residence she must have had an intention to live and remain in Florida. The petitionee wrote the petitioner from Florida what the law regarding divorce was. She never intended to reside in Florida; whatever time she spent there in 1943 was solely for divorce purposes and with no intention to establish a bona fide residence there and she intended to remain there only long enough to obtain her divorce and then return to and remarry the petitioner; that was understood and agreed upon by him. The petitionee here was granted a divorce from Mann by the Circuit Court of the 11th Judicial Cicuit, Dade County, Florida, on September 10, 1943; she then left Florida and within two or three days met the petitioner at Newport News, Virginia; he was then stationed at York-town, Virginia, and thereafter the parties saw each other every day. On December 18th, 1943, they were again married at Elkton, Maryland. When her petition for divorce was heard in Florida the petitionee here, in order to fulfill the requirement of the Florida law, testified that she had lived in Florida much longer than she had and that she had intentions of remaining in Florida permanently and making that her home, when actually she had intentions of returning to the petitioner and remarrying him and she obtained her divorce by deceiving the Florida court as to the facts of her domicile. The petitioner here paid part of the expense of the trip to Florida and of the divorce action. Between December, 1943, and January, 1949, the parties lived together for periods totaling about one year. On March 29th, 1949, the petitionee instituted an action for separate maintenance against the petitioner in the Circuit Court for the First Judicial Circuit, Territory of Hawaii, both parties then being there; a decree was entered on April 7th, 1949, permitting

the petitionee here to live separate and apart from the petitioner for a period of two years and ordering the petitioner to pay to the petitionee $ 200 a month for six months and $ 150 a month for the next eighteen months. On March 29th, 1950, the parties met in Norfolk, Virginia, and registered at a hotel as husband and wife under the name of Mr. and Mrs. A. W. King and slept together that night.

We are confronted directly with the question of the recognition of a divorce decree obtained in a sister state under the full faith and credit clause of the Federal Constitution when its validity is attacked on the ground of no bona fide domicile in the divorce forum by either of the spouses.

The case now most often referred to as the leading authority on this subject is what is spoken of as the second Williams case, decided in 1945, Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 1095, 89 L.Ed. 1577, 157 A.L.R. 1366. It was there held that the question of bona fide domicile was open to attack, notwithstanding the full faith and credit clause when the other spouse neither had appeared nor been served with process in the state. The findings here do not show either of these criteria. The finding and judgment of the North Carolina court, that a party who went to Nevada simply and solely for the purpose of obtaining a divorce intending to return to North Carolina on obtaining it, never lost the North Carolina domicile nor acquired a new one in Nevada, and that North Carolina was not obliged under the full faith and credit clause to recognize a divorce granted such a party, was affirmed. It was pointed out that the finding of the Nevada court that it had power to award a decree of divorce did not foreclose the reexamination by another state. In regard to jurisdiction in divorce matters the court said:

"Under our system of law judicial power to grant a divorce--jurisdiction, strictly speaking,--is founded on domicile, * * * and since 1789 neither this Court nor any other in the English-speaking world has questioned it. * * * Divorce, like marriage, is of concern not merely to the immediate parties. It affects personal rights of the deepest significance. It touches basic interests of society. * * * If the finding by the court of one state that domicile in another state has been abandoned were conclusive upon the old domiciliary state, the policy of each state in matters of the most vital concern could be subverted by the policy of every other state." The court approved an instruction to the jury to which we subscribe that domicile is that place where a person "has voluntarily fixed his abode * * * not for a mere special or temporary purpose, but with a present intention of making it his home, either permanently or for an indefinite or unlimited length of time."

This Court in Blondin v. Brooks et al, 83 Vt. 472, 483-7, 76 A. 184, stated the law to be in accordance with that which has now been set forth in the Williams case. There is a long line of decisions from many jurisdictions of the same tenor, some of them decided before that case and many since. See Annotations in 39 A.L.R. 677; 105 ALR 817; 143 A.L.R. 1296; 157 A.L.R. 1405; 163 A.L.R. 370; 1 A.L.R. 2nd 1385.

The petitionee in her brief says that probably the decision in Blondin v. Brooks, supra, would not now be upheld. In that regard she calls attention to Deyette v. Deyette, 92 Vt. 305, 104 A. 232. The opinion in the former case was by Chief Justice Rowell and in the latter by Chief Justice Watson. The latter was a member of the court when Blondin v. Brooks was decided and there were also two other justices who were members of the court when both cases were decided. Chief Justice Watson was meticulous in his opinions and all were keen students of the law. Moreover, Blondin v. Brooks was cited and mentioned in the opinion in Deyette v. Deyette and it was pointed out that the fraud in the former case was in regard to domicile which went to the jurisdiction of the court, which is the instant case, while the fraud in the Deyette case went to the cause for granting the annulment and not to the jurisdiction. The Deyette case is not in point here and does not change the law as decided in Blondin v. Brooks.

It therefore follows that, under the findings as to domicile and residence of the petitionee here in her divorce proceeding in Florida and the deception by her upon the Florida court involving its jurisdiction, this state is not bound to give recognition to...