Wymelenberg v. Syman

• Decision Date: 30 June 1971
• Docket Number: Civ. A. No. 70-C-397.
• Citation: 328 F. Supp. 1353
• Parties: Robert J. WYMELENBERG, Individually, and on behalf of all others similarly situated, Plaintiff, v. Joseph M. SYMAN, Family Court Commissioner in and for Milwaukee County, Wisconsin, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

328 F. Supp. 1353

Robert J. WYMELENBERG, Individually, and on behalf of all others similarly situated, Plaintiff, v. Joseph M. SYMAN, Family Court Commissioner in and for Milwaukee County, Wisconsin, Defendant.

Civ. A. No. 70-C-397.

United States District Court, E. D. Wisconsin.

June 30, 1971.

John J. Valenti, Milwaukee, Wis., for plaintiff.

Robert P. Russell, Milwaukee County Corp. Counsel, by John R. Devitt, Asst. County Corp. Counsel, Milwaukee, Wis., for defendant.

Before FAIRCHILD, Circuit Judge, and REYNOLDS and GORDON, District Judges.

OPINION AND ORDER

REYNOLDS, District Judge.

This is an action challenging the constitutionality of Wisconsin Statute § 247.05(3)¹ which requires that before an action for divorce may be commenced, one of the parties must be "a bona fide resident of this state for at least 2 years." Jurisdiction is established under Title 28 U.S.C. §§ 1343 and 2201, and Title 42 U.S.C. § 1983. Pursuant to Title 28 U.S.C. §§ 2281 and 2284, a three-judge court has been impanelled and the Attorney General and Governor of Wisconsin notified. Defendant has moved to dismiss the complaint.

Based on the complaint, affidavits on file, and representations of counsel, it appears that plaintiff is a member of a class composed of bona fide residents of Wisconsin who meet all standards of eligibility for commencing a divorce action except that they have not been residents of the State of Wisconsin for at least two years immediately prior to the commencement of an action to seek a divorce. The defendant is the Family Court Commissioner for Milwaukee County and by law is obligated to advise the trial court as to the merits of the action in a divorce proceeding. Wis.Stat. § 247.15. On May 22, 1970, the plaintiff commenced a divorce action in Milwaukee County Circuit Court. A month later the defendant wrote to the plaintiff to point out that neither he nor his wife appeared to fulfill the two year waiting period requirement of § 247.05(3). On November 24, 1970, the defendant advised the Honorable William R. Moser, Wisconsin Circuit Judge, that the plaintiff failed to meet the jurisdictional requirements for a divorce as outlined in § 247.05(3). After taking evidence, Judge Moser dismissed plaintiff's action for divorce holding that the Circuit Court had no jurisdiction because the plaintiff failed to fulfill the two year waiting period.

Plaintiff has challenged the two year waiting period² requirement of § 247.05(3) as violative of the equal protection and due process clauses of the Fourteenth Amendment. It is our opinion that this argument must prevail and that the motion to dismiss be denied.

The Supreme Court has recently stated that "marriage involves interests of basic importance in our society," Boddie v. Connecticut, 401 U.S. 371, 376, 91 S. Ct. 780, 785, 28 L.Ed.2d 113 (1971), and is a "fundamental human relationship," id. at 383, 91 S.Ct. 780, which represents one of the "basic civil rights of man," Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 18 L.Ed.2d 1010 (1967). Thus, when the state, exercising its established prerogative of overseeing this most important social institution, chooses to limit access to the courts in this area to only one segment of its citizenry, the court is duty bound to carefully weigh the rationales for such limitations and to investigate whether adequate alternatives are available either to the state or to its citizens. Boddie, supra. In the case at hand, Wisconsin by legislation has granted access to its divorce courts to "bona fide residents" who have lived in the state for at least two years but has denied similar access to "bona fide residents," such as plaintiff, who have not yet lived in the state for that length of time.

Barred from divorce, Wisconsin citizens, such as the plaintiff, have only two possible options open to them — either an annulment or a legal separation. Wis. Stat. § 247.05(1). A formal legal separation offers nothing which cannot be arrived at by a private agreement between the spouses without judicial sanction, i.e. physical separation but not an end to the marital bonds. In that the marriage bonds remain intact, physical separation either formal or informal cannot be said to be a meaningful alternative to divorce for those citizens who desire to dissolve the marriage contract. Annulment, while it voids the marriage, likewise cannot be deemed a satisfactory alternative in that the grounds for such a judgment, Wis.Stat. § 247.02, are entirely different from those for divorce. Wis.Stat. § 247.07. Thus, a substantial number of Wisconsin residents who posess grounds for divorce but not grounds for annulment remain barred from the courts simply "because they have recently moved into the jurisdiction." Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331 (1969). Clearly then, Wisconsin has pre-empted "the right to dissolve this legal relationship i.e. marriage without affording all citizens access to the means it has prescribed for doing so." Boddie, supra, 401 U.S. at 383, 91 S.Ct. at 789.

Four state interests are suggested by the lengthy two year waiting period. They are: (1) to deter those with marital problems from entering the state, (2) to maintain marital stability, (3) to assure residence, and (4) to protect the state's reputation. Each interest will be considered.

(1) As a means to deter individuals or families with marital problems from entering the state, the instant statute must clearly fail as it is impermissible for a state to attempt to chill an individual's constitutional right to travel to and settle in the state of his choice. Shapiro, supra; Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941); United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).

(2) While a state may attempt to maintain marital stability among its citizens, "this logic would also require a similar waiting period for long-term residents of the State." Shapiro, supra, 394 U.S. at 637, 89 S.Ct. at 1333. Thus, while this rationale might provide a sound basis for a waiting period running from the date of marriage to the commencement of a divorce action, it cannot provide a rational basis for imposing a two year waiting period on new residents only.

(3) Like the majority of sister states, Wisconsin requires both the establishment of a domicile and the fulfillment of a waiting period before divorce jurisdiction attaches, and in Wisconsin each criteria is separate and distinct from the other. Dutcher v. Dutcher, 39 Wis. 651 (1876); Lucas v. Lucas, 251 Wis. 129, 28 N.W.2d 337 (1947); Strandberg v. Strandberg, 27 Wis.2d 559, 135 N.W.2d 241 (1965); cf. Wis.Stat. § 247.22. The argument that a waiting period is justifiable as evidence of domicile was dismissed in Shapiro. Further, even if it is conceded that waiting periods are of some evidentiary value in determining domicile, under this rationale § 247.05(3) would amount to an irrebuttable presumption³ that a domicile cannot be established in less than two years. "Far less drastic means" of determining domicile are available to a trial court possessing full subpoena powers and the advice of a Family Court Commissioner.⁴

(4) Finally, defendant argues that if the two year waiting period is stricken, Wisconsin's reputation will suffer as it will become a "quickee divorce mill." We emphasize that the issue today is a waiting period requirement used in conjunction with a residence, i.e. domicile, requirement, not just a waiting period or just a domicile requirement alone. As we understand the term "quickee divorce mill," it suggests a jurisdiction which grants divorces to visitors as...