Viernes v. District Court In and For Fourth Judicial Dist., El Paso County, 25670
| Decision Date | 23 April 1973 |
| Docket Number | No. 25670,25670 |
| Citation | 181 Colo. 284,509 P.2d 306 |
| Parties | , 73 A.L.R.3d 424 Myra Ann VIERNES, Petitioner, v. The DISTRICT COURT IN AND FOR the FOURTH JUDICIAL DISTRICT, COUNTY OF EL PASO, State of Colorado, Honorable William M. Calvert, Judge, Respondent. |
| Court | Colorado Supreme Court |
Cole, Hecox, Tolley, Edwards & Hero, Lawrence A. Hecox, Michael R. Bromley, Colorado Springs, Homer H. Clark, Boulder, for petitioner.
Don Shoock, Colorado Springs, for respondent.
Pursuant to C.A.R. 21, an original proceeding was filed to prohibit the district court from proceeding further in an action for dissolution of marriage. The district court held that it had jurisdiction to proceed after the plaintiff-husband established that he was a member of the armed services who was stationed in Colorado for more than ninety days before the suit for dissolution of marriage was filed. We issued a rule to show cause and now make the rule absolute.
Our decision is premised on an interpretation of the Uniform Dissolution of Marriage Act, 1971 Perm.Supp., C.R.S.1963, 46--1--1 et seq. The Colorado statute is patterned after the Uniform Marriage and Divorce Act. See Handbook of the National Conference of Commissioners on Uniform State Laws (1970) pp. 176--222. Specifically, our opinion hinges on the meaning which should be given to the following provisions of the Act:
'(b) The court finds that one of the parties has been a resident of this state, or is a member of the armed services who has been stationed in this state, for ninety days next preceding the commencement of the proceeding, but in no event shall a decree enter prior to ninety days after service of process;
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'(d) To the extent it has jurisdiction to do so, the court has considered, approved, or made provision for child custody, the support of any child of the marriage who is entitled to support, the maintenance of either spouse, and the disposition of property.'
The trial court has interpreted the statute in such a way as to grant every person in the armed services who has been stationed in Colorado for ninety days the righ to obtain a divorce in Colorado. We do not interpret the statute so broadly. In our view, the mere presence of a person in the armed services in Colorado provides an insufficient basis for Colorado courts to assume jurisdiction for the purpose of granting a divorce. A summary of the pertinent facts brings the jurisdictional issue into sharp focus.
The husband, who filed the divorce petition, was a member of the armed services and was stationed in Colorado for more than ninety days. He was not, and is not, a domiciliary of Colorado, and his sole contact with Colorado rests upon his assignment to a military post in Colorado. His wife, who is the defendant, was never in Colorado. She was served with a summons and a petition for dissolution of marriage at her home in Tennessee. The defendant-wife, through her counsel, has appeared specially to contest the jurisdiction and for no other purpose. The children who were born as the issue of the marriage live in Tennessee with the defendant-wife. It is admitted that the defendant-wife was and is domiciled in Tennessee. Tennessee is also admittedly the place where the parties were married and maintained their home. While married, the plaintiff-husband was assigned to duty in the armed services in various foreign countries and in several different states. He is domiciled in Hawaii.
Thus, the plaintiff-husband contends that a member of the armed services who is stationed in Colorado for more than ninety days may cause a Colorado court to hear his claim for divorce. He claims that it is irrelevent that he is a Hawaiian domiciliary and that his wife is domiciled in Tennessee. If we were to follow the plaintiff-husband's argument, the fact that neither of the parties to the marriage was a Colorado domiciliary in this case would be no barrier to the Colorado court's power to enter a decree of divorce. It is clear to us that Colorado has no significant contact with the marriage and does not have jurisdiction to grant a divorce.
The history of divorce legislation and litigation shows that divorce has never been considered to be a simple, transitory personal action. Traditionally, every state has an interest in, and exercises jurisdiction over, marital status to promote the general welfare of its people. The state has an interest both in the formation and the dissolution of a marriage. Marriage is the foundation of the family and of society. As a result, every state as a sovereign has a rightful and legitimate concern in the marital status of those persons who are domiciled within the state. Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366 (1903). See Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948). See generally, R. Leflar, American Conflicts Law § 223 (1968).
Domicile has been the keystone for jurisdiction to determine the marital status. Williams v. North Carolina (I), 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942); Andrews v. Andrews, Supra. Williams v. North Carolina (I), Supra, is authority for the rule that a divorce decree must be granted full faith and credit in every sister state if one of the parties to the divorce was domiciled in the state that granted the decree. Domicile has been held to be a constitutional prerequisite for jurisdiction. Alton v. Alton, 207 F.2d 667 (3d Cir.), dismissed as moot, 347 U.S. 610, 74 S.Ct. 736, 98 L.Ed. 987 (1954). Accord, Jennings v. Jennings, 251 Ala. 73, 36 So.2d 236 (1948). But see, Granville-Smith v. Granville-Smith, 349 U.S. 1, 75 S.Ct. 553, 99 L.Ed. 773 (1955). Moreover, domicile has been held to be so vital to divorce jurisdiction that a sister state may refuse to accord full faith and credit to a divorce decree if it finds that the decree was granted to a party who did not have the requisite jurisdictional ties of domicile. Rice v. Rice, 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957 (1949); Williams v. North Carolina (II), 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); Koscove v. Koscove, 113 Colo. 317, 156 P.2d 696 (1945).
A traditional analysis could perhaps end here and simply declare that without domicile of at least one of the parties, no jurisdiction to dissolve a marriage can exist. Jurisdictional theory, however, is not frozen, and the law has developed along with the needs of society. In place of mechanistic rules to determine jurisdiction, an analysis of the interests and the contacts involved in a controversy more effectively and fairly serves the need of society.
If a state has sufficient contacts with the subject matter and the parties, it may properly act. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Unless suitable contacts do exist, the state may not constitutionally act. Hanson v. Denkla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). To pursue analysis of the interests and contacts, we must focus precisely on the issue in this case.
The very nature of marriage is such that not only is status involved, but also a number of personal rights, duties, and obligations. Welfare of the children and support obligations provide substantial questions in many divorce cases. Jurisdiction to grant a divorce does not automatically include the right to resolve all financial issues between the parties to the marriage. Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957); Estin v. Estin, Supra. Cf., Simons v. Miami Beach First National Bank, 381 U.S. 81, 85 S.Ct. 1315, 14 L.Ed.2d 232 (1965) (). In the Vanderbilt case, the Supreme Court held that although Nevada did have jurisdiction to grant a divorce, Nevada could not modify the rights of the wife to financial support from the husband under New York law when she did not submit to the jurisdiction of Nevada.
The Commentary which was prepared for the Uniform Marriage and Divorce Act also recognizes that not all issues may be before the court in some instances:
'Subsection (a) lists the three findings that a court must make before it has jurisdiction to enter a decree of dissolution of marriage: first, it must find that one party to the marriage has established an appropriate connection with the state; second, it must find that the marriage is irretrievably broken; and finally, to the extent it has jurisdiction to do so, it must have considered and passed on the issues of custody, support, maintenance and property disposition. If the court lacks jurisdiction to act upon any of the matters listed in subsection (a)(3), without acting upon that matter, it may enter a decree of dissolution of marriage. Thus, if the court is acting upon the petition of one spouse only and the other spouse is not subject to the personal jurisdiction of the court, the court lacks jurisdiction to decide issues relating to maintenance, Vanderbilt v. Vanderbilt, 354 U.S. 416 (77 S.Ct. 1360, 1 L.Ed.2d 1456) (1957); Estin v. Estin, 334 U.S. 541 (68 S.Ct. 1213, 92 L.Ed. 1561) (1948); or the distribution of property not before the court, see Fall v. Eastin, 215 U.S. 1 (30 S.Ct. 3, 54 L.Ed. 65) (1909); and may not have jurisdiction, acting alone, to decide issues relating to support, consult the uniform Reciprocal Enforcement of Support Act, or child custody. May v. Anderson, 345 U.S. 528 (73 S.Ct. 840, 97 L.Ed. 1221) (1953); consult the Uniform Child Custody Jurisdiction Act. In such a case, the court has jurisdiction only to dissolve the marriage and it may enter its decree of dissolution after making the findings set forth in subsection (a)(1) and (2).
Handbook of the National Conference of Commissioners on Uniform State Laws (1970) p. 199.
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