Everly v. Baumil

• Decision Date: 21 October 1946
• Docket Number: 15877.
• Parties: EVERLY v. BAUMIL.
• Court: South Carolina Supreme Court

39 S.E.2d 905

209 S.C. 287

EVERLY v. BAUMIL.

No. 15877.

Supreme Court of South Carolina

October 21, 1946

C. R. Burbage, of Charleston, for appellant.

Huger Sinkler and Charles H. Gibbs, both of Charleston, for respondent.

OXNER Justice.

This action was brought to annul the marriage between plaintiff and defendant. It comes before us on an appeal by defendant from an order of the Court below overruling a demurrer to the complaint. The following facts, which must be accepted as true in passing on the demurrer, are alleged in the complaint:

Defendant was formerly married to one Joe Baumil. She procured a divorce from him in the State of Florida, falsely representing in that proceeding that she was a resident of that State, when in fact she was a resident of Charleston South Carolina, and had been in Florida less than a week before the commencement of the divorce action there. Thereafter she represented to the plaintiff that she had obtained a valid divorce from Baumil and plaintiff and defendant were married at Savannah, Georgia, on December 19, 1942. After living together as man and wife for a period of six or seven months, defendant left plaintiff and they have not lived together since. Subsequent to this separation, plaintiff learned for the first time that the defendant's divorce from her first husband was obtained by fraudulent representations as to her domicil and thereafter commenced this action in September, 1945. It is alleged in the complaint that the defendant is now, and was at the times mentioned, a resident of South Carolina and was never a resident of Florida. There is no allegation, however as to the residence of either the plaintiff or Baumil.

The annulment of the marriage between plaintiff and defendant is sought on the ground that defendant is still the lawful wife of Baumil, as her marriage to him according to the allegations of the complaint has not been dissolved either by his death or by a valid decree of divorce.

By appropriate exceptions, defendant contends that the courts of this State are without jurisdiction to annul the marriage in question because (1) it was celebrated in the State of Georgia, and (2) the jurisdiction of the Florida Court to grant the divorce of defendant from her first husband cannot be collaterally attacked in this proceeding.

It is conceded that the Court below had jurisdiction of the parties to the action. Does the Court of Common Pleas of Charleston County, where the defendant now resides and has her domicil have jurisdiction in the sense of having the power to annul a marriage which was not celebrated in this State, but in the State of Georgia? Or do the Courts of Georgia, as contended by defendant, have exclusive jurisdiction of such an action? The overwhelming weight of authority, both in this country and in England, is to the effect that the courts of the domicil of the parties have jurisdiction to annul a marriage celebrated elsewhere. Cunningham v. Cunningham, 206 N.Y. 341, 99 N.E. 845, 43 L.R.A.,N.S., 355; Christlieb v. Christlieb, 71 Ind.App. 682, 125 N.E. 486; Gwin v. Gwin, 219 Ala. 552, 122 So. 648; Hanson v. Hanson, 287 Mass. 154, 191 N.E. 673, 93 A.L.R. 701; Levy v. Levy, 309 Mass. 230, 34 N.E.2d 650; Davis v. Davis, 119 Conn. 194, 175 A. 574; Cross v. Cross, 110 Mont. 300, 102 P.2d 829; Hitchens v. Hitchens, D.C., 47 F.Supp. 73; Restatement of the Law of Conflict of Laws, American Law Institute, Section 115. It is further generally held that the domicil of one of the parties within a state is sufficient to confer jurisdiction upon its courts to grant a decree of annulment where, as in the instant case, the court has jurisdiction of both parties by voluntary appearance or personal service withih the state. Solely as a matter of interest, as the question is not before us, we mention the case of Pepper v. Shearer, 48 S.C. 492, 26 S.E. 797, where in an action for annulment brought by a resident of this State against a nonresident upon whom there was attempted personal service outside of this State, it was held that such service was insufficient to give the courts of this State jurisdiction of the person of the defendant.

The view that jurisdiction in an action for the annulment of a marriage rests exclusively in the state or country where the marriage is celebrated has received scant support from the courts. See annotation in 128 A.L.R. 61. It has been championed, however, in some academic circles. See Goodrich, Jurisdiction to Annul a Marriage, 32 Harvard L. Review 806. The soundness of the theory advanced by the author of the article mentioned is vigorously attacked in an article found in 18 Cal.L.Review, page 105.

We do not think there is any reasonable justification for denying to the courts of the forum where the parties are domiciled the power to annul a marriage solemnized in another state. It is fundamental that each state has the right to determine the marital status of its citizens under its laws. As stated by Mr. Justice Douglas in Williams v. State of North Carolina 317 U.S. 287, 63 S.Ct. 207, 213, 87 L.Ed. 279, 143 A.L.R. 1273, 'Domicil creates a relationship to the state which is adequate for numerous exercises of...