Davis v. Davis

• Decision Date: 03 April 1951
• Citation: 259 Wis. 1,47 N.W.2d 338
• Parties: DAVIS, v. DAVIS.
• Court: Wisconsin Supreme Court

Page 338

47 N.W.2d 338

259 Wis. 1

DAVIS, v. DAVIS.

Supreme Court of Wisconsin.

April 3, 1951.

Douglas & Omernik, Spooner, for appellant.

G. Arthur Johnson, Mark H. Makholm, Ashland, for respondent.

BROWN, Justice.

Appellant presents no bill of exceptions and in the absence of one this court is limited to ascertaining whether the judgment is sustained by the pleadings and by the findings. Parke, Austin & Lipscomb, Inc., v. Sexauer, 1931, 204 Wis. 415, 235 N.W. 785; Edleman v. Kidd, 1885, 65 Wis. 18, 26 N.W. 116; McDermott v. Chicago, Milwaukee & St. Paul R. Co., 1895, 91 Wis. 38, 64 N.W. 430.

A court has no jurisdiction to grant a divorce unless at least one of the parties to the marriage has a bona fide domicile in the state where the court sits. Restatement, Conflict of Laws, sec. 111. It is not contended that Mrs. Lois Davis ever had a Wyoming domicile. The Wisconsin trial court determined that Mr. Davis had no Wyoming domicile and that the Wyoming court was without jurisdiction in the divorce action for that reason. Its findings, material to this issue, are as follows:

'3. That during the fall of 1947 the defendant commenced an action of divorce in the Circuit Court of Sawyer County, State of Wisconsin, which action was contested by the plaintiff herein and abandoned and dismissed on application of the defendant herein on the 13th day of February, 1948.

'4. That on the 15th day of February, 1948, the defendant sojourned to the village of Greybull, County of Big Horn, State of Wyoming, and after being in said locality for a period of approximately sixty days the defendant, Vincent P. Davis, applied to the District Court of Big Horn County, State of Wyoming, for a divorce, and on the 8th day of July, 1948, a purported decree of divorce was entered by said court granting a divorce to the said defendant; that within a period of approximately one month after such purported divorce, the defendant returned to the City of Hayward, Sawyer County, State of Wisconsin, where he continued his practice of law, and in the fall of 1948 the defendant married the interpleaded defendant, Lillian Davis, in the State of Illinois, and in the spring of 1949 she took up her residence with the defendant at the City of Hayward, Wisconsin, and the defendant and the interpleaded defendant continued their residence in the City of Hayward, Sawyer County, State of Wisconsin, up until the time of the trial of this action; that the defendant, Vincent P. Davis, has at all times indicated his place of residence as being in the State of Wisconsin, by, among other things, filing his income tax in the State of Wisconsin by commencing in the fall of 1947 and carrying on thereafter the development of a cranberry marsh near the said City of Hayward, declaring the intention of developing such marsh, and by acting as Assistant District Attorney of said County of Sawyer.'

The court's finding of ultimate fact and its conclusion of law that both parties at all times were residents of Wisconsin and its judgment that the Wyoming divorce was void for lack of jurisdiction are amply supported by these findings which stand as verities in the absence of a bill of exceptions, but we must still deal with the question of whether the Wisconsin courts are not compelled to accord full faith and credit to the Wyoming decree notwithstanding such findings and notwithstanding sec. 247.21, Stats., whose material part reads: 'Full faith and credit shall be given in all the courts of this state to a decree of * * * divorce by a court of competent jurisdiction in another state, * * * provided, that if any inhabitant of this state go into another state, * * * for the purpose of obtaining a decree of divorce for a cause which occurred while the parties resided in this state, or for a cause which is not ground for divorce under the laws of this state, a decree so obtained shall be of no force or effect in this state.'

Appellant submits that when the Wyoming court decided that it had jurisdiction as it must be presumed to have done by proceeding with the cause, 21 C.J.S., Courts, § 113, and entered its decree of divorce, that decree must be accorded full faith and credit in Wisconsin and elsewhere because of the provisions of the United States Constitution and statutes which read as follows:

U.S.Const. Art. IV, Sec. 1: 'Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.'

28 U.S.C. § 1738, 28 U.S.C.A. § 1738: 'Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.'

For many years it was generally held, and the Supreme Court of the United States concurred, that the foregoing constitutional and statutory provisions did not prevent the courts of the state where the parties actually resided from deciding whether at least one of the parties had acquired a domicile in the state of the forum and if not such court was at liberty to refuse recognition to the divorce. The right of the state of true residence to control the domestic relations of its...