Spalding v. Spalding

• Decision Date: 22 June 1976
• Citation: 368 A.2d 14,171 Conn. 220
• Court: Connecticut Supreme Court
• Parties: Elizabeth C. SPALDING v. Charles F. SPALDING.

Page 14

368 A.2d 14

171 Conn. 220

Elizabeth C. SPALDING v. Charles F. SPALDING.

Supreme Court of Connecticut.

June 22, 1976.

Louis Parley, West Hartford, for appellant (plaintiff).

Saul Kwartin, Stamford, for appellee (defendant).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LOUISELLE, Associate Justice.

The plaintiff, Elizabeth C. Spalding originally brought this action in two counts, the first claiming a divorce, custody of minor children, child support, alimoney and counsel fees from the defendant, Charles F. Spalding, and the second claiming a temporary injunction to restrain the defendant from pursuing in California an action pending there for dissolution of the marriage. The present action was referred to a state referee, but before it was brought to trial the California Superior Court rendered a judgment of dissolution of the marriage. The plaintiff then amended her complaint by adding a third count which sought a declaratory judgment decreeing that the California judgment was unll and void. She also withdrew her claim for divorce. The second count was not pursued, and the trial proceeded on the third court. The state referee, exercising the powers of the Superior Court, and hereinafter referred to as the court, adjudged the California divorce to be valid. The plaintiff has appealed from the judgment, including in her claims of error the court's subsequent denial of her request for counsel fees.

The plaintiff contends that the California decree was null and void because the defendant was never domiciled in California. The California suit was begun on September 14, 1970. On November 4, 1970, the present action was filed in Supeior Court. On June 11, 1971, the California court granted an interlocutory divorce decree and on August 10, 1971, the decree became final.

The unattacked findings of fact are, in part, as follows: The defendant lived with the plaintiff and their children in Connecticut until 1962, when he moved to New York. In 1964, he obtained an ex parte decree of divorce at Reno, Nevada. That decree was subsequently invalidated by the New York Supreme Court on March 13, 1968, because the defendant was not a bonafide domiciliary of Nevada. On January 1, 1968, the defendant began employment with Lazard Freres whose only office in the United States was in New York City.

On May 11, 1968, the defendant married Amy Sullivan in California. Although they returned to New York to live, Amy maintained ownership of her home in Hillsborough, California, as a residence for her children. In the spring of 1969, the defendant and Amy desired to move permanently to California. During the early summer of 1969, the defendant wanted to find a permanent job in California. By the end of July, 1969, the defendant and Amy had moved from New York to California with all of their personal belongings. During Labor Day weekend in 1969, Amy first experienced the symptoms of the fatal illnes from which she died on December 19, 1969. From September 14, 1969, until Amy's death, the defendant was continually in California carrying on his employment with the exception of possibly one or two days.

After the first indications of Amy's illness, the defendant felt a responsibility for her four children from a previous marriage, and so, immediately after Amy's death, he started caring for them. In 1970, much of his time was spent dealing with them and their problems.

In January, 1970, the defendant and his employer agreed that he could work less than full time and at the end of 1970 there would be a review of his employment situation. During 1970, essentially all of the defendant's work for Lazard Frers involved California business. During that year the defendant had neither an office nor a secretary in New York, and he used his home in California as his business office. All of his work had to be referred to the New York office and new business had to be discussed in conferences held in New York. The directory issued by his employer in 1970 listed the defendant's address as Hillsborough, California.

At the end of 1970, the defendant subleased an apartment in New York for a term of one year beginning January 1, 1971. From July, 1969, to January 1971, the defendant stayed at the River Club when visiting New York because he had no home in the area. After moving into the New York apartment the defendant returned to California once or twice a month, still helping to run the household and helping his stepchildren.

The defendant met Bernice R. Grant in June, 1970. They were together at various times in California in 1970. They became engaged in November, 1970, and were married on August 10, 1971. Shortly after their marriage the defendant and Bernice decided to move to New York. Their decision was prompted by the nature of the defendant's work, Bernice's preference to live in New York and the effect on all the children involved. The bulk of the defendant's personal belongings was not moved to New York until September, 1971, the same month in which he and Bernice arranged to buy an apartment in New York.

In September, 1969, the defendant registered as a voter in California and obtained a California driver's license. His only checking account in 1970 and 1971 was in a California bank. He filed his federal income tax for 1969 and 1970 as a resident of Hillsborough, California. He filed a California income tax return and a nonresident New York income tax return for 1970. During that year he paid California income tax based on his residence in California. On seventeen occasions during 1970, the plaintiff called the defendant at his California home. It is noteworthy that the summons in this case, filed November 4, 1970, describes the residence of the defendant as Hillsborough, California. Many paragraphs in the finding relate to various dates in 1969, 1970 and 1971, indicating the whereabouts of the defendant. It is evident from the finding, without enumerating the dates, that the defendant traveled extensively, but a majority of his time in 1971 was spent in New York.

The California judgment is entitled to full faith and credit if the California Superior Court had proper jurisdiction to render the judgment. Williams v. North Carolina, 325 U.S. 226, 229, 65 S.Ct. 1092, 89 L.Ed. 1577, hereinafter referred to as Williams II. If the difendant was domiciled in California, the court had jurisdiction to dissolve the marriage. ¹ Williams II, supra; Williams v. North Corolina, 317 U.S. 287, 297, 63 S.Ct. 207, 87 L.Ed. 279, hereinafter referred to as Williams I; Taylor v. Taylor, 168 Conn. 619, 621, 362 A.2d 795; White v. White, 138 Conn. 1, 8, 81 A.2d 450; see annot., 28 A.L.R.2d 1303, 1304-17. And durational domicil or residency requirements of the dissolution statutes of the decree-granting state must be met if the effect of the requirement is to limit the court's jurisdiction to grant a divorce to those cases in which the requirement is met. White v. White, supra. The court in the present action concluded that at the institution of the California divorce proceedings the defendant had been a California domiciliary for fourteen months and that this was sufficient to satisfy the jurisdictional requirements of federal and California law ² and to entitle the judgment to full faith and credit. The plaintiff, however, contends that the federal constitution also requires that the defendant must have been domiciled in California on the day the California judgment was rendered. For this proposition she cites Williams I and Williams II; Fsenwein v. Commonwealth ex rel. Esenwein, 325 U.S. 279, 65 S.Ct. 1118, 89 L.Ed. 1608; ³ Litvaitis v. Litvaitis, 162 Conn. 540, 546, 295 A.2d 519; and Rice v. Rice, 134 Conn. 440, 58 A.2d 523, affirmed, 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957.

In the absence of an express statutory provision to the contrary, it is well settled that if the plaintiff in a suit for a divorce satisfies the residency requirements at the time of commencing proceedings, the court's jurisdiction will survive the plaintiff's change of domicil. 24 Am.Jur.2d, Divorce and Separation, § 256; note 7 A.L.R.2d 1414-17; cf. note, 89 A.L.R. 1203.' Baker v. Baker, 166 Conn. 476, 488, 352 A.2d 277, 284. See 27A C.J.S., Divorce, § 74a; see also Michigan Trust Co. v. Ferry, 228 U.S. 346, 353, 33 S.Ct. 550, 57 L.Ed. 867; Boardman v. Boardman, 135 Conn. 124, 132, 62 A.2d 521; Sampsell v. Superior Court, 32 Cal.2d 763, 781, 197 P.2d 739. There is no California statute contrary to the rule in baker. Given such a rule, jurisdiction may be determined as to the day the action is begun without regard to the defendant's domicil when the decree is entered. The federal constitution does not demand more. Andrews v. Andrews,188 U.S. 14, 38, 23 S.Ct. 237, 47 L.Ed. 366; Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804; Long v. State, 5 Terry 262, 44 Del. 262, 274, 65 A.2d 489.

Williams I never reached the issue whether one state could refuse full faith and credit to a sister-state divorce decree upon a finding of no bona fide domicil in the sister state. ⁴ Williams II reached that issue but did not change, or add further requirements to, the method of determining jurisdiction that is based on domicil, despite the opinion's suggestive language in its comment on the instructions given the North Carolina jury. ⁵ Esenwein v. Commonwealth ex rel. Esenwein, supra, dealt with the same issue and, like Williams II, did not change the determination. See Commonwealth ex rel. Esenwein v. Esenwein, 153 Pa.Super. 69, 71, 33 A.2d 675. Furthermore, in Williams II and Esenwein the trial courts found the petitioners had never acquired domicil in the other state.

Turning to the Connecticut cases, the court's language in Rice v. Rice, 134 Conn. 440, 441, 58 A.2d 523, a case involving the recognition of a Nevada divorce decree, supports the plaintiff's position. That language equated domicil on the date of the decree with the proper...