Larsen v. Gallogly

Citation361 F. Supp. 305
Decision Date16 July 1973
Docket NumberCiv. A. No. 5117.
PartiesRaymond J. LARSEN v. Edward P. GALLOGLY et al.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island

Harold H. Winsten, Providence, R. I., for plaintiff.

W. Slater Allen, Jr., Asst. Atty. Gen., State of Rhode Island, Providence, R. I., for defendants.

OPINION

Before McENTEE, Circuit Judge, PETTINE, Chief Judge, and DAY, District Judge.

PETTINE, Chief Judge.

This is a civil rights action authorized by 42 U.S.C.A. § 1983 in which the plaintiff seeks to have this Court declare unconstitutional and to enjoin enforcement of Title 15, Chapter 5, Section 12 of the General Laws of Rhode Island (1956, 1969 Reenactment) which establishes a two year residency requirement for divorce.1 The palintiff further asserts a claim for compensatory damages. Jurisdiction is predicated on 28 U.S.C. § 1343(3).

Plaintiff contends that the two year residency requirement for divorce chills his constitutional right to interstate travel and violates the Fourth, Ninth and Fourteenth Amendments. Since the challenged statute is of state-wide application, this three-judge court was convened pursuant to 28 U.S.C. § 2281 and § 2284.

Findings of Fact

The facts of this case are uncontested. On July 15, 1971 the plaintiff, Raymond J. Larsen, moved from the state of New York to Rhode Island, where he now resides. He filed a miscellaneous petition for relief without commencement of divorce with the Family Court of the State of Rhode Island. After the court granted the relief prayed for, the plaintiff moved to amend this petition to a petition for absolute divorce. This motion was denied because he did not meet the two year residency requirement.

Discussion of Law

Plaintiff has moved for summary judgment. Fed.R.Civ.P. 56. There is no genuine issue of fact, nor does this Court lack the facts necessary for the adjudication of the legal issues. See Besaw v. Affleck, 333 F.Supp. 775, 778 (D.R.I.1971).

Plaintiff makes a two-pronged argument that the divorce residency law is unconstitutional: that this condition penalizes the constitutionally protected right of interstate travel and that it denigrates the right of due process. We conclude that this argument must prevail.

The freedom of interstate travel has long been recognized as a guarantee under our Constitution, Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1968); United States v. Guest, 383 U. S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1965); The Passenger Cases, 7 How. 283, 492, 12 L.Ed. 702 (1849) and has been characterized as a fundamental right. Shapiro v. Thompson, supra.

Shapiro v. Thompson, supra, and Dunn v. Blumstein, supra, have established that infringements on the guarantee of interstate travel invoke the "compelling interest" standard of review. As the court in Dunn explained:

"The right to travel is an `unconditional personal right,' a right whose exercise may not be conditioned citations omitted. Durational residency laws impermissibly condition and penalize the right to travel by imposing their prohibition on only those persons who have recently exercised that right. * * * Absent a compelling state interest, a State may not burden the right to travel in this way." (emhasis added) Id. 405 U.S. 341-342, 92 S.Ct. 1003. Cf. Shapiro v. Thompson, supra, 394 U.S. 638 n. 21, 86 S.Ct. 1170; Cole v. Housing Authority of City of Newport, 435 F.2d 807, 811 (1st Cir. 1970).

The compelling state interest test is "triggered by `any classification which serves to penalize the exercise of that right to travel . . . .'" Shapiro, supra, 394 U.S. at 634, 89 S.Ct. at 1331, cited by Dunn, supra, 405 U.S. at 340, 92 S.Ct. 1002; see also Cole v. Housing Authority of City of Newport, 435 F.2d 807, 810 (1st Cir. 1970).

A "penalty" in this context means the suffering of "disadvantage, loss or hardship due to some action." Cole v. Housing Authority of City of Newport, supra, 435 F.2d at 811. As a result of the residency requirement for divorce, new citizens of Rhode Island must endure a hiatus of two years before they become entitled to a judicial adjustment of a "fundamental human relationship." Boddie v. Connecticut, 401 U.S. 371, 383, 91 S.Ct. 780, 28 L. Ed.2d 113 (1971). Without doubt this statute "penalizes persons because they have recently migrated to Rhode Island." Cole v. Housing Authority of City of Newport, supra, 435 F.2d at 811. Therefore, we find that the defendants must demonstrate a compelling state interest in order for us to sustain this statute as constitutional.2

Relying on Boddie v. Connecticut, supra, the plaintiff further asserts that there has been an abridgement of his right to due process. In Boddie, welfare recipients challenged, as an obstacle to divorce, a Connecticut statute which required the payment of court filing fees in order to commence a civil action. The court held that the state's denial to indigents of access to the courts for divorces violated due process.

Boddie recognized "the basic position of the marriage relationship in this society's hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship." Id. 401 U.S. at 374, 91 S.Ct. at 784.

Here, as in Boddie, a segment of the citizenry is being denied access to judicial dissolution of the marriage relationship. See Wymelenberg v. Syman, 328 F.Supp. 1353, 1354 (D.Wis.1971). It has been held, however, that Boddie does not constitute precedent for the determination of the validity of durational residency requirements which are substantive requirements for divorce and not jurisdictional prerequisites which foreclose access to a court.3 Whitehead v. Whitehead, 492 P.2d 939, 947 (Hawaii 1972). The Rhode Island case law sheds little light as to whether this requirement is jurisdictional or substantive.4

Whether the state completely precludes an applicant for divorce from a hearing by decreeing the durational residency requirement to be an indispensable element of the court's jurisdiction to hear the case, or whether the state provides a judicial forum for the determination of the fulfillment of the residency requirement, the result is the same. In both instances the denial of a judicial remedy is mandated.

We read Boddie as standing for the proposition that when the state does provide for judicial dissolution of the marital bonds, all citizens of the state must be given

"`an opportunity to be heard . . . granted at a meaningful time and in a meaningful manner,' Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) (emphasis added), `for a hearing appropriate to the nature of the case,' Mullane v. Central Hanover Bank & Trust Co., supra 339 U.S. 306 at 313 70 S.Ct. 652, at 657, 94 L.Ed. 865." Boddie, supra, 401 U.S. at 378, 91 S.Ct. at 786.

It appears to us to be mere semantics to assert that under either "type" of residency requirement, the petitioner has been provided with a "meaningful opportunity to be heard." Boddie, supra, 401 U.S. at 377, 91 S.Ct. 780.

We, therefore, find that this statute abridges due process.

Under the standard of Boddie, supra, at 377, 91 S.Ct. at 785, such violation of due process can only be justified by "a countervailing state interest of overriding significance."

Two standards of review are thus interjected in this case: that required by the due process analysis, and the "compelling interest" equal protection test necessitated by the violation of the right of interstate travel, discussed above. The difference between these two standards is vague.5 To pass the constitutional screening, however, this statute must meet the more stringent standard. Whether the "compelling interest" test is considered the lesser or higher standard, we find that this measure has not been met.

The first purpose advanced in justification of this statute is that a two year residency requirement insures the state that it has jurisdiction over, at least, one of the parties to the divorce action, and therefore the power to render a divorce decree which will be accorded full faith and credit by its sister states. See Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942). The state undisputably has a legitimate interest in the protection of the validity of its divorce decrees in order to avoid the social havoc which would otherwise result. But the condition of two years residency is a separate and distinct requirement from that of domicile. R.I. G.L. 15-5-12. Admittedly, residency does provide one indicia of domicile. Arguably, the two year residency requirement is an administratively efficient and convenient yardstick of domicile. Such a rule might also serve to safeguard against perjured testimony in a divorce action, where it is in the petitioner's self-interest to testify that he or she intends to permanently reside in this state.

We find this rationale fails. The residency requirement functions as an irrebuttable presumption against domicile for the first two years. It acts as a crude net which enmeshes both domiciliaries and non-domiciliaries. As such, it violates the Equal Protection Clause of the Fourteenth Amendment, Dunn, supra, 405 U.S. 350-352, 92 S.Ct. 995; Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965).

Furthermore, administrative convenience cannot serve as justification for the abridgement of constitutional guarantees where less restrictive means are available. Shapiro v. Thompson, supra, 394 U.S. 637-638, 89 S.Ct. 1322; Dunn v. Blumstein, supra, 405 U.S. 349-354, 92 S.Ct. 995. An inquiry as to the domicile of the parties might easily be incorporated into the divorce hearing itself. False testimony under oath might be discouraged by sanctions against perjury pursuant to R.I.G.L. 11-33-1, 11-33-2 (1956, 1969 Reenactment), or a statute might be enacted punishing the abuse of process. A shorter period of residency might also pass...

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    ...Wymelenberg v. Syman, 328 F.Supp. 1353 (E.D.Wis.1971); 1971); Mon Chi Heung Au v. Lum, 360 F.Supp. 219 (D.Haw.1973); Larsen v. Gallogly, 361 F.Supp. 305 (D.R.I1973) (all striking down durational residence requirements), with Shiffman v. Askew, 359 F.Supp. 1225 (M.D.Fla.1973), Sosna v. Iowa,......
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