Ways' Marriage, In re

• Decision Date: 31 July 1975
• Docket Number: No. 43443
• Citation: Ways' Marriage, In re, 538 P.2d 1225, 85 Wn.2d 693 (Wash. 1975)
• Parties: In re the MARRIAGE OF Raymond A. WAYS, Respondent. Lydia S. WAYS, Petitioner, and The SUPERIOR COURT of the State of Washington FOR KITSAP COUNTY, the Honorable Robert J. Bryan, Judge Thereof, Respondent.
• Court: Washington Supreme Court

Page 693

85 Wn.2d 693

538 P.2d 1225

In re the MARRIAGE OF Raymond A. WAYS, Respondent Lydia S. WAYS, Petitioner and The SUPERIOR COURT of the State of Washington FOR KITSAP COUNTY, the Honorable Robert J. Bryan, Judge Thereof, Respondent.

No. 43443.

Supreme Court of Washington, En Banc.

July 31, 1975.

William R. Garland, Bremerton, for appellant.

H. Dan Austad, Bremerton, for respondent.

HOROWITZ, Associate Justice.

Respondent below, Lydia S. Ways, seeks review by writ of certiorari of an order of the Superior Court in Kitsap County, Washington, denying respondent's motion to dismiss a petition for dissolution of marriage on the ground the court lacked jurisdiction to entertain it.

Petitioner below, Raymond A. Ways, is a member of the United States Navy on active military duty. In October, 1973, pursuant to orders, petitioner reported aboard the USS Enterprise, an aircraft carrier, then undergoing repairs at the Puget Sound Naval Shipyard, Bremerton, Washington. Petitioner remained aboard the USS Enterprise until its departure on February 2, 1974, for the Alameda, California, area.

On November 30, 1973, petitioner filed a petition for dissolution of marriage in the Kitsap County Superior Court. Neither he nor his wife were domiciled in this state.

Petitioner, however, relied on RCW 26.09.030 which provides for jurisdiction to dissolve a marriage 'when a party . . . is a member of the armed forces and is stationed in this state . . .' On February 5, 1974, petitioner's wife, Lydia S. Ways filed a motion to dismiss the dissolution petition for lack of jurisdiction. Before the motion was heard, petitioner ceased being stationed in Washington when, on February 2, 1974, the USS Enterprise departed for the Alameda, California, area. The record fails to show whether petitioner left with his ship. The court denied respondent's motion to dismiss on May 17, 1974.

On June 3, 1974, respondent wife petitioned for a writ of certiorari to review the order denying the motion to dismiss and for a writ of prohibition prohibiting further proceedings in the dissolution action. In the petition for the writ counsel for respondent Lydia S. Ways stated she, together with the couple's four children, resided in Virginia Beach, Virginia, which had been the family home for several years; that neither she or her husband had any connection with the State of Washington prior to her husband's being stationed aboard the USS Enterprise; that because neither of the parties was domiciled in Washington, the Washington court was without jurisdiction to proceed with the dissolution of the marriage.

Respondent conteds RCW 26.09.030, which permits a nondomiciliary member of the armed forces stationed in this state to obtain a dissolution of marriage on the conditions described in that statute, denies respondent (1) due process and equal protection; (2) violates Const. art. 2, § 24, providing '(t)he legislature shall never grant any divorce;' and (3) Const. art. 4, § 6, which provides 'the superior court shall have original jurisdiction in all cases . . . (of divorce)'. For reasons later stated, we reverse the trial court's order.

Const. art. 2, § 24 is inapplicable. The dissolution or divorce decree is not sought or expected from the legislature; it is sought from the superior court pursuant to the grant of the original jurisdiction provided for by Const. art. 4, § 6. The question remaining is whether the state through its superior court in Kitsap County has jurisdiction to decree a marriage dissolution of divorce, neither of the marriage partners being a domiciliary of this state. We uphold RCW 26.09.030 but reverse because of petitioner's failure to comply with its requirements.

The question of whether a state court empowered to grant divorces has jurisdiction so to do unless one or both parties are domiciliaries of the state has created much controversy. See A. Ehrenzweig, Conflict of Laws §§ 71--72 (1962); R. Leflar, American Conflicts Law §§ 223, 225 (1968); R. Weintraub, Commentary on the Conflict of Laws 174--75, 191--94 (1971); Leflar, Conflict of Laws and Family Law, 14 Ark.L.Rev. 47 (1960); Rieke, The Dissolution Act of 1973; From Status to Contract? 49 Wash.L.Rev. 375, 379--82 (1974); Restatement (Second) of Conflict of Laws §§ 70--72 (1972); 24 Am.Jur.2d, Divorce and Separation §§ 246, 250, 264 (1966).

The United States Supreme Court has not yet expressly held that domicile is the sole jurisdictional basis for granting a divorce. However, in dicta the court has stated:

Under our system of law, judicial power to grant a divorce--jurisdiction, strictly speaking--is founded on domicil. Bell v. Bell, 181 U.S. 175 (21 S.Ct. 551, 45 L.Ed. 804); Andrews v. Andrews, 188 U.S. 14 (23 S.Ct. 237, 47 L.Ed. 366). . . . Domicil implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. The domicil of one spouse within a State gives power to that State . . . to dissolve a marriage wheresoever contracted. . . . Divorce, like marriage, is of concern not merely to the immediate parties. It affects personal rights of the deepest significance. It also touches basic interests of society. Since divorce, like marriage, creates a new status, every consideration of policy makes it desirable that the effect should be the same wherever the question arises.

Williams v. North Carolina, 325 U.S. 226, 229--30, 65 S.Ct. 1092, 1095, 89 L.Ed. 1577, 157 A.L.R. 1366 (1945).

In Sasse v. Sasse, 41 Wash.2d 365, 249 P.2d 380 (1952), this court, in explaining why the divorce state must be 'the domicile of the plaintiff,' said at page 365, 249 P.2d at page 381:

(M)arriage is a status that is of peculiar interest to the state which is the domicile of married persons, where, in most instances, family life is conducted permanently. Jurisdiction over this status should be lodged in that state, permitting it to determine, by its laws, the grounds upon which a divorce (termination of the marriage status) shall be granted.

(Citations omitted.) Nevertheless, Mr. Justice Rutledge's dissenting opinion in Williams v. North Carolina, supra, 325 U.S. at 255, 65 S.Ct. at 1107, points out:

The Constitution does not mention domicil. Nowhere does it posit the powers of the states or the nation upon that amorphous, highly variable common-law conception. Judges have imported it. The importation, it should be clear by now, has failed in creating a workable constitutional criterion for this delicate region.

If domicile of at least one of the marriage partners is the only basis for divorce jurisdiction, any decree entered without compliance with domiciliary requirements by at least one of the partners may be void and not entitled to full faith and credit. Alton v. Alton, 207 F.2d 667 (3d Cir. 1953), Vacated as moot, 347 U.S. 610, 74 S.Ct. 736, 98 L.Ed. 987 (1954). Accordingly, if a domiciliary relationship is essential to jurisdiction, members of the armed forces stationed in this state--a substantial class of persons--would be deprived of an opportunity without regard to the merits of their claims to obtain a marriage dissolution. Sasse v. Sasse, supra, 41 Wash.2d at 366, 249 P.2d at 382 points out: 'A person in military service generally cannot lose or gain a domicile because he is stationed at a particular place in the line of duty.'

Recognizing the plight of armed forces personnel, a number of states have enacted statutes to confer jurisdiction upon the courts of the divorcing state to permit armed forces personnel--nondomiciliaries--to obtain decrees of divorce in the state in which they are stationed. ¹ Such statutes have been upheld. Lauterbach v. Lauterbach, 392 P.2d 24 (Alas.1964); Craig v. Craig, 163 Kan. 624, 56 P.2d 464 (1936); Wallace v. Wallace, 63 N.M. 414, 320 P.2d 1020 (1958); Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807 (1959). As stated in Wallace v. Wallace, supra at 417, 320 P.2d at 1022:

Where domicile is a statutory jurisdictional prerequisite it is quite correct to say that jurisdiction for divorce is founded on this concept. It is quite another matter to flatly declare that there may be no other relation between a state and an individual which will create a sufficient interest in the state under the due process clause to give it power to decree divorces.

Lauterbach v. Lauterbach, supra, 392 P.2d at 25 points out: 'Domicile is not the sole jurisdictional basis for divorce unless made so by statute.' Restatement (Second) of Conflict of Laws § 72 (1971) states:

A state has power to exercise judicial jurisdiction to dissolve the marriage of spouses, neither of whom is domiciled in the state, if either spouse has such a relationship to the state as would make it reasonable for the state to dissolve the marriage.

Comment B to § 72 further provides:

If one or both of the spouses are domiciled in the state, the state has a sufficient interest in the marriage status to give it judicial jurisdiction to dissolve the marriage (see §§ 70--71). The domicil of one or of both of the spouses in the state is not, however, the only possible basis of jurisdiction. A state may have a sufficient interest in a spouse by reason of some relationship other than domicil, to give the state judicial jurisdiction to dissolve the marriage. In the present state of the authorities, few definite statements can be made as to what relationships with a state, other than domicil, will suffice. Residence, as distinguished from domicil, by one of the spouses in the state for a substantial period, such as a year, is an adequate jurisdictional basis for the rendition of a divorce. On the other hand, the fact that the spouses were married in the state should not of itself provide an adequate jurisdictional basis. A distinction may ultimately be drawn between situations where both spouses are subject to the personal jurisdiction of the divorce court and where there is jurisdiction over only one...