Rubinstein v. Rubinstein

• Decision Date: 06 June 1949
• Citation: 86 N.E.2d 654,324 Mass. 340
• Parties: REA RUBINSTEIN v. BENJAMIN RUBINSTEIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 340

86 N.E.2d 654

REA RUBINSTEIN v. BENJAMIN RUBINSTEIN.

Supreme Judicial Court of Massachusetts, Worcester.

June 6, 1949

October 8, 1948.

Present: QUA, C.

J., LUMMUS, DOLAN WILKINS, & WILLIAMS, JJ.

Marriage and Divorce, Jurisdiction, Foreign divorce, Cruel and abusive treatment. Jurisdiction, Divorce proceedings. Constitutional Law, Full faith and credit, Divorce. Domicil.

A divorce proceeding in Nevada was ex parte and therefore subject to reexamination in our courts as to jurisdictional facts found where it appeared that the only service of process upon the defendant in the

Nevada proceeding was in this Commonwealth and that up to and including the decisive date of the Nevada decree there was no appearance nor participation in such proceeding by the defendant, who never had been in

Nevada.

Conclusions by this court in Rubinstein v. Rubinstein, 319 Mass. 568 that a husband did not acquire a domicil in Nevada and that a court of that

State therefore did not have jurisdiction in a divorce proceeding brought there by him were affirmed on reexamination of evidence which showed that he left Massachusetts, where he and his wife had always had their matrimonial domicil, not without intention to return here but because of a contempt proceeding brought by his wife for his failure to obey a separate support decree; that he went to Nevada and stayed there until the divorce was granted; that he then went to New

York where he lived until certain financial questions between the parties had been adjusted by his father; and that shortly thereafter he returned to Massachusetts to live.

Evidence of physical violence, threats, and profanity of a husband warranted a finding of cruel and abusive treatment of his wife by him.

LIBEL for divorce filed in the Probate Court for the county of Worcester on February 20, 1945.

The case was reheard by Atwood, J., after the decision by this court reported in 319 Mass. 568 .

J. D. O'Reilly, Jr., for the libellee. L. Rubin, for the libellant.

WILKINS, J. After our earlier decision in this case (319 Mass. 568), there was a hearing in the Probate Court. On March 24, 1947, a decree nisi of divorce was entered on the ground of cruel and abusive treatment, and the libellee appealed. In the meantime, there have been decided Sherrer v Sherrer, 334 U.S. 343, and Coe v. Coe, 334 U.S. 378 (reversing respectively two of our later decisions, Sherrer v. Sherrer, 320 Mass. 351 , and Coe v. Coe, 320 Mass. 295), which overrule, certainly in part, Andrews v. Andrews, 188 U.S. 14, and give to Davis v. Davis, 305 U.S. 32, a far more general application than had been our interpretation of that case. See Rubinstein v. Rubinstein, 319 Mass. 568 , 571-572. We are now asked to reconsider our earlier decision that the libellee had no bona fide domicil in the State of Nevada, and that that State lacked jurisdiction to grant him a divorce. We, accordingly, make such reconsideration, noting that there is a presumption of the validity of the Nevada decree. Williams v. North Carolina, 325 U.S. 226, 233-234. Esenwein v. Commonwealth, 325 U.S. 279, 280-281.

The Sherrer case is founded upon the proposition that "the requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister State where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the State which rendered the decree" (334 U.S. 343, 351-352). In other words, no matter what may have been the actual fact as to domicil, appearance and participation of both parties in such circumstances preclude further inquiry elsewhere, at least in a case between them. In the Sherrer case a distinction is drawn (pages 355-356) as to ex parte proceedings in these words: "It is one thing to recognize as permissible the judicial reexamination of findings of jurisdictional fact where such findings have been made by a court of a sister State which has entered a divorce decree in ex parte proceedings. It is quite another thing to hold that the vital rights and interests involved in divorce litigation may be held in suspense pending the scrutiny by courts of sister States of findings of jurisdictional fact made by a competent court in proceedings conducted in a manner consistent with the highest requirements of due process and in which the defendant has participated." In Rice v. Rice, 336 U.S. 674, 675-676, which affirmed Rice v. Rice, 134 Conn. 440, the Sherrer and Coe cases were distinguished on the ground that in the Rice case no personal service was made upon the decedent's first wife, and that she did not in any way participate in the Nevada proceedings. Accordingly, in a controversy over inheritance with a second wife whom the decedent had married following a...