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"FullFaith and Credit shall be given in each State to the

public Acts, Records, and judicial Proceedings of every other

State. And the Congress may by general Laws prescribe the

Manner in which such Acts, Records and Proceedingsshall be

proved, and the Effect thereof."

"And the said records and judicial proceedings, so authenticated,shall have such faith and credit given to them in every court within the United States as they have by law or2 usage in the courts of the State from which they are taken."

The mandatory out-of-state effects of a state's divorce decree depend upon the interpretation which the Supreme Court of the United States gives to the foregoing constitutional provision and the Statute of 1790. Although the Court has had to deal with these propositions throughout its history, its contribution toward the solution of domestic relations problems arising thereunder has not been impressive. The opinions of the Supreme Court as to family law have seemed like episodes in some long judicial soap opera, each one advancing the plot to a degree, but also posing a new set of questions to be resolved upon the next occasion.

A combination of three American legal propositions has operated to make the problem of "migratory divorce" a phenomenon peculiar to the United States: a) A wife can secure a domicil 3 different from that of her husband;4 b) A state A.B. 1940, University of Chicago; J.D. 1942, University of Chicago.

* Assistant Professor of Law, Indiana University School of Law.

1. U. S. CoNsT. Art. IV, § 1.

2. 1 STAT. 122 (1790), 28 U. S. C. § 687 (1946).

3. A definition of domicil, approved by the Supreme Court of the United States, was contained in the charge to the jury in the second Williams case. "Domicil... was that place where a person 'has voluntarily fixed his abode... not for a mere special or temporary purpose, but with a present intention of making it his home, either permanently or for an indefinite or unlimited length of time.'" Williams v. North Carolina, 325 U. S. 226, 236 (1945).

4. RESTATEMENT, CoNFLICT OF LAWS § 28 (1934). In England a married woman retains the domicil of her husband even if she has obtained a decree of judicial separation from him. CHEsmE, PRrVATE INTEmATIONAL LAw 237 (3d ed. 1947).

[Vol. 24


which is the domicil of one of the parties to a marriage will grant a divorce ;5 and c) The divorcing state applies its own substantive law of divorce.8 With these propositions in mind unhappily married persons who live in states which have strict policies about divorce are tempted to take advantage of the more liberal laws of another state by removing themselves briefly to the more favorable state and, in that jurisdiction, carefully building up evidence of the mental state necessary to domicil.

The earliest full faith and credit cases which involve divorce, drawing largely upon the ordinary principles of conflict of laws, have made domicil, as the jurisdictional basis for divorce, a part of the federal scheme for mandatory recognition of divorce decrees.7 Full faith and credit need not be given to a decree of divorce unless the decree is granted by the state of domicil.8 But whose domicil? A marriage involves two, and the parties may well be domiciled in different states.

Cheever v. Wilson,9 made it clear that a divorce was entitled to full faith and credit if the state granting it was the domicil of one party and the other spouse had made a personal appearance in the proceeding. According to Andrews v. Andrews,1 the parties to a divorce, neither of whom is domiciled in the divorcing state, cannot by their mutual consent confer such jurisdiction on a court that the ensuing decree must be given full faitl and credit. The doctrine of res judicata apparently did not prevent a party from attacking F.'s divorce decree in F211 on a jurisdictional ground even though both spouses had

–  –  –

appeared in the divorce proceeding and could have litigated the jurisdictional question. After the famous case of Haddock v. Haddock,12 if merely one party appeared before the divorcing court only the state of the "matrimonial domicil" had power to grant a divorce binding in other states. Davis v.

Davis," has modified the Andrews case: If the parties to a marriage appear in the divorce suit and actually litigate the jurisdictional question of domicil, they are bound by the decision. The doctrine of res judicata is applicable to litigated questions of jurisdiction of the subject matter.

In Williams I' 4 the Supreme Court confessed the error of its opinion in Haddock v. Haddock. Any state in which either of the parties to a marriage is domiciled has the power to grant a divorce entitled to full faith and credit. Williams 1i 5 allows the jurisdictional question of domicil to be litigated in F 2, in the case of an ex parte decree, in spite of a formal finding as to domicil by the courts of F.. Four cases decided by the Supreme Court during the October term, 1947,16 have added two new chapters to the nation's oldest family serial.


After about fourteen years of marriage to Edward G.

Sherrer, Margaret E. Sherrer left Massachusetts, on April 3, 1944, for what appeared to be a vacation in Florida. Shortly after her arrival in Florida, Mrs. Sherrer informed her husband that she did not intend to return to him. She secured employment for herself, and on July 6, 1944, she filed a bill of complaint for divorce in a Florida court. Among other things, the bill alleged that Mrs. Sherrer was a bona fide resident of Florida. Mr. Sherrer received notice by mail. He retained Florida counsel who entered a general appearance and filed an answer denying the allegations of Mrs. Sherrer's complaint.

Mr. Sherrer was present at the hearing and testified on the issue of the custody of his children. However, no evidence was introduced by him on the issue of Mrs. Sherrer's domicil

–  –  –

in Florida. The decree of divorce was entered on November 29,

1944. Mrs. Sherrer married Henry A. Phelps two days later and returned to Massachusetts on February 5, 1945.

Later in Massachusetts, Mr. Sherrer sought a judicial declaration that while he was still married to Mrs. Sherrer he might justifiably live apart from his wife, and that he might be permitted to convey his real estate as though he were single." The suit was predicated upon the asserted invalidity of the Florida divorce decree in Massachusetts. The court granted the relief sought. 8 Mrs. Sherrer had never acquired a bona fide domicil in Florida, a question which the Massachusetts court considered itself free to re-examine. The Supreme Court of the United States reversed the Massachusetts court.' 9 Because Mr. Sherrer had filed an appearance in Florida and had participated in the Florida proceedings, Massachusetts was not free to re-examine the question of domicil.

The majority opinion by Mr. Chief Justice Vinson found the divorce proceedings to have been conducted in accordance with the highest procedural standards required by the Due Process Clause. Mr. Sherrer had had the opportunity to present evidence and to litigate all questions, including the issue of domicil, upon which the jurisdiction of a state to divorce is still said to depend. The divorce decree was subject to no infirmities which under the Florida law would render it subject to attack. Although the issue of domicil actually had not been litigated, Massachusetts was bound, under the full faith and credit clause, to give res judicata effect to the jurisdictional finding.

- •. 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

17. The action was brought pursuant to a Massachusetts statute which provides: "A probate court may upon petition of a husband •.. enter a decree that said husband has been deserted by his wife or that he is living apart from her for justifiable cause, and he may thereafter convey his real estate in the same manner and with the same effect as if he were sole... " MASs. GEN. LAWS c. 209, § 36 (1932).

18. The Supreme Judicial Court of Massachusetts affirmed the trial court, 320 Mass. 351, 69 N. E.2d 801 (1946).

19. Sherrer v. Sherrer, 334 U. S. 343 (1948).

1948] MIGRATORY DIVORCE: CHAPTERS III AND IV such collateral attack in the courts of the State which rendered the decree.20 Williams I was distinguished. There the defendant spouse did not appear before the divorcing court and consequently had no opportunity to contest the jurisdictional finding. Andrews v. Andrews was treated as having been drained of vitality by a line of cases, including Davis v. Davis, which had applied the doctrine of res judicata to questions of personal jurisdiction and jurisdiction of the subject matter.21 Failure to litigate the jurisdictional issue is unimportant when a party personally before the court has been afforded the opportunity to do so.

The Chief Justice's opinion recognizes the importance of a state's control over domestic relations. However, because the present cases involved inconsistent assertions of power by two states, the Supreme Court was required to apply the full faith and credit clause of the Constitution and the Statute of 1790 in a mechanical fashion. The Constitution and Statute give the Court no discretion to weigh policies or compare state interests. If Massachusetts policies will be subverted as a result of the Sherrer case, the subversion is merely "part of the price of our Federal system." The very importance of the interests involved in divorce proceedings require as much uniformity and certainty as possible.

In a vigorous dissent, 23 joined by Mr. Justice Murphy, Mr.

Justice Frankfurter reaffirmed his position taken in Williams II. A divorce decree is entitled to full faith and credit only if the divorcing state was in truth the domicil of one of the

–  –  –

parties. The state of domicil has a special relationship to its domiciliaries in respect to matters of domestic relations. By an out-of-state law suit the parties may not foreclose re-examination of the question of domicil by the State of Massachusetts (thus undercutting important state policies) since Massachusetts was not a party to those proceedings. By permitting Mr. Sherrer to raise the jurisdictional question Massachusetts expressed its policy in regard to divorce as surely as if the state had spoken by means of criminal prosecution for bigamy.

In the view of the dissenting opinion, uniformity can be attained by the Supreme Court only by permitting states with lax laws to impose easy divorce policies on all the other states and by giving the parties an open invitation to collusion and perjury. The price is too 'high in view of the quantitatively insignificant number of divorces involved. If reform is needed, the job is for Congress.

Without question, the Sherrer case is the product of a policy designed to avoid the practical complications which result from uncertainty as to marital status. 24 The intended effect of the case and its companion, Coe v. Coe,25 is to clarify the status of many divorces which have been granted in

24. See the remarks of Mr. Justice Jackson made during the course of the oral argument in the present cases: "I am not worried about the courts. At every bar meeting I've attended-and I attend a good many-this thing comes up. Lawyers don't know what in the world to advise their clients. Clients don't know how to dispose of their property; or whether they are divorced or not divorced. People-simple people-have to live by these rules.

If we can't do our job there's nobody insisting on our staying here." 16 U. S. L. WEEK 3123 (Oct. 21, 1947).

25. 334 U. S. 378 (1948). Mr. and Mrs. Coe were domiciled in Massachusetts until May, 1942. In March, 1942, Mrs. Coe secured a decree of separation from her husband in Massachusetts. Thereafter in May, 1942, Mr. Coe went to Reno accompanied by his secretary, Miss Dawn Allen, and her mother. After Mr. Coe filed a suit for divorce, Mrs. Coe came to Nevada in person and filed a cross-complaint for divorce and an answer which admitted Mr. Coe's domicil in Nevada. Both Mr. and Mrs.

Coe personally testified in the Nevada hearing on questions relating to the merits of the divorce but neither of them raised any objection as to the jurisdiction of the court. In September, 1942, the Nevada court entered a decree of divorce in favor of Mrs.

Coe. Miss Dawn Allen and Mr. Coe were married shortly after the decree was entered and returned to Massachusetts. The first Mrs. Coe filed a petition against Mr. Coe in May, 1943, praying that he be adjudged in contempt of court for failing to abide by the terms of the separation support decree. Mr. Coe denied that the separation support decree was still in effect and pleaded the Nevada divorce. Ultimately the Massachusetts courts decided in favor of Mrs. Coe holding that the Nevada decree of divorce was rendered without jurisdiction [316 Mass. 423, 55


1948] Nevada, Florida, or any other state in which liberal grounds for divorce are combined with a short residence requirement.

In the recent emphasis which the Supreme Court has placed upon the practical effects of its decisions in divorce cases decided under the full faith and credit clause, the Court has underscored an element which has not traditionally played a large role in the theory which has grown up in regard to the problem.

As a matter of orthodox theory, jurisdiction to divorce is based on domicil, supposedly because of the peculiar interest which a state has in the marital status of its domiciliaries.

Mr. Justice Douglas set forth this rationale in Williams I:

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