Cassen v. Cassen

201 S.W.2d 585, 211 Ark. 582, 1947 Ark. LEXIS 584

• Court: Supreme Court of Arkansas
• Decided: April 28, 1947
• Docket: 4-8179
• Status: Published

Opinions

Ed. F. MoFaddin, Justice.

In this, divorce suit, appellant is the wife, and appellee, the husband. They were married in Massachusetts in 1929, and have two children. In 1942, appellee filed a suit for divorce in Florida on the ground of cruelty. The divorce was denied by the Florida Circuit Court, and that holding was affirmed by the Supreme Court of Florida on March 23, 1945, in the case of Cassen v. Cassen, 155 Fla. 768, 21 So. 2d 458.

The appellee came to Arkansas for a divorce. He arrived here on January 3, 1946, and rented a room ,by the week at a hotel in Little Eock. His suit for divorce was filed on March 6, 1946; and, until after his suit had been filed, he did not evidence by affirmative acts any intention to reside permanently in Arkansas. The appellant, a resident of Massachusetts, was summoned by warning order and notified by attorney ad litem. .She appeared specially for the sole purpose of challenging the jurisdiction of the Arkansas court; and she claimed that the appellee was not a bona fide resident of Arkansas.

From a decree finding appellee to be a bona fide resident, and granting him a divorce, there is this appeal, which necessitates a re-examination of our holding in Squire v. Squire, 186 Ark. 511, 54 S. W. 2d 281, in the light of subsequent cases which likewise involved the question of bona fide residence as essential to jurisdiction of the court to grant a divorce.

In Squire v. Squire, supra, in speaking of a party who was granted a divorce, we said:

‘ ‘ She frankly admitted that she came to this State to obtain a divorce; that she would remain here if she could secure employment to support herself and child. Even though she moved to this State to bring a divorce suit and had the intention of leaving after the divorce was granted, this would not deprive the court of jurisdiction, if she were actually and in good faith a bona fide resident for the period prescribed by the statute.”

Before a person can become a resident of' this state so as to have his marital status determined by the courts of this state, he must, in truth and in fact, be a bona fide resident of, the state, as hereinafter defined. The following cases attest that this court had repeatedly indicated that the Squire case should be thus modified. In Barth v. Barth, 204 Ark. 151, 161 S. W. 2d 393, in denying a divorce, we held that bona fide residence was required. In Gilmore v. Gilmore, 204 Ark. 643, 164 S. W. 2d 446, we said: • “In the instant case there was a want of jurisdiction if appellee were not a bona fide resident of Arkansas.” In Feldstein v. Feldstein, 208 Ark. 928, 188 S. W. 2d 295, in denying a divorce, we said: ‘ ‘ The evidence in this case is not sufficient to show that appellee ever became a bona fide resident of Arkansas.”

In O’Keefe v. O’Keefe, 209 Ark. 837, 192 S. W. 2d 556, we quoted from Mohr v. Mohr, 206 Ark. 1094, 178 S. W. 2d 502, as follows: “ ‘Without lengthening this opin,ion to analyze the holdings of other courts, we hold that there must be overt acts sufficient to demonstrate a real and bona fide intent to acquire residence here before the State of Arkansas — as a silent third party to every divorce suit here — will allow its courts to be used as the haven of the transient and dissatisfied spouse.’ ”

In Porter v. Porter, 209 Ark. 371, 190 S. W. 2d 440, we expressly stated that Squire v. Squire had become a controversial holding. In Tarr v. Tarr, 207 Ark. 622, 182 S. W. 2d 348, Mr. Justice Knox, in his splendid dissenting opinion, pointed to the conclusion we are now reaching in the present case.

A divorce decree in this state, to fulfill all the requirements for full faith and credit under the United States Constitution, can determine status only when there is a bona fide residence in this state. We quote from § 111 of the American Law Institute’s Restatement of the Law on Conflict of Laws: “A state- cannot exercise through its courts jurisdiction to dissolve a marriage when neither spouse is domiciled within the state.”

So, now, we overrule Squire v. Squire, supra, 1 insofar as it holds that a person who comes to this state for the purpose of obtaining a divorce and who does not have the animus manendi (which has always been held an essential ingredient of residence), may be said to be a bona fide resident of this state; and by “bona fide residence,” we mean the same as domicile. 2 . We quote from* and adopt as our own and as ruling in this state, the language of the United States Supreme Court in Williams v. North Carolina, 325 U. S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577, 157 A. L. R. 1366:

“Under our system of law, judicial power to grant a divorce — jurisdiction, strictly speaking — is founded on domicile. 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. Domicile 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 domicile of one spouse'within a state gives power to that state, we have held, to dissolve a marriage wheresoever contracted.”

This essential as to bona fide residence, must exist, not only at the time the decree is rendered, but also must have existed at the time the suit was filed. Parseghian v. Parseghian, 206 Ark. 869, 178 S. W. 2d 49; Porter v. Porter, 209 Ark. 471, 190 S. W. 2d 440; O’Keefe v. O’Keefe, 209 Ark. 837, 192 S. W. 2d 556.

Tested by tbe rule of these cases, the appellant failed to prove that he was a bona fide resident of Arkansas at the time his suit was filed; and his subsequent affirmative acts, in an endeavor to establish such residence, cannot be allowed any retroactive effect. So, the decree of the chancery court is reversed, and the cause dismissed, with appellee to pay all costs of the chancery court and this court.

1 An interesting discussion of the Squire case may be found in' § 134, et seq., “Arkansas Conflict of Laws,” a volume published in 1938 by Dr. Robert A. Leflar, now Dean of the Law School of the University of Arkansas.

2 See 17 Am. Juris. 278 and 279, “Divorce and Separation,” §§ 249-50; 27 C. J. S. 644, et seq., “Divorce,” § 76; annotations in 106 A. L. R. 6 and 159 A. L. R. 496, “What Constitutes Residence or Domicile Within State for Purpose of Jurisdiction in Divorce.” See, also, the article on “Extraterritorial Divorce” by Prof. Ernest G. Lorenzen in Yale Law Journal, Vol. 54, p. 799.