Notre Dame Law Review

Volume 10 | Issue 1 Article 2

11-1-1934

Conflict of Laws in Divorce Cases

Walter B. Jones

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Walter B. Jones, Conflict of Laws in Divorce Cases, 10 Notre Dame L. Rev. 11 (1934).
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 CONFLICT OF LAWS IN DIVORCE CASES
Reasons for Importance of Subject

The subject of Conflict of Laws in Divorce Cases is be-

coming ever r day one of increasing importance.
The large number of states and foreign countries in which
many of our great business corporations, employing thou-
sands of agents and clerks, are conducted requires countless
numbers of their employes to live away from their homes.
Our wealthy classes are finding an increasing pleasure in
travel and temporary sojourns in different parts of the coun-
try. It is not uncommon for a wealthy person to have a win-
ter home in one state, a summer home in another, a game
preserve in yet another, perhaps a residence at a watering
place abroad, and conduct his business in many states and
nations.
The rapid means of transportation which we enjoy in the
United States today affords our people opportunities to trav-
el more and more, and to reside at different times during the
year in several different states. Changes of residence from
state to state are more frequent with us today than ever
before in the history of the country.
Then, too, divorce is a prominent daily topic discussed in
all the newspapers of the country. Unhappily married couples
eagerly read accounts of all divorce trials and soon become
familiar with the laws of the various states. If the statutes
of their own state do not give a cause for divorce on the
facts of their case, or there are statutory requirements re-
garded as burdensome, the unhappily married spouse moves
to another state to get a divorce.
The rules which guide the courts of one state or nation
in the enforcement of rights which have been acquired un-
der the laws of another state or nation, sometimes called
 NOTRE DAME LAWYER

"Private International.Law," are generally discussed under

the term "Conflict of Laws."
While it is true that whatever extraterritorial force a
nation's laws and court decisions may have is purely a mat-
ter of courtesy extended by another state, still this rule of
international courtesy has become in many cases so habitual
as to make its observance for all practical purposes a matter
of international right.

Difficult Questions Presented

The consideration of the rules of Conflict of Laws in
Divorce Cases presents many grave and difficult questions
for solution; and the complexity of the problems laid before
the courts is such as to challenge the best thought of Bench
and Bar.
When matters touching a divorce decree rendered by the
courts of one state come up in another state many conflict
of laws questions may be raised.
The recognition of the decree may be resisted; the effect
to be given an award of custody of children may come be-
fore the court; the effect of a divorce decree on property
rights of the spouses may be in dispute; the meaning of
the full faith and credit clause of the Federal Constitution
may be under study; jurisdiction to award alimony may be
questioned; marital rights in foreign property may be in-
volved; the effect of a limited divorce may be in issue;
questions involving the right of the husband to support the
wife may press for decision; the criminal liability of the
spouses upon remarriage may come up in the criminal
courts,-these and countless other questions equally as im-
portant may present themselves for judicial determination
when the subject of Conflict of Laws in Divorce Cases comes
up for consideration in litigated suits in the courts of the
land.
 CONFLICT OF LAWS IN DIVORCE CASES

Scope of Present Article

No attempt is made in this article to enter upon a highly
technical and theoretical discussion of the rules relating to
Conflict of Laws in Divorce Cases, however inviting the
inquiry may be; nor is it the purpose to attempt to recon-
cile the varied holdings of the courts of the different states,
and to try to discuss each difficult and confusing question
that may come up.
The sole purpose of the article is to state, as far as pos-
sible, the more important rules of law which may be reason-
ably regarded as settled by the weight of authority, and the
rules which commonly come up for application.
The article is intended to be practical, and to give the
busy lawyer engaged in every-day practice a- helpful and
authoritative statement of the fundamental rules governing
questions of Conflict of Laws in Divorce. Cases.

Jurisdictionof Courts for Divorce

It is the general rule in our courts, where the recognition
of a foreign divorce decree is sought in another state, that
the court making the decree shall have jurisdiction of the
defendant, either by service of process, or, if the defendant
be a nonresident, then some method &f notification to him
of the pehdency of the suit must be employed which is rea-
sonably calculated to give him knowledge of the attempted
exercise of jurisdiction and an opportunity to be heard.'
Proper notice to the defendant is a condition precedent to
the exercise of judicial jurisdiction over him. The due proc-
ess clause of the Fourteenth Amendment requires that there
shall be a regular proceeding, in a*competent court, a court
which is clothed with authority to hear and determine the
questions at issue, and which follows an orderly course of
1 Cheely v. Clayton, 110 U. S. 701, 4 Sup. Ct. 328, 28 L. ed. 298 (1883);
RESTATEmENT, CoNTliCT OF LAWS (Am. L. Inst. 1926) § § 82, 83, 118; DIVORCE
AND SEPARATION, 9 R. C. L. § 332.
 NOTRE DAME LAWYER

legal procedure, and gives the party affected full and fair
opportunity to assert his constitutional rights and to make
such defenses as may be allowed by the law of the land.
A failure to give proper notice of the suit to the defendant
would render any decree against him invalid.'

Uniform Divorce JurisdictionAct

The Uniform Divorce Jurisdiction Act, which has been
adopted in a few states, provides," with reference to juris-
diction, that
Section 1. Jurisdiction."Jurisdiction for the purpose of granting a
divorce shall not be exercised unless
(a) The defendant is domiciled in this state, or this state is the
state of the matrimonial domicile; or
(b) The complainant has a separate domicile in this state (the
defendant being domiciled out of the state), and by consent
or owing to the conduct of the defendant such domicile is
the rightful domicile of the complainant.
"If, however, only one of the parties is domiciled in this state and
has acquired such domicile subsequent to the arising of the ground for
divorce, such domicile must have continued uninterruptedly for the
period of one year next preceding the 'bringing of the action."

Law of Domicile Governs

Marriage is a status. The state in which the parties to
the marriage make their home is vitally interested in that
status because it is the foundation for home life. And divorce,
because it terminates the marital status, is a matter in which
the state is interested, and only an act of the law can bring
about a divorce.
So in considering what state law should govern in the
granting of divorces, it has become settled that it should be
the law of that state with which the spouses are most inti-
mately concerned, the place where they dwell and have their
home. Hence, the courts hold that it is the law of the domi-
2 Postal Tel.-Cable Co. v. Newport, 247 U. S. 464, 38 Sup. Ct. 566, 63 L.
ed. 1215 (1917); BLAcK's CONSTruTIONAL LAW (4th ed.) 616.
3 9U. L.A. 134.
 CONFLICT OF LAWS IN DIVORCE CASES

cile which determines whether a marriage shall be terminated

by divorce, and by domicile is meant "the place with which
a person has a settled connection for legal purposes; either
because his home is there or because the place is assigned to
him by law." 4 The word "domicile" carries the idea of a
permanent place of abode.
So it is the accepted doctrine that, as actions for divorce
deal with the status of the parties, jurisdiction is dependent
upon the domicile of the parties at the time the decree is
rendered.'
Or, as the law appears in the Restatement of Conflict of
Laws,' "A state can exercise through its courts jurisdiction
to dissolve the marriage of spouses both domiciled in the
state."

Residence within the State

Some states require, in addition to a statutory ground for
divorce, that the party complaining shall have resided in the
state for a certain period of time, months or years.
Under Comment b., Section 117, of the Restatement of
Conflict of Laws, it is said that "The requirement that the
residence must have continued for a certain number of
months or years is not jurisdictional, in the sense in which
that word is used in the Restatement of this Subject; and
the finding of the court on the length of residence is con-
clusive in the courts of another state, provided the jurisdic-
tional requirement of domicile at the time suit is brought
is satisfied."
Some courts, however, hold that residence within the state
for the time prescribed is a jurisdictional prerequisite to a
valid decree.7
4 GOODRICH, CONFLICT OF LAWS (1927) 20, 21; RESTATEmmNT, CONFLICT OF
LAWS, § 10.
5 DIVORCE, 19 C. J. § 835; MADDEN, DOamEsTIc RELATIONS (1931) 312.
6 § 117.
7 Martin v. Martin, 173 Ala. 106, 55 So. 632 (1911) ; Bell v. Bell, 181 U. S.
175, 21 Sup. Ct. 551, 45 L. ed. 804 (1900).
 NOTRE DAME LAWYER

The same rule is laid down in Jacobi v. Jacobi,8 where it

is held that a decree of divorce rendered in a state which
requires a residence therein for the prescribed time by the
party complainant is invalid if the party obtaining the de-
cree was not a resident for the length of time required.
Simulated Residence for Divorce
The full faith and credit clause of the Federal Constitu-
tion is not violated by the refusal of a state court to give
effect to a foreign decree of divorce obtained by one who has
temporarily left the state for the purpose of obtaining a
divorce for a cause which occurred in the state while the
parties resided there, and which wa* not a ground for
divorce in the home state.9
In Cooley's Constitutional Limitations 1" that great au-
thority says:
"We conceive the true rule to be that the actual, bona fide residence
of either husband or wife within a state will give to that state au-
thority to determine the status of such party, and to pass upon any
question affecting his or her continuance in the marriage relation, ir-
respective of the locality of the marriage, or of any alleged offense;
and that any such court in that state as the legislature may have au-
thorized to take cognizance of the subject may lawfully pass upon
such questions, and annul the marriage for any cause allowed by the
local law. But if a party goes to a jurisdiction other than that of his
domicile for the purpose of procuring a divorce, and has residence
there for that purpose only, such residence is not bona fide and does
not confer upon the courts of that state or country jurisdiction over
the marriage relation, and any decree they may assume to make
would be void as to the other party."
The like principle is recognized in the familiar case of
Haddock v. Haddock, "1where Mr. Justice White, speaking
8 45 App. D. C. 442 (1916).
9 Andrews v. Andrews, 176 Mass. 92, 57 N. E. 333 (1900), afftd, 188 U. S.
14, 23 Sup. Ct. 273, 47 L. ed. 366 (1902); DIVoRCE, 19 C. 3. § 836.
10 (8th ed. 1927) 848, 849.
11 201 U. S. 562, 26 Sup. Ct. 525, 50 L. ed. 867, 5 Ann. Cas. 1 (1905). See,
also, Lister v. Lister, 86 N. J. Eq. 30, 97 AtI. 170 (1916); Walker v. Walker, 125
Md. 649, 94 Atl. 346, Ann. Cas. 1916B, 934 (1915); Gettys v. Gettys, 3 Lea
(71 Tenn.) 260 (1879); Diggs v. Diggs, 288 Fed. 262 (1923); Bell v. Bell,
op. cit. supra note 7.
 CONFLICT OF LAWS IN DIVORCE CASES

for the Court, states this proposition as irrevocably con-

cluded by the previous decisions of that Court:
"Where the domicil of matrimony was in a particular state, and
the husband abandons his wife and goes into another state in order
to avoid his marital obligations, such other state to which the hus-
band has wrongfully fled does not, in the nature of things, become a
new domicil of matrimony, and, therefore, is not to be treated as the
actual or constructive domicil of the wife. . . . 'The general rule is,
that a voluntary separation will not give to the wife a different
domiciliation in law from that of her husband. But if the husband, as
is the fact in this case, abandons their domicil and his wife, to get rid
of all those conjugal obligations which the marriage relation imposes
upon him, neither giving to her the necessaries nor the comforts suit-
able to their condition and his fortune, and relinquishes altogether his
marital control and protection, he yields up that power and authority
over her which alone makes his domicil hers.'"
In Ruling Case Law' 2 it is said that "a state may forbid
the enforcement within its borders of a decree of divorce pro-
cured by its own citizens, who, whilst retaining their domicil
in the prohibiting state, have gone into another state to
procure a divorce in fraud of the laws of the domicil. Each
state has exclusive jurisdiction over its citizens concerning
the marriage tie and its dissolution, and consequently has
authority to prohibit them from committing a fraud upon
the law of their domicil by temporarily sojourning in an-
other state, and there, without securing a bona fide domicil,
procuring a decree of divorce."

Section 119, Restatement of Conflict of Laws

This view of the law on the subject is also contained in
the Restatement of Conflict of Laws, 3 where it is declared:
"A state can exercise through its courts jurisdiction to dissolve the
marriage of spouses of whom one is domiciled within the state and the
other is domiciled outside the state, if
(a) the spouse who is not domiciled in the state
(i) has consented that the other spouse acquired a separate
home; or
12 DIvoRcE AND SEPARATiox, 9 R..C. L. 518.
13 § 119.
 NOTRE DAME LAWYER

(ii) by his or her misconduct has ceased to have the right

to object to the acquisition of such separate home; or
(iii) is personally subject to the jurisdiction of the state
which grants the divorce;
or
(b) the state was the last state in which the spouses were domi-
ciled together as man and wife."

Decree on Substituted Service

In Crimm v. Crimm "4the court states the principles of law
which are applicable where there was substituted service on
the defendant and quotes approvingly from Corpus Juris' 5
as follows:
"'The Supreme Court of the United States has now definitely de-
cided that the courts of the state of the last matrimonial domicile may
grant a decree of divorce without personal service of process upon,
or the appearance of, defendant therein, where service of process is
made in accordance with the laws of that state, and that such a de-
cree is entitled to full faith and credit in the courts of all the states
of the Union.'"
And the court then says:
"But the same text, supported by the same authority, correctly
states that 'Where the state of plaintiff's domicile is not also the
matrimonial domicile, a decree of divorce based upon substituted serv-
ice and without personal jurisdiction over defendant, although en-
forceable in the jurisdiction where rendered, is not entitled to obliga-
tory enforcement in other states in virtue of the full faith and credit
clause of the Federal Constitution.'
"But, on principles of comity, such decrees are generally recognized
as valid and binding in other states, when they do not contravene
good morals or public policy. 19 Corp. Jur. 374 (§ 841); 9 R. C. L.
516, § 337. An excellent discussion of the rationale and practice of
this comity will be found in Joyner v. Joyner, 131 Ga. 217, 62 S. E.
182, 18 L. R. A. (N. S.) 647, 127 Am. St. Rep. 220. In Alabama this
rule of comity undoubtedly prevails, but it does not require the courts
of this state to recognize as valid a judgment of a sister state on a
showing of jurisdiction which would not support a domestic judgment
of the same character."
14 211 Ala. 13, 99 So. 301 (1924).
15 DIORCE, 19 C. J. § 841.
 CONFLICT OF LAWS IN DIVORCE CASES

Where Neither Party Domiciled in State

In the Restatement of Conflict of Laws 16 it is declared
that "A state cannot exercise through its courts jurisdiction
to dissolve a marriage where neither spouse is domiciled
within the state."
This is the law because the action of the court rendering
the divorce decree dissolves the marital status of the parties,
and is, therefore, a proceeding in rem; hence, the thing to be
acted on, the marital status, must be within the jurisdiction
of the court, if the decree is to be recognized under the full
faith and credit clause of the Federal Constitution.1"
The courts hold that jurisdiction in divorce cases is not
a personal matter to be conferred by the consent of the
parties. 8
And even the appearance of the parties will not give the
court a jurisdiction which will be recognized if neither of the
parties is domiciled there.
The leading case on this subject is Andrews v. Andrews, 9
where the United States Supreme Court held that a state
may refuse the enforcement, within its own borders, of a
decree of divorce procured by one of its own citizens, who,
while retaining his domicile in one state, enters into another
state to procure a divorce in fraud of the law of his domicile.
In this case the husband and wife married in Massachusetts
and lived there together for three years. In 1891 the hus-
band, then domiciled in Boston, went to South Dakota to ob-
tain a divorce for a cause which occurred in Massachusetts
while the parties resided there, and which cause did not
authorize a divorce in the courts of Massachusetts. The hus-
band filed a petition for a divorce in South Dakota and
stayed there, personally, the period of time necessary under
the laws of South Dakota to claim a domicile. He and his
wife never lived together in South Dakota. She received
16 § 118.
17 DIvORCE AND SEPARATION, 9 R. C. L. § 331.
18 Andrews v. Andrews, op. cit. supra note 9.
19 Op. di. supra note 9.
 NOTRE DAME LAWYER

notice of the suit, appeared by counsel, denied that the hus-

band was a bona fide resident of South Dakota, denied that
she had deserted him, and set up cruelty on his part towards
her. The case was settled by an agreement signed by the
wife and consented to by the husband, and the wife re-
quested her counsel to withdraw her appearance in the suit.
A few days later the decree was granted and the husband
returned to Massachusetts. In Massachusetts the court re-
fused to give full faith and credit to the South Dakota di-
vorce because of a Massachusetts law which declared that
"A divorce decreed in another state or country according to
the laws thereof, by a court having jurisdiction of the cause
and of both parties, shall be valid and effectual in this Com-
monwealth; but if an inhabitant of this Commonwealth goes
into another state or country to obtain a divorce for a cause
occurring here while the phrties resided here, or for a cause
which would not authorize a divorce by the laws of this
Commonwealth, a divorce so obtained shall be of no force
or effect in this Commonwealth." 20 The Supreme Court of
the United States sustained this action and held that there
was no violation of the full faith and credit clause of the Fed-
eral Constitution by the Massachusetts court in obeying the
command of the state law copied above. And the court held
that as neither of the parties resided in the state whose court
granted the divorce, there was no jurisdiction, and that the
parties could not confer jurisdiction by consent or even ap-
pearance so as to authorize a valid decree of divorce.
Inasmuch as the state has exclusive jurisdiction over the
marital status of its citizens, the court of a foreign state has
no jurisdiction to decree a divorce between parties where
neither is domiciled or resides within the state of the fo-
rum. 2 ' Such a decree, if granted, will not be recognized by
virtue of the full faith and credit clause of the Federal Con-
stitution. 2
20 GEN. LAWS OF MAss. (Tercentenary ed. 1932) c. 208, § 39.
21 DIVORCE AND SEPARATION, 9 R. C. L. § 333.
22 Bell v. Bell, op. cit. supra note 7.
 CONFLICT OF LAWS IN DIVORCE CASES

One Party Domiciled in the State

Most of the difficult questions in Conflict of Laws arise
when a divorce decree is granted at the domicile of one party
only.
It is held generally that a decree of divorce rendered at
the domicile of one of the parties is entitled to recognition
elsewhere, even though the other party was not before the
court rendering the decree. But there is quite a conflict of
opinion as to whether a court has such jurisdiction as will
entitle its decree to be recognized in other states by the usual
rules of international comity, or will compel other states to
give the decree full faith and credit-under the Federal Con-
stitution.
As Professor Madden notes,23 "The conflict in this class
of cases grows out of the difference of opinion as to the
nature of the proceeding for divorce, viz., whether it is a
proceeding in rem or-a proceeding in personam." Professor
Madden makes this interesting and helpful statement:2"
"It is evident that, in cases where only one party is domiciled in
the state where divorce is sought, there is only partial jurisdiction of
the res. On the view the courts have taken of the nature of divorce
proceedings as in rem or in personam depends the decision when the
question of the extraterritorial effect of the decree has arisen. In some
states the courts, regarding the proceeding as one in rem, have held
that the court has jurisdiction of the res and that only such notice
to the non-resident defendant is necessary as is required by the local
law, and that the decree so rendered is entitled to recognition in all
courts.
"In New Jersey and a few other states the courts have taken the
position that a proceeding for divorce is quasi in rem, not requiring
actual personal service within the jurisdiction of the court, and that
the service is stifficient to render the decree binding extraterritorially
if the best practicable service is made, such as service by mail or per-
sonal service outside the territorial jurisdiction of the court.
"The courts of New York and some other states have adopted the
contrary rule, and, on the theory that the proceeding for divorce is
28 MADDEN, op. Cit. supra note 5, at 315.
24 MADDEN, op. cit. supra note 5, at 315, 3160 317, 318.
 NOTRE DAME LAWYER

in personam, have held that a divorce obtained in a state where the

plaintiff alone is domiciled is of no extraterritorial effect, if the de-
fendant was not personally served with notice within the jurisdiction
of the court granting the divorce, or did not voluntarily appear and
submit to the jurisdiction, unless the state of the former was the
matrimonial domicile of the parties, in which case constructive service
by.publication is sufficient. The New York courts do not, apparently,
draw their strict line except as against divorces rendered against a
New York resident, or a resident of another state holding similar views.
"This conflict of view of course results in the unfortunate situa-
tion that persons may be considered husband and wife in one state,
and unmarried in another, with the obvious consequences as to their
rights in each other's estates, their duty and right to support, their
criminal liability upon remarriage, etc.
"The only power to prevent this confusion lay in the Supreme
Court of the United States, in applying the 'full faith and credit'
clause of the Constitution. But any hope in that direction was dis-
appointed by the decision in Haddock v. Haddock, where it was held
that the New York courts could, without infringing the Constitution,
refuse recognition to a Connecticut decree of divorce at the domicile
of the husband alone, which was not the matrimonial domicile, the
wife being domiciled in New York and served only by publication.
The court did not overrule its earlier decisions that if the added
elements of personal service or appearance by the defendant or the
matrimonial domicile had been present, the divorce would be entitled
to full faith and credit in all states, and presumably they are still
law."
Mr. Justice Holmes, in Williamson v. Osenton,25 held that
a wife who has justifiably left her husband and removed to
another state, with no intention of living elsewhere, thereby
acquires a domicile in the latter state so that she may main-
tain an action in the Federal courts against a citizen of the
state in which her husband resides.26

Personal Appearance by Defendant

We have said that the rule is that a divorce decree ren-
dered where neither party is domiciled will not be recognized
25 232 U. S. 619 (1913).
26 See Note to the case of Carty v. Carty, in 38 L. R. A. (N. S.) 297, on
the right of the wife to acquire a separate domicile for the purpose of a divorce
suit by her.
 CONFLICT OF LAWS IN DIVORCE CASES

elsewhere, even if both spouses were before the court. How-

ever, there are recent decisions to the effect that a personal
appearance by the defendant will eliminate any objection
against a decree rendered at the domicile of one party only.27
However, personal appearance is not sufficient if it be for
the sole purpose of moving to question the court's jurisdic-
tion.2"
Constructive Service
In one of the volumes of the Lawyers' Reports Anno-
tated 29 there is a very exhaustive annotation on the extra-
territorial effect of a decree of divorce rendered upon con-
structive service. The case annotated is Perkins v. Perkins,80
where the Massachusetts court held that the domicile of an
innocent wife is not affected by the husband deserting her
and removing to another state, and that the courts of the
matrimonial domicile, which is retained by the wife, inno-
cent of matrimonial wrong, who was deserted by her hus-
band, will not recognize, on the principle of comity, the di-
vorce secured by the husband in another state without notice
to the wife. In this case the husband and wife were mar-
ried and had their domicile in Massachusetts until 1912,
when the husband deserted the wife, went to Georgia and
obtained a divorce under the laws of that State by giving
notice to the wife, but she never received notice of the pro-
ceedings. The wife sued the husband for divorce in 1915.
He set up as a defense the decree of the Georgia court, ob-
tained in 1914. The Massachusetts court refused to give
full faith and credit to the Georgia decree because the
Georgia court did not have jurisdiction over both of the
parties.
27 Rupp v. Rupp, 156 App. Div. 389, 141 N. Y. S. 484 (1913); Richards v.
Richards, 87 Misc. Rep. 134, 149 N. Y. S. 1028 (1914); Pearson v. Pearson, 107
Misc. Rep. 19, 176 N. Y. S. 626 (1919); Bidwell v. Bidwell, 139 N. C. 402, 52
S. E. 55, 2 L. R. A.. (N. S.) 324, 111 Am. St. Rep. 797 (1905).
28 Weaver v. Weaver, 160 N. Y. S. 642 (1916).
29 1917B, 1028.
30 113 N. E. 841 (Mass. 1916).
 NOTRE DAME LAWYER

Nevada Divorces
In the recent case of Di Brigida v. Di Brigida I" it was
held by the Court of Errors and Appeals of New Jersey that
the validity of a divorce decree granted to the husband in
Nevada depends upon whether the husband went to Nevada
for the purpose of evading the divorce statutes of New Jer-
sey; and that if a divorce decree was procured by fraud up-
on the Nevada court, the New Jersey court could inquire
whether the husband was in fact a resident of Nevada at
the time he brought suit for divorce there. In that case the
Nevada decree was held void as a fraud on the Nevada
court, the defendapt not disclosing to that court that he was
a resident of New Jersey, with no intention of acquiring a
domicle in Nevada.

Mexican Divorces
The validity of a divorce secured in Mexico came up be-
fore the Supreme Court of Albany County, New York, in
the case of Rickman v. Rickman,82 where the wife, suing
the husband for separation, moved for an injunction to
restrain him from procuring a divorce in Mexico. The court
held that a divorce obtained by the husband in Mexico, on
a ground not recognized in New York, would not affect the
wife, who did not submit to the jurisdiction of the Mexican
court, was never served with process, and never appeared
in that action.

Judge Sibley's Summarization

In the following paragraphs, Judge Sibley, of Georgia, in
the case of De Bouchel v. Candler," 8 has sought to summa-
rize the rules of law upon the subject. He says:
"1. A decree of divorce, void under the laws of the state where
granted, is void everywhere, and is subject to collateral attack.
31 172 AtI. 505 (N. J. 1934).
82 148 Misc. Rep. 387, 266 N. Y. S. 513 (1933)
88 296 Fed. 482, 485, 486 (D. C. Ga. 1924)
 CONFLICT OF LAWS IN DIVORCE CASES

"2.The state of the domicile of the married pair at the time of

their separation is the 'matrimonial domicile.' That state has first and
full jurisdiction over the question of divorce and its incidents. A de-
cree there rendered, on regular service therein of the defendant, fixes
the personal rights and the matrimonial status of both parties, and
must have full faith and credit in all other states.
"3. Should one party depart from the state of the matrimonial
domicile, whether it be the party at fault or not, the jurisdiction of
that state to decree a divorce and fix the status of the party remaining
there is unaffected;' though the only service be substituted service, and
such a decree regularly granted there is entitled to full faith and credit
in all other states.
"4. Should both parties permanently remove from the matrimonial
domicile, that domicile perishes, and the jurisdiction peculiar thereto
lapses. It accompanies neither spouse. The state of the matrimonial
domicile no longer has any concern or jurisdiction in the premises.
No other state succeeds to its rights.
"5. If either spouse remove to another state, animo manendi, and
acquires there a domicile, a jurisdiction arises in such state, based on
its interest in, and the right to fix, the matrimonial status of its .new
-inhabitant, in virtue of which it may decree such status. After such
length of residence as it may fix, and for such causes as it may allow,
a divorce may be granted effective within such state; but, if made on
substituted service, and perhaps when on personal service if in evasion
of the laws of another state, it is not entitled to full faith and credit
in other states, but will by comity be recognized, if not detrimental to
their policy or interests. "
"6. A state in which an applicant for.divorce is mere sojourner
and in which the other party is not domiciled, has no jurisdiction to
grant a decree on substituted service, but is a mere meddler; nd such
a decree, even authorized by its own laws, is not entitled to full faith
and credit elsewhere as a matter of right, and should not be recognized
by comity because directly tending to overthrow the power of every
state to deal with the matrimonial status of its own citizens.
"7. The actual domicile of one party or the other in the state in
which a decree of divorce is granted being thus essential to the juris-
diction to make it, whether such domicile in fact exists may be col-
laterally inquired into when the decree is sought to be used in another
state. If it clearly appears that such domicile was lacking, the decree
will be treated as a nullity, and the status of the parties unaffected
thereby.
"8. The finding of the fact of domicile by the court making the
decree raises a presumption that it existed. After a lapse of time, and
 NOTRE DAME LAWYER

especially after the rights of other parties have intervened on the

faith of the decree, the clearest and most satisfactory proof should
be required to overcome the presumption. In other circumstances less
convincing evidence may suffice."

Impeaching Foreign Decree

A foreign decree of divorce may be collaterally impeached
if it was procured by fraud upon the legal rights of the party
against whom it was rendered. 4 For instance, where the
acknowledgment of service of process in a suit in one. state
against a resident of another was insufficient to confer juris-
diction, because such acknowledgment was made in igno-
rance of its real meaning and was obtained by fraud and de-
ception, the court allowed the decree to be collaterally at-
tacked by the defendant when questioned in another state."5
It is also held that if the court granting the divorce decree
erroneously finds that one of the parties was domiciled in
the state, this will not prevent the court of another state
from reviewing the facts, since it is jurisdictional. 6
Wherever there is want of jurisdiction because the court
is without jurisdiction, either of the subject matter of the
suit, or of the person of the defendant, the decree in an-
other state may be collaterally attacked, and this without
violating the full faith and credit clause of the Federal Con-
stititution.3 7
The rule is well expressed in Corpus Juris,3s where it is
stated: -
"In fact it has been said that courts generally have permitted for-
eign divorce decrees to be impeached 'for want of jurisdiction,' when
other judgments could not have been similarly attacked, because of
reluctance to permit foreign courts to fix the marital status of resident
citizens, and because of the peculiar character of the marriage rela-
34 DIVORCE AND SEPARATION, 9 R. C. L. § 340.
85 Ingram v. Ingram, 143 Ala. 124, 42 So. 24 (1905).
36 MADDEN, op. cit. supra note 5, at 312; Andrews v. Andrews, op. cit. supra
note 9.
37 German Savings & Loan Society v. Dormitzer, 192 U3. S. 125, 24 Sup.
Ct. 221, 48 L. ed. 373 (1903).
88 DrvORCE, 19 C. J. § 845.
 CONFLICT OF LAWS IN DIVORCE CASES 27

tion. Thus the validity of the decree may be overcome by proof that
the parties were not domiciled within the territorial jurisdiction of
the foreign court; and a foreign divorce may be attacked by showing
that it was granted to a nonresident plaintiff, but there are cases to
the contrary, the rule being laid down that, where the jurisdictional
facts with respect to residence are litigated in the' court of the state
in which the decree of divorce is rendered, with both parties before
the court, the decree cannot be questioned collaterally in another
jurisdiction with respect to such jurisdictional facts, unless the decree
was obtained by fraud."

Decrees of Limited Divorce

With reference to decrees of limited divorce, sometimes
called judicial separation, or divorce a mensa et thoro, the
rule is that such a decree does not dissolve the marriage
bond, but makes important changes with respect to the
rights and obligations of the parties. The courts hold that
a decree of judicial separation rendered by the courts of one
state must be given full faith and credit in the courts of an-
other state under. the same circumstances in which a decree
of absolute divorce must be so recognized. 9
If a decree of judicial separation is rendered at the mat-
rimonial domicile, it must be given full faith and credit else-
where. 0
There is, however, the case of Pettis v. Pettis,41 where it
was held that as a decree of divorce a mensa et thoro does
not affect the status of the parties, it cannot be regarded as
a decree in rem, but must be regarded as personal action
which cannot be recognized in another state, even as a
matter of comity: The decree was based on the personal
jurisdiction over the defendant. The court, therefore, as
against a nonresident, nonappearing defendant, denied ex-
traterritorial effect to the decree.

39 GOODRICH, op. cit. supra note 4, at 299, 300, 301.

40 Thompson v. Thompson, 226 U. S. 551, 33 Sup. Ct. 129, 57 L. ed. 347
(1912).
41 91 Conn. 608, 101 AtI. 13, 4 A' L. R. 852 (1917).
 NOTRE DAME LAWYER

Full Faith and Credit Clause

Article IV, Section 1, of the Federal Constitution, de-
clares that "full faith and credit shall be given in each state
to the . . . . judicial proceedings of every other state." In
considering this requirement, which establishes a rule of
evidence rather than of jurisdiction,42 we must remember
that it is necessarily to be interpreted along with other pro-
visions of the Federal Constitution; and, therefore, no state
can obtain in the tribunals of other jurisdictions full faith
and credit for its judicial proceedings if these are wanting
in the due process of law enjoined by the fundamental law. 3
The effect of this requirement of full faith and credit by
the Federal Constitution is that when a court of a sister
state has rendered a judgment with jurisdiction over the
person of the defendant, such judgment, when duly pleaded
and-proved, is conclusive proof of the rights thereby ad-
judicated."
It is conclusive on the merits in the courts of every other
state, when made the basis of an action, and in such action
the merits can not be inquired into."
And the recognition which the courts of one state give to
the judgments of a court of a sister state in divorce pro-
ceedings depends upon the rulings of the Supreme Court of
the United States, whose construction of the United States
Constitution is final and binding. 6
There are two leading cases on the question of recogni-
tion which the Federal Constitution demands, when the de-
42 Wisconsin v. Pelican Ins. Co. of New Orleans, 127 U. S. 291, 8 Sup. Ct.
1370, 32 L. ed. 239 (1887).
43 Old Wayne Mut. L. Asso. v. McDonough, 204 U. S. 8, 27 Sup. Ct. 236,
51 L. ed. 345 (1906); Wetmore v. Karrick, 205 U. S. 141, 27 Sup. Ct. 434, 51
L. ed. 745 (1906) ; International L. Ins. Co. v. Sherman, 262 U. S. 346, 43 Sup.
Ct. 574, 67 L. ed. 1018 (1922).
44 Huntington v. Attrill, 146 U. S. 657, 685, 36 L. ed. 1123, 1134 (1892);
Everett v. Everett, 215 U. S. 203, 30 Sup. Ct. 70, 54 L. ed. 158 (1909) ; D'Arcy
v. Ketchum, 11 How. 165, 13 L. ed. 648 (1850).
45 Sistare v. Sistare, 218 U. S. 1, 30 Sup. Ct. 682, 54 L. ed. 905 (1909).
46 GoooRICH, op. cit. supra note 4, at 293, 294.
 CONFLICT OF LAWS IN DIVORCE CASES

cree is rendered at the domicile of one party only, and Pro-

fessor Goodrich, in his text,47 states their holdings admirably
in these words:
"The first is Atherton v. Atherton [181 U. S. 155, 21 Sup. Ct. 544,
45 L. ed. 794], decided in 1901. The parties were married in New
York and immediately went to live in Kentucky, where the husband
had lived prior to his marriage. Later the wife left the husband and
returned to New York to live. In that state she sued the husband for
a divorce from bed and board, alleging cruel and inhuman treatment.
The defendant's answer set up a decree of divorce which he had ob-
tained in Kentucky, after the wife had left him, on the grounds of
desertion. She was not served personally in that action in Kentucky,
nor had she appeared, but notice of the proceedings had been sent
her in accordance with the Kentucky statute. The New York court
held that the Kentucky decree was inoperative against the wife and
gave judgment in her favor. The judgment was reversed by the United
States Supreme Court on the ground that full faith and credit had
been denied the Kentucky decree.
"The court, in confining its decision to the facts before it, men-
tions the fact that Kentucky was the only matrimonial domicile of
husband and wife.
"The other leading case is Haddock v. Haddock [201 U. S. 562,
26 Sup. Ct. 525, 50 L. ed. 867], which came five years later. The part-
ies were married in New York, where both lived at the time. The hus-
band went to Connecticut, established his domicile there, and secured
a divorce in that state, .the absent wife being served by publication
only. Later the wife brought a separation suit, against Haddock in
New York. He set up, in defense, the decree he had received in Con-
necticut, This was rejected by the court in the New York proceedings.
Upon final appeal to the United States Supreme Court, it was held
that there was no violation of the requirement of full faith and
credit." 48
The Uniform Divorce Jurisdiction Act 4 9 provides, with
reference to the decrees of the courts of another state, thait
"Full faith and credit shall be given in all the courts of this
state to a decree of divorce by a court of competent juris-
diction in another state, territory or possession of the United
47 GooRIcH, op. cit. supra note 4, at 293, 294.
48 A very interesting discussion and analysis of the Haddock case is con-
tained in an article entitled "Mr. and Mrs. Haddock," by Hamilton Vreeland, Jr.,
in 22 A. B. A. J. 568 (September, 1934).
49 9 U. L. A. 134, §§ 2, 3.
 NOTRE DAME LAWYER

States when the jurisdiction of such court was based upon

provisions not inconsistent with the conditions prescribed in
this act, even though such decree is not entitled to full faith
and credit under the constitution of the United States."
It is provided further that "Nothing in this Act contained
shall affect existing rules of law as to obtaining jurisdiction
over the person of the defendant."
This Act does not conflict with the decision in Haddock
v. Haddock," which it recognizes. But the Act goes further
and provides that a state, after substituted service on a
person, may authorize a decree of divorce which will be
good within the state; and by comity may recognize decrees
of other states granted in like .manner.

Custody of Children
It is the general rule that jurisdiction to award the cus-
tody of children in a divorce suit lies with the court at the
domicile of the children, and the great weight of authority
holds that the decree is conclusive as to all matters up to
the time of its rendition, and will be recognized and given
effect in another state.51
A very complete discussion of the effect in one state of the
decree of a foreign court awarding the custody of children
in a divorce action is found in Corpus Juris,52 where it is
stated, in substance, that jurisdiction in such cases is with
the courts at the domicile of the children, and that decrees
by such courts should be considered as conclusive in other
courts as to all matters up to the time of the rendition of
the decrees.
The Restatement of Conflict of Laws " states the rule
to be that in any state into which the child comes, upon
proof that the custodian of the child is unfit to have control
50 Op. cit. supra note 11.
51 GOODRICH, op. cit. supra note 4, at 306.
'52 DIVORCE, 19 C. J. § 831.
53 § § 155, 156.
 CONFLICT OF LAWS IN DIVORCE CASES

of the child, the child may be taken from him or her and
given while in the state to another person. Except as thus
stated, when the custody of a child has been awarded by the
proper court to either parent, the rights of that parent to
the custody of the child will be enforced in other states.
The courts hold that the decree awarding custody of chil-
dren is conclusive only as to matters which happened prior
to the rendition of the decree, and would not govern when
a change of circumstances could be shown the court.
Professor Goodrich, noting this rule, says that as the find-
ing of changed circumstances is one that "can easily be made
and plausibly supported, 'it follows that the recognition ex-
traterritorially which custody orders receive or can com-
mand is liable to be more theoretical than of great practical
importance.'" "
Change of Domicile
A statement of another reason for the rule as to how the
full faith and credit clause affects a decree, made in a di-
vorce proceeding, as to custody of children is found in this
quotation from Ruling Case Law,5" where it is stated:
"Nor is a decree of a court of one state awarding the custody of
a child binding upon the courts of another state under the full faith
and credit clause of the federal constitution after the child has be-
come domiciled in the latter state. Such a decree as to a child has no
extraterritorial effect beyond the boundaries of the state where it
is rendered, and the courts of the second state will not remand the
child to the jurisdiction of another state, especially where it is against
the true interests of the child. The reason for this rule is found in the
fact that children are the wards of the court and the right of the state
rises superior to that of the parents. Therefore, when a child changes
his domicil and becomes a citizen of a second state, he is no longer
subject to the control of the courts of the first state."

54 GOODRICH, op. cit. supra note 4, at 306, quoting from Morrill v. Morrill,
83 Conn. 479, 77 Ati. 1 (1910), and citing Mylius v. Cargill, 19 N. M. 278, 142
Pac. 918, L. R. A. 1915B, 154, Ann. Cas. 1916B, 941 (1914).
55 JUDGMENTS, 15 R. C. L. § 417. Accord: Re Alderman, 157 N. C. 507, 73
S. E. 126, 39 L. R. A. (N. S.) 988 (1911).
 NOTRE DAME LAWYER

In Ex parte Alderman56 there was a contest between the

father and mother to determine the custody of an infant son.
The parties were divorced while residents of the State of
Florida, and the mother was given the custody of the minor,
with permission to the father to visit the child. Subsequent
to the granting of this divorce the mother removed to North
Carolina with the child. It was contended by the father that
under the Florida decree he had a vested right in the partial
custody of the child which the court of North Carolina
should respect. In its opinion in this case the court said:
-"The custody of children in cases of the divorce and separation of
their parents is a subject as delicate as any with which the courts have
to deal. The good of the child should be, and always is, the chief
thing to be regarded and the governing principle which guides the
-judge. All other considerations sink into insignificance. Many cases
and text-writers can be cited where the principle is announced that
the physical, moral and spiritual welfare of the child is the only safe
guide in cases of this kind; and the courts will be guided by those
surroundings. .. ..But theinfant child of their union is not property,
and the father can have no 'vested right in the 6child or its services
under, a decq, divorcing the parents. Such decree as to the child has
no extraterritorial'-effect beyond the boundaries of the state where it
was rendered. The child is now a citizen of North Carolina, and, as
sucli,, peculiarly iui.er its guardianship, and the courts of this state
will notfie iand it. to the jurisdiction of another state,-pspecially where,
as fit:this case, it-.is so-manifestly agint. the true interest of the
ci.ild:$ . 'The-su "rdme riglit of the 'state to the'guardianship of chil-
dren cont61s,,.the natural rights.-Qf. the parent, wyhen the welfare of
society.r of tte.children. teselves icts wiht:iarental rights.'"

In the case of People v. Johnson5 the court had this to

say:-
"The state is interested to protect the child, and the foreign divorce
ought not to preclude the courts of this state from protecting a child
from the influence of a mother whose actions since her divorce was
obtained show her to be unfit -to care for and rear a young girl....
"The Supreme Court of this state, as guardian of all infants within
its jurisdiction, has inherent power in a proper case to take the custody
of a child from either of its parents, if such a course is for the best

56 Op. cit. supra note 55.

57 205 App. Div. 190, 199 N. Y. S. 695, 697, 698 (1923).
 CONFLICT OF LAWS IN DIVORCE CASES

interest of the child. . . . It is the duty of the court in a proceeding

involving the care and custody of a child to look solely to its wel-
fare ...
"The Florida divorce obtained by relator was bacd on facts then
existing and brought to the attention of the court, and the awarding
of the custody of the child to the relator was undoubtedly based on
the idea that she was a person fit to have such custody, and that her
conduct in the future would be exemplary. If, since that decree was
obtained, as was established by the evidence here, she has conducted
herself in such a way as to show her morally unfit to care for a little
girl of tender years, then the court, whose jurisdiction she invoked to
get possession of the child, has a right to act on the facts brought
out at the hearing in her proceeding, and be governed accordingly."
Where the state rendering the divorce and awarding cus-
tody of the children was the domicile of the children and only
one of the parents, service being had on the nonresident
party by publication, while not entitled to obligatory en-
forcement, its decree will be respected, in the absence of
fraud, under the rule of comity.5
In the interesting case of Keener v. Keener 19 the facts
were that both complainant and defendant were born and
reared in Hawkins County, Tennessee, were married in Jan-
uary, 1913, making their home in Hawkins County; in De-
cember, 1913, a daughter was born to them. In' March,
1914, Mrs. Keener was forced to leave her husband, due to
his cruel and inhumane treatment. She at first made her
home with her father, in Hawkins County, Tennessee, but
the attentions of her husband so annoyed her that she
moved to Birmingham, Alabama, for the double purpose
of escaping her husband and to make her permanent home,
and to obtain a divorce after residing one year as required
by the Alabama statutes. In due time she filed her bill for
divorce in Jefferson County, Alabama, her husband being
served by publication. He refused to appear and contest the
bs Keener v. Keener, 139 Tenn. 211, 201 S. W. 779 (1918); Kline v. Kline,
7 Iowa 386, 10 N. W. 825 (1881); Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779
(1896); Harris v. Harris, 1I5 N. C. 587, 20 S. E. 187 (1894); People v. Hickey,
86 I1. App. 20 (1899).
59 Op. cit supra note 58.
 NOTRE DAME LAWYER

divorce, but did employ an attorney to watch the proceed-

ing and make report to him. He forbade the counsel to enter
his appearance in the case. A decree was awarded, .in ac-
cordance with Alabama law, and the custody of the child
was awarded to the mother. The child was then but a little
over a year old, and in delicate health, needing the constant
attention of a physician. The decree of the Alabama court
did not give the husband the right to see the child, but he
went to Alabama after the divorce had been granted, and
was granted permission by the mother, on two occasions, to
see the child. On advice of a physician, Mrs. Keener returned
temporarily to the home of her father, it being the opinion
of the physician that a change of climate would be bene-
ficial to the health of the child. While Mrs. Keener was on
this visit, the complainant, her former husband, filed the
bill in this case for the purpose of setting aside the decree
of the Alabama court, on the ground that it was obtained
by fraud, and also for the purpose of obtaining custody of
the child, or at least the opportunity of having custody for
a part of the. time. The chancellor before whom the case
was tried declined to interfere with the divorce, but did de-
cree to the complainant the right to see the child at intervals,
and required the placing of a bond that neither party should
remove the child from the jurisdiction of the court. An ap-
peal was taken to the higher court, which held that, while
the decree of the Alabama court was not entitled to obliga-
tory enforcement under the full faith and credit clause of
the Federal Constitution, the decree would be respected, in
the absence of fraud, under the rule of comity; and that
the complainant would have to look to the Alabama court
for any modification of its decree.
In the case of Brandon v. Brandon6 the court held that
a decree of the court of Common Pleas of the state of Ohio,
granting to the wife a divorce from her husband and award-
ing the custody of their child to the mother, the husband
60 154 Ga. 661, 115 S. E. 115 (1922).
 CONFLICT OF LAWS IN DIVORCE CASES

residing, at the time of the institution of divorce proceed-

ings and at the time of the rendition of the decree, in the
state of Georgia, is not entitled to obligatory enforcement
in Georgia under the full faith and credit clause of the Fed-
eral Constitution. As a general rule, the general law govern-
ing the comity of states, the judicial proceedings of another
state will be enforced in Georgia, if they do not involve any-
thing immoral, or are not contrary to public policy, or are
not violative of the conscience of the state of Georgia. But
where the child was living with the father in the state of
Georgia at the time of the rendition of the decree granting
the mother a divorce and awarding her custody of the child,
such decree, being had in the court of another state and be-
ing based on service on the father by publication alone, was
void for lack of jurisdiction, so far as it undertook to take
said child from the father and award it to the mother, and
the decree can be attacked on this ground by the father in
habeas corpus proceedings brought by the divorced wife
against him in Georgia, for the custody of the child.
It was held in Mollring v. Mollring 61 that a foreign de-
cree of divorce awarding the husband custody of the child,
entered when neither he nor the child was within the juris-
diction of the court, so far as award of custody is concerned,
is of no effect for want of jurisdiction.

Effect of Divorce Decree on Dower

If the divorce decree rendered in the courts of one state
absolutely terminates the marriage relation, then the effect
of a divorce on dower, affecting, as it does, an interest in
land, is necessarily governed by the lex rei sitae.62
In Barrett v. Failing63 it was held that generally a valid
divorce from the bonds of matrimony bars the wife's right

61 184 Iowa 464, 167 N. W. 524 (1918).

'62 GOODRICH, op. cit. supra note 4, at 304.
63 111 U. S. 523, 4 Sup. Ct. 598, 28 L. ed. 505 (1883).
 NOTRE DAME LAWYER

of dower, unless the same is preserved by the lex rei sitae.

Mr. Justice Gray said:
"Unless otherwise provided by local law, a decree of divorce by a
court having jurisdiction of the cause and of the parties, dissolving the
bond of matrimony, puts an end to all obligations of either party to
the other and to any right which either has acquired by the marriage
in the other's property, except so far as the court granting the divorce,
in the exercise of an authority vested in it by the legislature, orders
property to be transferred or alimony to be paid by one party to the
other."
The general rule is that a foreign divorce decree is void
so far as it attempts to affect the title to lands within the
state."
Since dower in land is governed by the law of the place
where the land lies, the queftion whether a valid divorce
granted by the court of a state other than that in which
the land of the husband is situated shall bar dower rights
of the divorced wife, depends exclusively on the law of the
latter state, and a decree for divorce granted in one state
will cut off the right of dower in the husband's land in an-
other state unless the statutes of that state expressly or
impliedly preserve the right.6"
"If the statutes of the state where the land is situated
provide that a divorce shall bar dower, a valid foreign di-
vorce will bar a divorced wife's claim for dower in land situ-
ated in that state, provided it was rendered for the wife's
fault, or upon some other enumerated ground, where that
is required by the local law to constitute a bar." 6

64 Williams v. Williams, 83 Ore. 59, 162 Pac. 834 (1917).

65 Chapman v. Chapman, 48 Kan. 636, 29 Pac. 1071 (1892); Hood v. Hood,
110 Mass. 463 (1872); Dowax, 19 C. J. § 141.
"Under what circumstances an interest in land within a state shall be allowed
a wife by way of dower is a question of policy which the state alone has power
to decide, and no judgment of a foreign tribunal in and of itself can in any wise
affect the question." Van Cleaf" v. Burns, 133 N. Y. 540, 30 N. E. 661, 662, 5
L. R. A. 542 (1892).
66 DowER, 19 C. J. & 141.
 CONFLICT OF LAWS IN DIVORCE CASES

In Gould v. Gould,67 a Missouri case, it was held that a

statute barring the wife's claim to dower after divorce grant-
ed by reason of the wife's fault applies to all divorces,
whether obtained in Missouri or in any other state, and
whether obtained on personal service of by order of pub-
lication. In Hawkins v. Ragsdale,6" a Kentucky decision, it
was held that a statute providing that a divorce bars all
claims to dower applies to all valid divorces wherever ob-
tained. But "a foreign decree of divorce which is void for
69
want of jurisdiction does not affect the right of dower."
In Colvin v. Reed 7 0 two citizens of Pennsylvania married.
Soon thereafter they made a visit to.Iowa, staying there for
a short time and then returning to Pennsylvania. After their
return, the wife declared her intention not to live with the
husband, and he went into another county in the State. Sub-
sequently he sold his farm to the defendant and went back
to Iowa, where, being a bona fide citizen, he obtained a di-
vorce a vinculo on the ground of desertion alleged to have
taken place in Pennsylvania. The wife had no actual notice
of the divorce proceedings. It was held that the divorce did
not extinguish her right of dower in the Pennsylvania farm.
The following cases support the doctrine that the effect
of a divorce on dower is governed by the lex rei sitae:
Mansfield v. Mclntire '1 -(A decree of divorce in Ky. is not a bar
to dower in Ohio.).
McGill v. Deming7 2 (A wife obtained a divorce in California for
the husband's intemperance and cruel treatment for more than two
years. Held, that the wife was divorced by reason of the aggression
of her husband, within the meaning of the statute providing that when
a divorce is granted by reason of the aggression of the husband, the
wife, if she survive her husband, shall also be entitled to dower.).

67 57 Mo. 200 (1874).

68 80 Ky. 353 (1882).
69 Loc. cit. supra note 66.
70 55 Pa. St. 375 (1867).
71 10 Ohio 28 (1840).
72 44 Ohio St. 645, 11 N. E. 118 (1887).
 NOTRE DAME LAWYER

Thomas v. King 73 (Under statute providing that, if the bonds of

matrimony be dissolved at the suit of the husband, the wife shall not
be entitled to dower, a divorce obtained by the husband in a foreign
state bars dower in Tennessee.).
Smith v. Woodwortz7 4 (Under a statute providing that no second
or subsequent marriage shall be contracted by a person during the
lifetime of any former spouse, unless the marriage shall have been an-
nulled or dissolved for some cause other than the adultery of such
person, it is not material on the question of dower that the former
marriage should have taken place or been dissolved within this state.).
Todd v. Keer 75 (An act of the legislature, procured by a wife in
the state in which she resides, dissolving the marriage contract be-
tween herself and her husband, who is a resident of a foreign state,
does not operate to debar the wife of dower in lands owned by her
husband in such foreign state.).
Hawkins v. Ragsdale 6 (In the absence of statute, a divorce ob-
tained by a husband in another state, though it determines the status
of the parties, does not, by its own force, affect the wife's right of
dower in his real estate in Kentucky.).
Van Cleaf v. Burns 77 (A statute provides that, in case of divorce
dissolving the marriage contract for the "misconduct of the wife, she
shall not be endowed." The statute provides that, where final judgment
is rendered dissolving a marriage in an action brought by the husband,
the wife shall not be entitled to dower in any of his real estate. Held,
that as nothing except adultery is regarded as misconduct with refer-
ence to the subject of absolute divorce, no other misconduct will de-
prive a wife of dower, even if it is the basis of a judgment of divorce
lawfully rendered in another state, unless it expressly appears that such
judgment has that effect in the jurisdiction where it was rendered.).
Van Cleaf v. Burns 78 (A foreign judgment-of divorce for cause other
than adultery, which has the effect to deprive the wife of dower in the
state where it is rendered, will not have such effect in New York. The
provisions of the full faith and credit clause of the United States Con-
stitution, while they make such foreign judgment conclusive of the
fact that the divorce was granted as therein stated, give it no extra-
territorial effect on land of the husband.).

73 95 Tenn. 60, 31 S. W. 983 (1895).

74 44 Barb. 198 (1865).
75 42 Barb. 317 (1864).
76 Op. cit. supra note 68.
77 118 N. Y. 549, 23 N. E. 881 (1890).
78 Op. cit. supra note 65.
 CONFLICT OF LAWS IN DIVORCE CASES

Questions of Alimony
When questions of jurisdiction to award alimony come up
in Conflict of Laws, the general rules are that for an award
of alimony to be effective, it must be rendered by a court hav-
ing personal jurisdiction over the defendant, in addition to
authority to make the order, this on the theory that alimony
is a personal judgment against the defendant.
In the Comment to Section 124 of the Restatement of
Conflict of Laws it is stated that the decree for alimony be-
ing the creation of a purely personal duty of the spouse, like
a judgment for damages, there must either be jurisdiction
over the person himself to create the duty, or jurisdiction
over the thing to apply it to the payment of the claim for
alimony. And then the Restatement provides: 79
"A state can exercise through its courts jurisdiction to grant alimony
to one spouse if it has jurisdiction over the other spouse; or, if it
has jurisdiction over his property, to the extent of such property."
In Paulin v. Paulinso it is held that a decree for alimony
rendered by the courts of a foreign state is within the ap-
plication of the full faith and credit clause of the Federal
Constitution, which confers jurisdiction to enforce such de-
cree upon the courts of the states other than that by whose
courts the decree was rendered, provided the decree sought
so to be enforced is final, and not temporary in its nature.
In Rogers v. Rogers I" the Indiana court gave full faith
and credit to a decree made by an Ohio court requiring the
husband to pay alimony at a stipulated sum per week, un-
til the further order of the court. It appeared that the judg-
ment sued upon was final and that the alimony was past
due when the suit was begun.
There are decisions, however, to the effect that if the
alimony decree is capable of modification it is not, even as to
79 REsTATEmENT, CONLICT oF LAWS (Student ed.) § 116.
80 195 IM. App. 350 (1915).
81 46 Ind. App. 506 (1909). See, also, Lape v. Miller, 203 Ky. 742, 263 S. W."
22 (1924).
 NOTRE DAME LAWYER

past due installments, a judgment within the full faith and

credit clause of the Federal Constitution. 2
In Morris v. Morris 83 it is held that a divorce decree of
a foreign state, where procured by false testimony of juris-
dictional facts, was no protection to the party guilty of that
fraud against a charge of adultery growing out of cohabita-
tion with a woman, with whom the guilty party, subsequent-
ly to the decree, went through a marriage ceremony other-
wise valid.
If the husband remove from the state of the matrimonial
domicile to another state for the purpose of obtaining a
divorce, and with no intention of remaining in the state, but
intending to remain there no longer than was necessary to
get a divorce, then such a decree so obtained would be void,
and the husband, upon his return to the matrimonial domi-
cile of the first marriage, would be subject to a prosecution
for bigamy. 4

Restrictions on Right to Remarry

In some states of the Union there are certain restrictions
upon the right of the divorced parties to remarry, and in
many of the states the consent of some court is requisite for
the guilty party to remarry, either in the decree granting
the divorce, or in a subsequent decree. In other states the
parties are not permitted to remarry until the lapse of a
certain time after the signing of the decree. In Alabama 85
82 Gaffey v. Criteser, 195 S. W. 1166 (Tex. 1917).
A very good discussion of the precedents involving attempts to enforce in one
state decrees for alimony rendered in another state is contained in Levine v.
Levine, 95 Ore. 94, 187 Pac. 609 (1920).
88 169 S. E. 475 (W. Va. 1933).
84 Thompson v. The State, 28 Ala. 12 (1856).
As to whether divorce is a defense in a prosecution for bigamy, see State v.
Herren, 175 N. C. 754, 94 S. E. 698 (1917).
85 ALA. CODE (1923) § 7425. For statutes of other states, see MADDEN, op.
cit. supra note 5,"at 42, note 2.
 CONFLICT OF LAWS IN DIVORCE CASES

the parties are not permitted to again contract marriage ex-

cept to each other until sixty days after the decree is ren-
dered.
Marriages made in violation of these restrictions are gen-
erally held to be void, and the party remarrying may be
prosecuted for bigamy. s6
There are cases holding, however, that where a party,
in order to evade the restrictions as to remarriage, leaves
the state and goes to another state and is there married, his
marriage, being lawful in that state, is lawful in the state
where he was divorced. This, on the theory of the courts that
the inhibition of such a state statute was not intended to
have extraterritorial operation. s7
And where a party obtains a divorce in one state, which
by its terms does not become absolute or take effect until
the passage of a certain time (six months in some states),
and then goes into another state, and, before the expira-
tion of the time prescribed in the decree, remarries, he is
guilty of bigamy in the latter state, and the second mar-
riage is void. 8

Walter B. Jones.
Montgomery, Alabama.

86 Ex parte State ex rel. Atty. Gen Vance v. State, 210 Ala. 9, 97 So. 230
(1923).
87 Griswold v. Griswold, 23 Colo. App. 365, 129 Pac. 560, 566 (1913);
Smith v. Goldsmith, 223 Ala. 155, 134 So. 651 (1931).
88 Warter v. Warter, 15 P. D. 152 (1890); Witt v. State, 5 Ala. App. 137,
S9 So. 71S (1912).