Gregory v. Gregory

• Decision Date: 20 December 1884
• Citation: 76 Me. 535
• Parties: ELVIRA G. GREGORY v. MELVILLE J. GREGORY.
• Court: Maine Supreme Court

76 Me. 535

ELVIRA G. GREGORY v. MELVILLE J. GREGORY.

Supreme Judicial Court of Maine.

December 20, 1884

ON EXCEPTIONS.

The opinion states the case.

Barker Vose and Barker and A. L. Simpson, for the plaintiff, cited: Story, Constitution, § 1313; Res Adjudicata & Stare Decisis, (Wells), § § 537, 542 543, 550-552; Bissell v. Briggs, 9 Mass. 467; Rathbone v. Terry, 1 R. I. 73; Kerr v Kerr, 41 N.Y. 275; Carleton v. Bickford, 13 Gray 591; McGiffert v. McGiffert, 31 Barb. 69; S. C. 17 How. 18; Todd v. Kerr, 42 Barb. 317; Hanover v. Turner, 14 Mass. 229; Lyon v. Lyon, 2 Gray 367; Shannon v. Shannon, 4 Allen 134; Smith v Smith, 13 Gray 209; Sewall v. Sewall, 122 Mass. 156; Story, Conflict of Laws, 543; Borden v. Fitch, 15 Johns. 145; Jackson v. Jackson, 1 John. 432; 1 Bishop, Mar. & Div. (4th ed) § 87; Bank v. Butman, 29 Me. 19; 2 Kent's Com. 108; Garner v. Garner, 56 Md. 127 (21 Am. L. Reg. 346); Roth v. Ehman, 21 Am. L. Reg. 589: Briggs v. Briggs, L. R. 5 Prob. Div. (19 American Law Reg. 586); Niboyet v. Niboyet, 18 American Law Reg. 539; 16 American Law Reg. 65, 193; Barber v. Root, 10 Mass. 260; 227; Calef v. Calef, 54 Me. 365; Hood v. Hood, 11 Allen. 196; Brett v. Brett, 5 Met. 233; Harteau v. Harteau, 14 Pick. 181.

Josiah Crosby, for the defendant.

VIRGIN J.

Action of dower against the grantee of the demandant's late husband.

To the prima facie case in behalf of the demandant, the defendant interposed an alleged divorce a vinculo decreed to her husband by the Recorder's Court in Chicago. If sustained her right of dower is thereby cut off. Stilphen v. Houdlette, 60 Me. 447.

The presiding justice ruled that the divorce was presumed to be legal under the evidence offered, until the contrary appeared.

Thereupon the demandant interposed the provisions of R. S., c. 60, § 10, which provides: " When residents of this state go out of it for the purpose of obtaining a divorce for causes which occurred while the parties lived here, or which do not authorize a divorce here, and a divorce is obtained, it shall be void in this state; " and introduced evidence which her counsel contended tended to bring the case within its provisions.

The defendant contended that these provisions were not applicable to a resident of this state who had bona fide abandoned his residence here, with no intention of returning, and had bona fide, established his residence in Illinois for one year (as provided by the statute of that state) prior to his application for divorce and did not return to this state. The presiding judge for the purposes of the trial, ruled otherwise, and submitted the case to the jury with the instruction (among others), that if they were satisfied that the demandant's husband went out of the state for the purpose of obtaining a divorce from the demandant, for some cause alleged in this state and that he did obtain, for some cause alleged in this state, a divorce there, then they should return a verdict for the demandant; which they did.

Was this interpretation correct?

We borrowed this statutory provision, as we have many others, from Massachusetts, and adopted it in our revision of 1841.

In 1817, the court in that commonwealth held that if a citizen of that state removed into another state for the purpose of obtaining a divorce for a cause occurring in the former, the decree would be void there. Hanover v. Turner, 14 Mass. 227. This case was approved by our court in Harding v. Alden, 9 Me. 140, 151.

In revising the statutes of Massachusetts in 1836, the commissioners proposed and the legislature affirmed the principle by a statute in the following language: " When any inhabitant of this state shall go into any other state or country, in order to obtain a divorce for any cause which had occurred here and while the parties resided here, or for any cause which would not authorize a divorce by the laws of this state, a divorce so obtained shall be of no force or effect in this state." R. S., (Mass.) c. 76, § 39.

In construing this statute, SHAW, C. J., said: " The object of this statute obviously was to prevent a species of abuse which had been practiced, by obtaining divorces in other states where the parties had no domicil, and where no cause of divorce had occurred. Hanover v. Turner, 14 Mass. 227. But it is confined to persons, inhabitants of this state, who go into other states for the purpose of obtaining clandestine and unauthorized divorces." Clark v. Clark, 8 Cush. 385.

So where a wife left her husband's house in Massachusetts, went to Rhode Island, and in a few months thereafter, on notice to her husband, obtained a divorce for his alleged cruelty, the same eminent jurist, speaking for the court, said: " Even before the revised statutes, upon general principles of justice and policy, such a divorce would have been void, partly on the ground that it was a proceeding in fraud of our law and partly because the court of the foreign state could have no jurisdiction of the subject matter and of the parties." Lyon v. Lyon, 2 Gray 367. The court also discusses the evidence of the purpose in going to Rhode Island. See also Chase v. Chase, 6 Gray 157, 161; Smith v. Smith, 13 Gray 210; Shannon v. Shannon, 4 Allen 134.

So in a recent case, GRAY, C. J., said; " When a person domiciled in this state goes, in evasion and fraud of the laws of his domicil, into another state, in order to obtain a divorce there, for a cause which had occurred here while the parties reside here, or for a cause which would not authorize a divorce by our law, it is within the power of the state, by its courts or its legislature, to declare or enact that a divorce, so obtained before acquiring a domicil in the other state, is or shall be of no force or effect in this state. This application of the general principle has been long recognized by this court and has been repeatedly affirmed by statute," citing cases and the various revisions, and Ditson v. Ditson, 4 R. I. 87, 93; Sewall v. Sewall, 122 Mass. 156, 161.

It seems therefore that the statute is but an affirmation of the general principle of law which makes the domicil of one of the parties at least the test of jurisdiction; and the statute is predicated upon the assumption that the party leaving the state for the purpose of getting a divorce has not acquired a domicil in the other state. That such is the opinion of C. J. GRAY, is made evident from the clause " before acquiring a domicil in the other state," in the foregoing quotation, thereby implying that if...