McFarlanc v. Mcfarland, Record No. 2486.

• Decision Date: 02 March 1942
• Docket Number: Record No. 2486.
• Citation: 179 Va. 418
• Court: Virginia Supreme Court
• Parties: JAMES M. McFARLAND v. ALICE LENOIR MCFARLAND.

Page 418

179 Va. 418

JAMES M. McFARLAND v. ALICE LENOIR MCFARLAND.

Record No. 2486.

Supreme Court of Virginia, Richmond.

March 2, 1942.

Present, All the Justices.

1. DIVORCE — Affirmance of Marriage — Code Sections 5102 and 5105 Include Suits to Determine Questions of Doubt or Denial Affecting Matrimonial Status. — Sections 5102 and 5105 of the Code of 1936, relating to suits to affirm a marriage, include suits to determine questions of doubt or denial affecting the matrimonial status as well as questions relating to the contracting rights of the parties, the form, or the solemnity of their contracts.

2. CONFLICT OF LAWS, DOMICILE AND RESIDENCE — Change of Domicile — Motive Not Controlling — Change May Be for Purpose of Securing Divorce — Case at Bar. — In the instant case, a suit to affirm the status of plaintiff as the wife of defendant, defendant obtained a divorce in a suit commenced by him by order of publication in North Carolina, where the parties never cohabited, after a court of competent jurisdiction in Virginia, the matrimonial domicile and residence of defendant, had previously decreed that the husband was not entitled to a divorce. The evidence showed that defendant did practically everything a man could do to make North Carolina his domicile. There was an actual change of his residence from Virginia to North Carolina, accompanied by all incidents of such a change and the continuance of such a residence without the expectation of a further change.

Held: That if it be conceded that defendant went to North Carolina for the purpose of securing a divorce without the intention of returning to Virginia immediately after he secured it, this did not preclude him from acquiring a bona fide residence in North Carolina, since the fact of domicile and not the motive of choice of domicile is the controlling question.

3. CONFLICT OF LAWS, DOMICILE AND RESIDENCE — Change of Domicile — Motive Not Controlling — Test Is Actual Change of Residence and Absence of Intention to Remove Elsewhere. — Whatever the motive or purpose actuating a change of domicile may be, the test to be applied in determining whether one had in fact taken place does not include them. The sole questions are: (1) An actual change of residence; and (2) the absence of in intention to remove elsewhere.

4. DIVORCE — Foreign Decrees — Presumption in Favor of Jurisdiction of Foreign Court. — When lack of jurisdiction of a foreign court, by reason of non-residence, is sought to be shown, evidence to that effect must be of the most satisfactory and convincing character, every presumption being indulged in favor of the jurisdiction found by the foreign court until the contrary is found.

5. DIVORCE — Foreign Decrees — Evidence Sufficient to Show Jurisdiction of Foreign Court — Case at Bar. — In the instant case, a suit to affirm the status of plaintiff as the wife of defendant, defendant obtained a divorce in a suit commenced by him by order of publication in North Carolina, where the parties never cohabited, after a court of competent jurisdiction in Virginia, the matrimonial domicile and residence of defendant, had previously decreed that the husband was not entitled to a divorce. The evidence showed that defendant did practically everything a man could do to make North Carolina his domicile. There was an actual change of his residence from Virginia to North Carolina, accompanied by all incidents of such a change and the continuance of such a residence without the expectation of a further change.

Held: That the evidence showed that defendant had been a bona fide resident of North Carolina and the North Carolina court had jurisdiction over him and his rights in that State.

6. STATE — States Bear to Each Other Relationship of Independent Sovereigns — Each Has Exclusive Power within Its Jurisdiction. — The several States of the United States, except as prescribed otherwise by the Federal Constitution, bear a relationship to each other of independent sovereigns, each having exclusive sovereignty and power over persons and property within its jurisdiction. Each may prescribe the form and solemnities with which contracts made by its citizens shall be executed, the rights and obligations arising therefrom, and the mode in which they shall be determined and their obligations enforced.

7. DIVORCE — Conflict of Laws — Comity — Laws Repugnant to Public Policy. — The control and recognition of marriage is left to each State in its sovereign capacity. One State cannot force its divorce laws upon another State, and no State is bound by comity to give effect in its courts to the divorce laws of another State repugnant to its own laws and public policy.

8. DIVORCE — Foreign Decrees — Applicability of Full Faith and Credit Clause. — A refusal to recognize as valid a decree of divorce granted by the court of another State to a resident of that State against a resident of this State, upon whom no personal service or process has been made in the jurisdiction of the forum, does not offend against the full faith and credit clause of the Federal Constitution (Article 4, section 1) although it is otherwise when the suit is brought in the State of the matrimonial domicile of the parties against the consort who has left that State and gone to another.

9. DIVORCE — Foreign Decrees — Comity — Not Applicable to Decree Infected with Fraud or Contrary to Morals or Public Policy. — The principles of comity do not require the Supreme Court of Appeals to give effect to a decree falsely or fraudulently obtained or one which is contrary to the morals or public policy of this State.

10. CONFLICT OF LAWS, DOMICILE AND RESIDENCE — Comity — Definition. — Comity has been defined as the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

11. CONFLICT OF LAWS, DOMICILE AND RESIDENCE — Comity — Not a Matter of Obligation but of Favor or Courtesy. — Comity is not a matter of obligation. It is a matter of favor or courtesy, based on justice and good will. It is permitted from mutual interest and convenience, from a sense of the inconvenience which would otherwise result, and from moral necessity to do justice in order that justice may be done in return.

12. CONFLICT OF LAWS, DOMICILE AND RESIDENCE — Comity — When Rule Not Applied. — Comity is not given effect when to do so would prejudice a State's own rights or the rights of its citizens.

13. DIVORCE — Foreign Decrees — Comity — Foreign Decree Held Injurious to Rights of Plaintiff — Case at Bar. — In the instant case, a suit to affirm the status of plaintiff as the wife of defendant, defendant obtained a divorce in a suit commenced by him by order of publication in North Carolina, where the parties never cohabited, after a court of competent jurisdiction in Virginia, the matrimonial domicile and residence of defendant, had previously decreed that the husband was not entitled to a divorce.

Held: That the decree of the Virginia court became res judicata upon the issues involved and under it plaintiff continued to have her marital and dower rights. The foreign decree, if operative in Virginia, would inflict upon plaintiff a wrong as injurious as if that decree had been fraudulently obtained.

14. DIVORCE — Conflict of Laws — Comity — Permitting Person Guilty of Desertion to Secure Divorce Contrary to Virginia Law. — The laws of North Carolina permitting a person guilty of deserting his spouse to secure a divorce by persisting in his wrongful desertion for a period of two years or more are repugnant to the laws of Virginia and contrary to the court's sense of justice.

15. DIVORCE — Foreign Decrees — Comity — Lack of Reciprocity Generally Not Basis for Denial — Exception. — While lack of reciprocity is not generally regarded as a basis for the denial of comity, the State of North Carolina cannot properly complain of the refusal of this State to recognize a divorce granted in that State upon constructive service of process, since it does not recognize divorces similarly obtained in its sister States.

16. DIVORCE — Foreign Decrees — Comity — Not Intended to Make a Farce of Our Laws, Institutions and Judgments of Our Courts. — A spouse guilty of the desertion and abandonment of his consort in the state of the matrimonial domicile, who takes advantage of a foreign law contrary to the law of this State, has no just call upon this State for the exercise of comity. The employment of comity was never intended to have the effect of making a farce of our laws, our institutions, and the judgments of our courts.

17. DIVORCE — Foreign Decrees — Comity — North Carolina Decree Held Inoperative and Invalid — Case at Bar. — In the instant case, a suit to affirm the status of plaintiff as the wife of defendant, defendant obtained a divorce in a suit commenced by him by order of publication in North Carolina, where the parties never cohabited, after a court of competent jurisdiction in Virginia, the matrimonial domicile and residence of defendant, had previously decreed that the husband was not entitled to a divorce. The North Carolina law permitted a person to obtain a divorce if the married parties had merely lived separate and apart for two years, irrespective of the cause of separation and freedom from fault, while under the Virginia law only the party free from fault could obtain such a decree.

Held: That the decree of the North Carolina court, so far as it attempted to substitute the law of North Carolina for that of Virginia, was inoperative and invalid in this State.

18. DIVORCE — Foreign Decrees — Comity — Denial Does Not Render Decree "Null and Void" but Merely Inoperative and Invalid — Case at Bar. — In the instant case, a suit to affirm the status of plaintiff as the wife of defendant, defendant...