Alton v. Alton

207 F.2d 667, 2 V.I. 600, 1953 U.S. App. LEXIS 2933

• Court: Court of Appeals for the Third Circuit
• Decided: October 15, 1953
• Docket: 11087
• Status: Published

Opinions

GOODRICH, Circuit Judge

This case involves an important and novel question with regard to jurisdiction for divorce. The plaintiff, Sonia Alton, left her home in West Hartford, Connecticut, and went to the Virgin Islands, where she Arrived February 10, 1953. After six weeks and one day continuous presence there she filed a suit for divorce on March 25, 1953. Her husband, David Alton, defendant, entered an appearance and waived service of summons. He did not contest the allegations of the complaint. The commissioner to whom the case was referred filed findings of fact and conclusions of law and recommended that the plaintiff be granted a divorce for “incompatibility of temperament.”¹ When the case came to the judge of the district court he asked for further proof on the question of domicile. This was not furnished. He thereupon denied the plaintiff the relief sought, and the case comes here on her appeal. The defendant has filed no brief and made no argument.

The core of our question is found in two acts of the Legislative Assembly of the Virgin Islands. The first is the Divorce Law of 1944, section 9 of which requires six weeks’ residence in the Islands prior to commencement of a suit for divorce.² In Burch v. Burch [2 V.I. 559], 3 Cir. (1952), 195 F. 2d 799, this court construed the words “inhabitant” and “residence” in that statute to mean “domiciliary” and “domicile.” In 1953 the Legislative Assembly passed another act which must be stated in full in order to understand the specific problem involved in this case. It amends section 9 of the Divorce Law of 1944 by adding to it an additional subsection (a) which reads:

“Notwithstanding the provisions of sections 8 and 9 hereof, if the plaintiff is within the district at the time of the filing of the complaint and has been continuously for six weeks immediately prior thereto, this shall be prima facie evidence of domicile, and where the defendant has been personally served within the district or enters a general appearance in the action, then the Court shall have jurisdiction of the action and of the parties thereto without further reference to domicile or to the place where the marriage was solemnized or the cause of action arose.”³

The Legislative Assembly of the Virgin Islands has wide legislative authority. That authority, of course, comes from the Congress and is found in the organic act of the Islands. This power extends “to all subjects of local application not inconsistent with [other sections of this act] or the laws of the United States made applicáble to said islands . . .”⁴ Absent restrictions elsewhere, such a grant of power to a territory places it on a par with the States as to all matters properly included in the grant.⁵

Certainly marriage and divorce are proper subjects of local legislation. So also is the jurisdiction of local courts. The organic act grants to the District Court of the Virgin Islands not only jurisdiction over annulment and divorce, but also jurisdiction over “all matters and proceedings not otherwise hereinabove provided . . . which may hereafter be placed within the jurisdiction of the District Court of the Virgin Islands ... by local law.”⁶ We think this language, applied to divorce jurisdiction, puts the Virgin Islands on a par with the States, and overrides other restrictive provisions in Congressional legislation affecting the territories.⁷

Important as the Legislative Assembly’s power is, however, it is like the law-making bodies of the States, subject to the limitations of the Constitution of the United States.⁸ We approach the problem on review, therefore, as though the legislation in question had been passed by one of the States in this Circuit.

In connection with this 1953 act of the Virgin Islands, we must notice that it added an additional section 17 to the Divorce Law providing:

“Should any section of this law or part thereof be declared invalid by a Court of competent jurisdiction, said declaration shall not invalidate the remainder of this law.”

It is our obligation to separate the parts of the provision under consideration if we find one part of it is constitutional and the other part is not. Looking at the language to which our attention is addressed we think it pretty clear as a matter of construction of the English language that there are here two separable provisions. There are two rules provided and they are connected with a conjunctive “and.” We think, therefore, that we must give attention to the two clauses independently.

We turn first to the opening clause of the statute. Continuous physical presence in the Islands for six weeks prior to the filing of a complaint in a divorce action is declared to be prima facie evidence of domicile. The question is whether such a declaration is within the legislative competence. The test to be applied is whether the fact or facts to be presumed are reasonably related or have some rational connection with the fact which creates the presumption. The leading case is Mobile, J. & K. C. R. Co. v. Turnipseed (1910) 219 U.S. 35, 31 S. , 55 L. Ed. 78. It has been followed in many cases since.⁹

The problem we must answer is whether six weeks’ physical presence creates, without more, a rational foundation on which to base a finding of domicile. The requirements for effecting a change of domicile by a person having legal capacity are clear and undisputed. There must be physical presence in the place where domicile is claimed and there must be the intent to make that place the home of the person whose domicile is in question. Restatement, Conflict of Laws, § 15. If these two elements concur even for an instant the domicile is established at the new place.¹⁰

Physical presence is easy to prove. It is by far the easier element to establish in the question of change of domicile, and it is not conclusive one way or the other in answering the question of location of domicile. The books are full of cases where persons have been absent from the place of domicile for a long time and still found not to have lost domicile there.¹¹

The statute in question jumps the difficult phase in the proof of domicile, namely, the intent to make a home in the place where domicile is claimed. It would not be denied that long continued residence in a place tends to show that one has made a home there although there are many decisions in which courts have struggled with the problem even in the face of long continued presence in a place other than the one which at one time was the domicile of an individual concerned.¹²

A six-weeks’ sojourn without proof of the intent with which one makes it, we think, tends to establish nothing but the fact of six weeks’ physical presence. Thousands and thousands of people spend six weeks or more in a place every year on business, for pleasure, for reasons of health, to visit relatives and all the other different reasons which make Americans move about, without the faintest intention of making a change in their homes.

It is to be noted also that the statutory presumption in this case applies to the very thing on which jurisdition is founded. We think it is much easier to support a presumption or prima facie rule which allows a conclusion such as negligence to be drawn from named operative facts than it is to support a conclusion lifting a court into jurisdiction over that which it would not otherwise have.¹³ Of course, it may be urged that in the first part of the statute this conclusion is not an irrevocable one and that the statute speaks in terms of “prima facie” only. But in considering all this we must open our eyes to the known facts about divorce litigation in this country. We know that while it is still conducted against a background of what appears to be ordinary contentious litigation in a great proportion of cases it is not this way at all. Thus, in the Virgin Islands for 1952 divorce litigation accounted for 343 cases concluded during that period; all other civil litigation amounted to only 272 cases. Of these divorce cases 342 were uncontested.¹⁴ Back as far as 1932 surveys conducted by The Institute of Law of The Johns Hopkins University showed that in Maryland, a state with almost no migratory divorce problem, only 80 cases were actually contested out of the 2090 actions filed in 1929 and disposed of by May, 1931. 41.3% of these actions were technically contested by the filing of an answer. Marshall and May, I The Divorce Court 206-208 (1932). Statistics from the Bureau of the Census demonstrate the low rate of contested divorces in this country from 1887 to 1931:

1887 to 1906 1916 1922 1923 1924 1925 1926 1927 1928 1929 1930 1931

Per Cent Contested 15.4 13.6 14.1 13.4 13.8 12.8 12.1 11.9 11.7 11.8 12.6 13.9

It should be noted that in many of these cases the only contest may have been the filing of an answer. Marriage and Divorce 30, 31 (1930); ) Marriage and Divorce 25, 26 (1931). And see Note, The Administration of Divorce: A Philadelphia Study, 101 U. of Pa. L. Rev. 1204, 1208 (1953). More recent nation-wide compilations of such statistics are not available. But several state reports reveal that the earlier figures are still representative: in 1951 only 7.8% of Iowa divorces and 11.4% of Nebraska divorces were even technically contested.¹⁵ However, Florida contests have increased from 6.4% in 1930 to 34% in 1951.¹⁶ This increase is probably the result of Sherrer v. Sherrer (1948) 334 U.S. 343, 68 S. Ct. 1087, 1097, 92 L. Ed. 1429, and Coe v. Coe (1948) 334 U.S. 378, 68 S. Ct. 1094, 92 L. Ed. 1451, under which it was established that the doctrine of res judicata was applicable when the defendant had appeared.

All this being so, and there is little doubt about the general facts with regard to divorce litigation, we think it bears upon the question of whether it is reasonable to call for an inference of domicile by a set of facts which leaves out the hard question, namely, intent, and purports to leave open to a nonexisting opponent the burden of disputing the conclusion which is otherwise to be drawn. If domicile is really the basis for a divorce jurisdiction, a subject considered later in this opinion, then six weeks’ physical presence without more is not a reasonable way to prove it.

In considering this statute we do not think that we can ignore the facts of life with respect to migratory divorce in America. It is well known to all of us that increasingly large numbers of persons who are dissatisfied with their marital lot are repairing to other jurisdictions, the Virgin Islands among them, where short residence requirements and liberal grounds for divorce appear to offer them the relief they desire. In very few of these instances do the parties intend to remain longer than necessary to obtain the decree sought. Consequently in-these cases , the court’s finding of domicile usually'is contrary to the fact and frequently is based upon evasive or even perjured testimony. The statutory presumption in the present case will doubtless eliminate the temptation to such perjury but the findings based upon it will still be contrary to the true fact in the great majority of cases. The presumption must, therefore, be regarded as either an unreasonable interference by the legislative branch of the insular government with the exercise of the judicial power by the judicial branch or as an attempt by the legislature to convert the suit for divorce into what is in fact a transitory action masquerading under a fiction of domiciliary jurisdiction. We think that looked at in any of these ways the portion of . the statute which provides for such a prima facie conclusion is invalid.

We pass, therefore, to the second part of the statute. The second part of the statute goes on to provide that the court shall have jurisdiction, after six weeks’ residence by the plaintiff, where the defendant has been personally served or appeared, “without further reference to domicile.” In other words, if the defendant is before the court, the case is to proceed without reference to domicile.¹⁷ The action, in other words, is to become a simple transitory action like a suit for tort or breach of contract where, the defendant being in court and the court competent to proceed in this type of action, all the requisites for jurisdiction are satisfied. Can divorce be turned into a simple, transitory action at the will of any legislature?

The background of divorce legislation and litigation shows that it has not been considered a simple transitory personal action. The principle said to govern is that marriage is a matter of public concern, as well as a matter of interest to the parties involved. Because it is a matter of public concern, the public, through the state, has an interest both in its formation and in its dissolution, and the state which has that interest is the state of domicile, because that is where the party “dwelleth and hath his home.”

The point is so fundamentally important here, that a quotation from Supreme Court language is called for. Mr. Justice Frankfurter, speaking for the Court, said:

“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.]. The framers of the Constitution were familiar with this jurisdictional prerequisite, and since 1789 neither this Court nor any other court in the English-speaking world has questioned it. 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, we' have held, to dissolve a marriage wheresoever contracted. In view of Williams v. North Carolina, supra [325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577], the jurisdictional requirement of domicil is freed from confusing refinements about ‘matrimonial domicil,' see Davis v. Davis, 305 U.S. 32, 41 [59 S. Ct. 3, 6, 83 L. Ed. 26], and the like. 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.”¹⁸

So deeply has it been thought that the responsibility for divorce was that of the domicile, that divorce litigation has been called an action in rem, the res being the marital relationship between the parties.¹⁹ One may question whether the analogy has not caused more confusion than clarity, but at any rate it shows the way in which the matter has been regarded in the law. It is of significance upon the importance of domicile as the foundation for jurisdiction that the Supreme Court has recently held that a divorce action at the domicile of one of the parties is entitled to full faith and credit as a matter of constitutional compulsion even without the presence of the defending spouse.²⁰ On the other hand, a divorce not at the domicile gives no protection against a prosecution for bigamy in the state of the domicile,²¹ although if the defendant is in court he, himself, may be precluded from questioning the decree on the grounds of res judicata.²²

We now go out beyond the place where legal trails end. The Supreme Court has never had occasion to say what would happen in a case where two parties, being personally before the court, are purportedly divorced by a state which has no domiciliary jurisdiction, and the question of the validity of the decree comes up in a second state in a prosecution for bigamy, or in a suit for necessaries by a creditor, or in some other such fashion. Granted that the parties are precluded from attacking the decree, does that immunity extend only to attacks'by them or by those in privity with them?²³ Here- is an unanswered question. The answer would be conclusive in this case if Mrs. Alton had got her divorce, had re-married, and had been prosecuted for adultery in Connecticut.

But assume that the Virgin Islands cannot grant to a nondomiciliary a decree which will be impregnable elsewhere by the shield of full faith and credit. Can it not, if it pleases, provide for the granting of a divorce decree to any plaintiff who has a defendant in court in the Virgin Islands? If the decree is good by the law of the Islands and the parties thereto and those in privity with them cannot attack it, it may well be good enough for practical purposes in a world where divorce decrees as well as everything else may fall short of perfection. But is such a decree, which the parties might regard as good enough, one which a nondomiciliary court may grant?

The Seventh Circuit has thought that there could be a divorce decree valid in the state where granted but invalid elsewhere.²⁴ Its judgment that Illinois must honor a Nevada marriage following a Nevada divorce, instead of a subsequent New York judgment invalidating the divorce and annulling the marriage for want of a Nevada domicile, was reversed by the Supreme Court.²⁵ That Court’s decision was an application of the full faith and credit clause, which is not involved here at this stage of the proceedings. But if the opinion of the Seventh Circuit was directed at the validity of a divorce decree in the rendering state before subsequent proceedings call for the application of the full faith and credit clause, we are, with due deference, compelled to disagree.

Before the days of the Fourteenth Amendment, a state could and some states did, pass rules for the exercise of jurisdiction against nonconsenting, nonresident absentee defendants. These rules were not based upon what are now considered the fundamental requisites for such jurisdiction.²⁶ The judgments were not recognized in other states under the full faith and credit clause, but there was no foundation for testing their validity in the state where they were rendered.²⁷ After the Fourteenth Amendment provided a way for testing the validity of these judgments in the rendering state under the due process clause, it became well settled that an attempt to give a personal judgment for money against one not subject to the state’s jurisdiction was invalid at home under due process, as well as invalid abroad under full faith and credit.²⁸ With regard to this type of case one can generalize and say that due process at home and full faith and credit in another state are correlative.

The Restatement of Conflict of Laws says flatly that a state may not create an interest where it does not have jurisdiction.²⁹ Undoubtedly the result of a divorce decree is to affect interests in a matrimonial relationship. If it is still correct to say that the basis for divorce jurisdiction is domicile, a state where the party is not domiciled is, in rendering him a divorce, attempting to create an interest where it has no jurisdiction. Its attempt to do so is an invalid attempt, and contrary to the due process clause.³⁰

We think that the premise that divorce jurisdiction is founded on domicile is still the law. It was reiterated by the Supreme Court in unequivocal language in the quotation cited above, which language is the more significant because of the strong dissent expressed by Mr. Justice Rutledge. If that premise is to disappear in the light of real or supposed change in social concepts, its disappearance should be the result of the action of higher authority than ours.

The result suggested above is not spelled out in the books. If the Restatement generalization is correct the application necessarily follows. The Restatement generalization is demonstrably correct so far as a personal judgment for money is concerned. The arguable point here is whether in a world of changing mores jurisdiction for divorce based on domicile is as fundamental as the rule that you must have a defendant subject to your jurisdiction before you can give a personal judgment against him. Minority dictum from a member of the Supreme Court has indicated impatience with the domiciliary requirement.³¹

We think that adherence to the domiciliary requirement is necessary if our states are really to have control over the domestic relations of their citizens. The instant case would be typical. In the Virgin Islands incompatibility of temperament constitutes grounds for divorce.³² In Connecticut it does not.³³ We take it that it is all very well for the Virgin Islands to provide for whatever matrimonial regime it pleases for people who live there. But the same privilege should be afforded to-those who control affairs in Connecticut.

Our conclusion is that the second part of this statute conflicts with the due process clause of the Fifth Amendment and the Organic Act. Domestic relations are a matter of concern to the state where a person is domk ciled. An attempt by another jurisdiction to affect the relation of a foreign domiciliary is unconstitutional even though both parties are in court and neither one raises the question. The question may well be asked as to what the lack of due process is. The defendant is not complaining. Nevertheless, if the jurisdiction for divorce continues to be based on domicile, as we think it does, we believe it to be lack of due process for one state to take to itself the readjustment of domestic relations between those domiciled elsewhere. The Supreme Court has in a number of cases used the due process clause to correct states which have passed beyond what that court has considered proper choice-of-law rules.³⁴

If we are right- so far in holding that the Virgin Islands have no jurisdiction to give divorces to persons not domiciled there, the second part of the statute quoted cannot aid the plaintiff’s case. That.part of the statute seems to say that if the parties are in court and do not object the court may not exercise its curiosity by finding out if there really is a domicile in the forum. It is well settled, of course, that parties cannot by their consent confer jurisdiction of the subject matter upon a court which does not have authority to deal with that subject matter. We have endeavored to show that the Virgin Islands do not have authority to deal with a marriage relation between nondomiciliaries. If that is right, forbidding a court to inquire whether a party is a non-domiciliary is a useless provision. Suppose a state statute purported to confer jurisdiction in matters concerning collision at sea upon a state court, in the absence of dissent by either party. Surely a conscientious state judge would not give any effect to the attempt by the legislature and the parties to take over what the Constitution assigns to another system of courts. The same is true here.

The judgment of the district court will be affirmed.

1 This is one of eight grounds specified, in the Divorce Law of the Virgin Islands, Act of the Legislative Assembly of the Virgin Islands approved December 29, 1944, § 7 [16 V.I.C. § 104].

2 Act of the Legislative Assembly of the Virgin Islands [Bill No. 14] approved December 29, 1944, § 9 [16 V.I.C. § 106 note].

3 Bill No. 55, 17th Legislative Assembly of the Virgin Islands, passed May 19, 1953, approved May 29, 1953, amending § 9 of the Divorce Law of 1944 [16 V.I.C. § 106 note].

4 [1936 Organic Act of the Virgin Islands, § 19, prec. 1 V.I.C.], 48 U.S.C. § 1405r.

5 Yerian v. Territory of Hawaii, 9 Cir. (1942), 130 F.2d 786, 789; Brodhead v. Borthwick, 9 Cir. (1949), 174 F.2d 21, certiorari denied (1949), 338 U.S. 847, 70 S. Ct. 87, 94 L. Ed. 518; Kitagawa v. Shipman, 9 Cir. (1931), 54 F.2d 313, certiorari denied (1932), 286 U.S. 543, 52 S. Ct. 496, 76 L. Ed. 1281; Lastra v. New York & Porto Rico S.S. Co., 1 Cir. (1924), 2 F.2d 812, appeal dismissed (1925), 269 U.S. 536, 46 S. Ct. 106, 70 L. Ed. 400; Gonzalez v. People of Porto Rico, 1 Cir. (1931), 51 F.2d 61; People of Puerto Rico v. Eastern Sugar Associates, 1 Cir. (1946), 156 F.2d 316, certiorari denied (1946), 329 U.S. 772, 67 S. Ct. 190, 91 L. Ed. 664.

The similarity of territories and states has also evoked the complementary principle that even though Congress may relieve the territories of restrictions that the Constitution imposes on the states, like the ban on burdening interstate commerce, only the clearest evidence of such intent will authorize the conclusion that it has done so. Mullaney v. Anderson (1952) 342 U.S. 415, 72 S. Ct. 428, 96 L. Ed. 458.

6 [1936 Organic Act of the Virgin Islands, § 28, prec. 1 V.I.C.], 48 U.S.C. § 1406 (4), (8).

7 We do not think 48 U.S.C. § 1471, prohibiting territorial passage of “special” divorce laws, or § 1463, granting territorial courts “common-law jurisdiction,” have any application here. Nor do the judiciary regulations of Title 28 of the Code affect this case. See § 451 of that title, also 48 U.S.C. § 1405z and § 1406. See also I Moore’s Federal Practice 51-66 (1938 ed.).

8 The Constitutional limitations of the Fifth, Sixth, and Seventh Amendments [U. S. Const, prec. 1 V.I.C.] on the power of Congress to legislate, and consequently on the legislative power exercisable by territorial bodies created by Congress, apply ex proprio vigore in “incorporated” or “organized” territories that are part of the “United States.” Rassmussen v. United States (1905) 197 U.S. 516, 25 S. Ct. 514, 49 L. Ed. 862. But, although it first seemed that these and similar' limitations applied to all the territory over which the United States was sovereign, Dred Scott v. Sandford (1857) 19 How. 393, 15 L. Ed. 691, it seems to be settled that the entire Constitution does not extend of its own force to unincorporated areas. Dorr v. United States (1904) 195 U.S. 138, 24 S. Ct. 808, 49 L. Ed. 128 (no guarantee of trial by jury in the Philippine Islands); Balzac v. People of Porto Rico (1922) 258 U.S. 298, 42 S. Ct. 343, 66 L. Ed. 627 (no guarantee of trial by jury in Puerto Rico); Downes v. Bidwell (1901) 182 U.S. 244, 21 S. Ct. 770, 45 L. Ed. 1088 (no requirement that imposts be uniform in Puerto Rico). There have been from time to time, however, statements by the Supreme Court to the effect that there are certain “fundamental” rights protected by the Constitution which extend wherever the United States is sovereign. See Downes v. Bidwell, supra, 182 U.S. at pages 276-277, 21 S. Ct. 770, 45 L. Ed. 1088 (First Amendment; right to own property); Balzac v. People of Porto Rico, supra, 258 U.S. at pages 312-313, 42 S. Ct. 343, 66 S. Ct. [L. Ed.] 627 (Fifth Amendment); Dorr v. United States, supra, 195 U.S. at pages 146-147, 24 S. Ct. 808, 49 L. Ed. 128.

The Court of Appeals for the First Circuit has held the due process clause of the Fifth Amendment in effect in Puerto Rico by its own force. Arroyo v. Puerto Rico Transp. Authority (1947) 164 F.2d 748.

The Virgin Islands constitute an unincorporated territory. Soto v. United States [1 V.I. 536], 3 Cir. (1921), 273 Fed. 628. This court, however, has held that the due process clause of. the Fifth Amendment extends, to the Islands by its own force as a limitation on legislation enacted there. Soto v. United States, supra; Thornberg v. Jorgensen [1 V.I. 606], 3 Cir. (1932), 60 F.2d 471. While the Organic Act of the Virgin Islands which was enacted in 1936 [prec. 1 V.I.C.] did not extend the Constitution to. the Islands (Cf. Alaska and Hawaii, 48 U.S.C. §§ 23, 495), it does contain a Bill of Rights which includes a due process and equal protection clause. [1936 Organic Act, § 34, prec. 1 V.I.C.]. 48 U.S.C. § 1406.g.

9 For presumption of negligence, see Seaboard Airline Ry. Co. v. Watson (1932) 287 U.S. 86, 53 S. Ct. 32, 77 L. Ed. 180; Atlantic Coast Line R. Co. v. Ford (1933) 287 U.S. 502, 53 S. Ct. 249, 77 L. Ed. 457; Hawkins v. Bleakly (1917) 243 U.S. 210, 37 S. Ct. 255, 61 L. Ed. 678; Easterling Lumber Co. v. Pierce (1914) 235 U.S. 380, 35 S. Ct. 133, 59 L. Ed. 279. Cf. Western & Atlantic Railroad v. Henderson (1929) 279 U.S. 639, 49 S. Ct. 445, 73 L. Ed. 884.

For presumptions of criminal or fraudulent intent or knowledge, see Adler v. Board of Education (1952) 342 U.S. 485, 72 S. Ct. 380, 96 L. Ed. 517; Morrison v. California (1934) 291 U.S. 82, 54 S. Ct. 281, 78 L. Ed. 664; Hawes v. State of Georgia (1922) 258 U.S. 1, 42 S.C. 204, 66 L. Ed. 431. Cf. Manley v. State of Georgia (1929) 279 U.S. 1, 49 S. Ct. 215, 73 L. Ed. 575.

For presumptions that findings of fact of a commission or board are correct, see, e.g., Meeker & Co. v. Lehigh Valley R.R. (1915) 236 U.S. 412, 35 S. Ct. 328, 59 L. Ed. 644.

See also Oyama v. State of California (1948) 332 U.S. 633, 68 S. Ct. 269, 92 L. Ed. 249; McFarland v. American Sugar Co. (1916) 241 U.S. 79, 36 S. Ct. 498, 60 L. Ed. 899; Bandini Co. v. Superior Court (1931) 284 U.S. 8, 52 S. Ct. 103, 76 L. Ed. 136; Republic Aviation Corp. v. N. L. R. B. (1945) 324 U.S. 793, 65 S. Ct. 982, 89 L. Ed. 1372.

10 White v. Tennant (1888) 31 W. Va. 790, 8 S.E. 596.

11 Easterly v. Goodwin (1868) 35 Conn. 279 (several years); Culbertson v. Board of Com’rs. (1876) 52 Ind. 361 (27 Months); Sears v. City of Boston (1840) 1 Metc., Mass., 250 (16 months); Dupuy v. Wurtz (1873) 53 N.Y. 556 (9 years); In re Patience (1885) 29 Ch. Div. 976 (70 years); Winans v. Att’y Gen. (1904) A.C. 287 (54 years).

12 Easterly v. Goodwin, supra; Dupuy v. Wurtz, supra; Udny v. Udny, L.R. 1 H.L. (Sc.) 441 (1869); In re Patience, supra; Winans v. Att’y Gen., supra.

13 At least two Supreme Court cases have involved statutory presumptions of jurisdictional facts, rather than of other facts. The Court did not advert to the distinction in either opinion, but based its conclusions on the Turnipseed rule. Tot v. United States (1943) 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519; Yee Hem v. United States (1925) 268 U.S. 178, 45 S. Ct. 470, 69 L. Ed. 904.

14 Appearances were filed in 296 of these uncontested cases; defendants were adjudged in default in 46 of them.

15 ercentages adduced from Ann. Rep. Iowa Div. Vital Statistics 98 (1951); Ann. Rep. Nebraska Bureau Vital Statistics 72 (1951).

16 Percentages adduced from Marriage and Divorce 56 (1930); Florida Vital Statistics, Ann. Rep. Supp. I, 85 (1951).

17 The legislative history of the statute shows without a doubt that the Legislative Assembly intended to confer jurisdiction to divorce regardless of domicile, rather than merely to establish a rule of evidence. In early 1953 a bill was passed making six weeks’ residence the equivalent of domicile . for divorce purposes. Bill No. 54, 17th Legislative Assembly of the Virgin Islands (2d Sess., 1953) [16 V.I.C. 106 note]. This hill was vetoed by the Governor, whereupon the statute before us was passed and signed.

18 Williams v. North Carolina (II) (1945), 325 U.S. 226, 229-230, 65 S. Ct. 1092, 1095, 89 L. Ed. 1577. See also Restatement, Conflict of Laws, § 110, comment a; Goodrich, Conflict of Laws 396 (3d ed.).

19 Haddock v. Haddock (1906) 201 U.S. 562, 576-578, 26 S. Ct. 525, 50 L. Ed. 865.

20 Williams v. North Carolina (I) (1942), 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279.

21 Williams v. North Carolina (II) (1945), 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577.

22 Sherrer v. Sherrer (1948) 334 U.S. 343, 68 S. Ct. 1087, 1097, 92 L. Ed. 1429; Coe v. Coe (1948) 334 U.S. 378, 68 S. Ct. 1094, 92 L. Ed. 1451.

23 Following the Sherrer and Coe cases, supra note 22, the Supreme Court has held that if a person cannot collaterally attack the decree by the law of the state which rendered it, he cannot do so in the second state. Johnson v. Muelberger (1951) 340 U.S. 581, 71 S. Ct. 474, 95 L. Ed. 552. See also Cook v. Cook (1951) 342 U.S. 126, 72 S. Ct. 157, 96 L. Ed. 146.

In state courts it has been suggested that fraud on the court as to its jurisdiction permits a subsequent re-examination of jurisdiction by either party in a court of another state. Chirelstein v. Chirelstein (1950) 8 N.J. Super. 504, 73 A.2d 628, modified on other grounds (1951), 12 N.J. Super. 468, 79 A.2d 884; Staedler v. Staedler (1951) 6 N.J. 380, 78 A.2d 896. Cf. DuPont v. DuPont (Del. 1952), 90 A.2d 468, certiorari denied (1952), 344 U.S. 836, 73 S. Ct. 46 [97 L. Ed. 651], (fraud, other than respecting jurisdiction, not grounds for collateral attack).

Another version of estoppel prevents a subsequent attack for want of jurisdiction by the party who procured the decree. Under this version, nonparticipating spouses and even third parties have been barred fr.om attacking jurisdiction in a second suit in another state. For extremes, see Harris v. Harris (1952) 90 U.S. App. D.C., 196 F.2d 46; Judkins v. Judkins (1952) 22 N.J. Super. 516, 92 A.2d 120. Cf. Ludwig v. Ludwig (1948) 413 Ill. 44, 107 N.E.2d 848.

24 Sutton v. Leib, 7 Cir. (1951), 188 F.2d 766, 768. “We have searched the numerous eases decided by'the Supreme Court of the United States on the subject of migratory divorce for a definitive holding as to the judicial status of such divorce in the state that decreed it. It appears to be assumed that the decree is valid and binding in the state where it is rendered [citing].”

25 Sutton v. Leib (1952) 342 U.S. 402, 72 S. Ct. 398, 96 L. Ed. 448. “The New York decree ... is entitled to full faith throughout the Nation, in Nevada as well as in Illinois.” 342 U.S. at 408, 72 S. Ct. at page 402, 96 L. Ed. 448.

26 See Phelps & Others v. Brewer & Others (1852) 9 Cush., Mass., 390; Woodward v. Tremere (1828) 6 Pick., Mass., 354; Hall v. Williams (1828) 6 Pick., Mass., 232. See also Smith v. Colloty (1903) 69 N.J.L. 365, 55 Atl. 805.

27 In D’Arcy v. Ketchum (1850) 11 How. 165, 13 L. Ed. 648, the Supreme Court construed the full faith and credit clause and the Act of 1790 enacted pursuant thereto not to alter the settled rule of international law previously existing. A judgment rendered in one state purporting to bind a citizen of another was not entitled to respect in-the foreign state if the defendant had neither been served with process nor voluntarily appeared in the action. Thus a Louisiana court need not honor a New York judgment against a joint debtor not served in the New York suit, although there was no question of the validity of the judgment in New York under a statute of that state authorizing such judgment.

In Baker v. Baker, Eccles & Co. (1917) 242 U.S. 394, 37 S. Ct. 152, 61 L. Ed. 386, the Court reviewed the history of the full faith and credit clause and the developed rule that a judgment in personam in one state need not be credited in another without service of process on the defendant in the first action. “This rule became established long before the adoption of the 14th Amendment, as the result of applying fundamental principles of justice and the rules of international law as they existed among the states at the inception of the government.” 242 U.S. at 401, 37 S. Ct. at page 155, 61 L. Ed. 386. “During the same period, however, it occasionally was intimated, if not held, by some of the state courts, that a personal judgment, effective within the territory of the state, could be rendered against a nonresident defendant who did not appear and submit himself to the jurisdiction ... it is difficult to see how such a judgment could legitimately have force even within the state. But until the adoption of the 14th Amendment (1868) this remained a question of state law.” 242 U.S. at 402-403, 37 S. Ct. at page 155, 61 L. Ed. 386.

28 Baker v. Baker, Eccles & Co. (1917) 242 U.S. 394, 37 S. Ct. 152, 61 L. Ed. 386; Riverside and Dan River Cotton Mills v. Menefee (1915) 237 U.S. 189, 35 S. Ct. 579, 59 L. Ed. 910.

29 Restatement, Conflict of Laws § 43.

30 Because we are analogizing the Virgin Islands to a state, we refer to the Fourteenth Amendment. As pointed out in footnote 8, supra, however, the Islands are subject to the due process clause of the Fifth Amendment as well as to the due process clause in the Organic Act.

31 “I think a major operation is [necessary]. 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.” Rutledge, J., dissenting in Williams v. North Carolina (11), supra, 325 U.S. at 255, 65 S. Ct. at 1107, 89 L. Ed. 1577.

“Domicil, as a substantive concept, steadily reflects neither a policy of permanence nor one of transiency. It rather reflects both inconstantly. The very name gives forth the idea of home with all its ancient associations of permanence. But ‘home’ in the modern world is often a trailer or a tourist camp . . . beyond this, ‘home’ in the domiciliary sense can be changed in the twinkling of an eye, the time it takes a man to make up his mind to remain where he is when he is away from home . . . Domicil thus combines the essential contradictory elements of permanence and instantaneous change.” Id., 325 U.S. at pages 257-258, 65 S. Ct. at page 1107, 89 L. Ed. 1577.

32 See Burch v. Burch [2 V.I. 559], 3 Cir. (1952), 195 F.2d 799, 806-807, in which this Court construed “incompatibility of temperament” to require “disharmony ... so deep and intense as to be irremediable,” not merely “those petty quarrels and minor bickerings which are but the evidence of that frailty which all humanity is heir to.” The opinion of the district court in the case before us states that the plaintiff made out a case of incompatibility, and we are not asked to review this finding.

33 Grounds for divorce in Connecticut are “Adultery; fraudulent contract; willful desertion for three years with total neglect of duty; seven years’ absence . . .; habitual intemperance; intolerable cruelty; sentence to imprisonment for life or the commission of any infamous crime involving a violation of conjugal duty . . .; legal confinement, because of incurable mental illness, for at least five years . . .” Conn. Gen. Stat. § 7327 (1949).

34 Hartford Accident & Indemnity Co. v. Delta & Pine Land Co. (1934) 292 U.S. 143, 54 S. Ct. 634, 78 L. Ed. 1178 (denial of due process for forum to apply its law that time limitation in insurance policy was invalid, when policy issued in another state whose law permitted such provision); Home Ins. Co. v. Dick (1930) 281 U.S. 397, 50 S. Ct. 338, 74 L. Ed. 926 (denial of due process for forum to apply to an insurance policy issued in Mexico and containing a time limitation valid by Mexican law a statute of the forum invalidating such a provision). See also John Hancock Mut. Life Ins. Co. v. Yates (1936) 299 U.S. 178, 57 S. Ct. 129, 81 L. Ed. 106, and Order of United Commercial Travelers v. Wolfe (1947) 331 U.S. 586, 67 S. Ct. 1355, 91 L. Ed. 1687, basing similar conclusions in cases similar to the above on the full faith and credit clause.