Perkins v. Perkins

• Decision Date: 17 October 1916
• Citation: 113 N.E. 841,225 Mass. 82
• Parties: PERKINS v. PERKINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 82

113 N.E. 841

PERKINS

v.PERKINS.

Supreme Judicial Court of Massachusetts, Middlesex.

Oct. 17, 1916.

Exceptions from Superior Court, Middlesex County; Marcus Morton, Judge.

Bill by Mabel Winter Perkins against George Edward Perkins. Upon libelee's exceptions to decree for libelant. Exceptions overruled.

Fletcher Ranney and D. P. Ranney, both of Boston, for libelant.

Elbridge R. Anderson, of Boston, for libelee.

RUGG, C. J.

This is a libel filed in November, 191k, praying for divorce on the ground of desertion continued for three consecutive next preceding years. The libelee set up in answer a decree for divorce obtained by him in Georgia on October 5, 1914. The pertinent facts as found by the judge are that the libelant and libelee were married and lived in this commonwealth as their domicile until the summer of 1912, when he deserted the libelant without letting her know his place of abode, and she remained in ignorance on that point until his return to this state late in 1914. He left this commonwealth in good faith and not for the purpose of obtaining a divorce, and became a citizen of Georgia. In that state, in conformity with its laws, he obtained a divorce on the ground of cruel and abusive treatment alleged to have been committed by the libelee. Although he complied with the Georgia laws in giving notice to his wife, she never received notice of the proceedings. He returned from Georgia to Massachusetts in October, 1914, and it may be assumed that personal service of the present libel was made upon him here. The judge found that the charge of desertion was proved, and ruled that the libelant was entitled to a divorce. The question presented is whether the Georgia divorce is a bar to the present libel.

The case is not within the terms of R. L. c. 152, § 35.¹ The jurisdiction of any foreign court over the cause and the parties is open to investigation and decision by the court of the forum. Andrews v. Andrews, 176 Mass. 92, 94, 57 N. E. 333; s. c., 188 U. S. 14, 23 Sup. Ct. 237, 47 L. Ed. 366. The Georgia court did not have ‘jurisdiction of * * * both the parties.’ The wife was innocent of any marital wrong in 1912, when the husband deserted her without justifiable cause. Therefore her domicile did not follow that of the husband when he went to Georgia, but she legally was enabled to retain as her own, by reason of her continued residence here, the matrimonial domicile in this commonwealth. His desertion was a wrong against her marital rights and enabled her to keep the old domicile regardless of the fiction that the domicile of the wife commonly follows that of the husband. Shaw v. Shaw, 98 Mass. 158;Burtis v. Burtis, 161 Mass. 508, 37 N. E. 740;Bradford v. Worcester, 184 Mass. 557, 69 N. E. 310.

It has been held, also, that the Georgia court did not have jurisdiction of the cause. The marriage status was not ‘within the sweep of the judicial power of that court.’ Where the parties are married in one state and there establish a matrimonial domicile, a domicile which is retained by one spouse who is innocent of any marital wrong, and which is abandoned by the other who is guilty of marital wrong, then the courts of the state of the matrimonial domicile have ‘jurisdiction over the marriage relation, and the proper courts of that state’ can ‘proceed to adjudicate respecting it upon grounds recognized by the laws of that state, although’ the other spouse has left that jurisdiction and can ‘not be reach by formal process.’ This proposition is declared in Thompson v. Thompson, 226 U. S. 551, 562, 33 Sup. Ct. 129, 131 (57 L. Ed. 347), to be ‘clear * * * under the decision in the Atherton Case, 181 U. S. 155, 21 Sup. Ct. 544, 45 L. Ed. 794, and the principles upon which it rests.’ Thus courts of the state of the matrimonial domicile, at the petition of one spouse retaining that domicile and innocent of any marital wrong, stand upon firmer ground than the courts of any other state in respect of jurisdiction over the marriage status. See, also, Hood v. Hood, 11 Allen, 196, 87 Am. Dec. 709, and Burlen v. Shannon, 115 Mass. 438.

As the libelee did not go to Georigia for the purpose of obtaining a divorce and as cruel and abusive treatment on which the divorce was granted is recognized as a cause by R. L. c. 152, § 1, the Georgia divorce is not pronounced by said section 35 as of no force or effect in this commonwealth.

Since the case at bar is not within the terms of our statute requiring recognition or declaring the invalidity of foreign divorces, it must be decided on general principles.

The decree of the Georgia court is not entitled to recognition here under the full faith and credit clause of the federal Constitution. Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1. Whether recognition and effect shall be given to it by courts of this commonwealth depends upon principles of interstate comity. Such comity has been defined by Mr. Justice Gray in Hilton v. Guyot, 159 U. S. 113, 163, 164, 16 Sup. Ct. 139, 143 (40 L. Ed. 95), as:

‘Neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is 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.’

The principle upon which judgments of foreign courts are accorded their full effect is that where parties have once litigated fairly a dispute in the courts of any civilized country, the same question ought not to be tried anew by the courts of another jurisdiction. Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 213, 89 N. E. 193,40 L. R. A. (N. S.) 314. That principle applies with diminishing force where the essential elements of valid litigation are not all present, and reaches almost a vanishing point where the hearing is ex parte and the subject matter of the litigation is not in an international sense within the jurisdiction of the foreign court. On the other hand, it is highly desirable that as to a subject of such vital and far-reaching importance as the dissolution of the marriage relation, there should be uniformity of practice between the several states of the Union in the recognition of judgments of sister states. Assertions of jurisdiction by one state should so far as possible be the correlative of recognition of jurisdiction in other states.

The federal Supreme Court, although without jurisdiction over the subject of divorce, is vested with power to declare with reference to it the principles by which interstate rights and obligations exist and will be enforced. If the principles so declared as to divorce are made a common basis for the exercise of interstate comity, there may be a closer approach to unity of decision among the several states. Two rules...