Prosser v. Warner

47 Vt. 667

Opinion

The opinion of the court was delivered by

Ross, J.

In this case the plaintiffs seek to recover the amount of a decree of alimony granted to the plaintiff wile by the supreme court of New York, in June, 1868, in proceedings commenced by her to obtain a divorce from the defendant. The action is debt upon that judgment. The defendant having obtained oyer of the record of the proceedings in the supreme court of New York, and spread them upon the record in this case, by his plea insists that the same are insufficient in law to enable the plaintiffs to maintain their action. From the record of the proceedings in the supreme court of New York, it appears that the plaintiff, Sarah, was married in 1831, to the defendant, at Gorham, in the state of New York, and continued to live with him in that relation till November, 1863, when he left her. At the latter date, and for at least some six months prior thereto, they resided in Shelburne, in this state. The alleged cause for the divorce is the adultery of the defendant, committed within this state while they were resid ing in Shelburne, and subsequently thereto. In the same petition for divorce, the defendant is set up as having had his last known residence in Shelburne, and as then residing in parts unknown. Notice of the pendency of r.he divorce was given by publication, and by mailing a copy addressed to him at Shelburne. The defendant did not appear, and from the testimony in that suit, it appears that he was then residing in this state, but not at Shelburne. From these facts, it is apparent that the supreme court of New York neither had nor obtained jurisdiction of the person of the defendant. Unless a decree for alimony in a divorce suit, stands upon a different basis, and is to bo controlled by different principles, than an ordinary judgment for recovery of money, the defendant is not bound by the judgment rendered against him by the supreme court of New York. In order to give such validity to an ordinary judgment for the recovery of money as will render it enforceable in another jurisdiction, the court rendering the judgment must have not only jurisdiction of the subject-matter, but of the person of the defendant. Where the court has jurisdiction of the subject-matter, but not of the person of the defendant, its judgment may be enforceable and binding upon the defendant to the extent of his property taken in the suit or on the judgment, and which is located within the territorial jurisdiction of the court rendering the judgment. Such a judgment is not enforceable against the person of the defendant, and is not a judgment inter 2^artes, but rather a judgment in rem, affecting the property of the defendant within the territorial jurisdiction of the court. It is only enforceable against the defendant within the state or government in which the judgment was rendered. The publication of notice to the defendant, or the service of process upon him beyond the territorial limits of the state or government in which the court has jurisdiction, is ineffectual to confer jurisdiction over the person of the defendant. The effect of notice by publication, or of service of process beyond the territorial jurisdiction of the court rendering the judgment, as well as of a judgment for the recovery of money by a court which has not jurisdiction of the person of the defendant, has been fully considered by this court, in the re cent case of Price v. Hickok, 39 Vt. 292, and need not be further stated here. The principles enunciated in that case, render it apparent that the decree by the supreme court of New York, affords the plaintiffs no ground for recovery in this action, unless a decree granting alimony in a divorce case, stands on a different basis, and is to be governed by different principles, from an ordinary judgment for the recovery of money. No reason has been brought to our attention in the argument, for holding that a decree in a divorce suit, ordering the payment of money as alimony, has any greater validity or binding force than any ordinary judgment requiring satisfaction by the payment of money. The ordering of the payment of money as alimony, and the granting of alimony in any form, is but an incident to the granting of the divorce. Ordinarily, unless the divorce is granted, the court has no power or jurisdiction to grant permanent alimony. In rendering judgment against a defendant over whose person the court has not acquired jurisdiction, the court has usually jurisdiction of the subject-matter or contract which is the foundation of the judgment. It is doubtful if the supreme court of New York had jurisdiction of the causes of divorce< which occurred within this state, and while the defendant was residing here. It seems to be the better opinion among jurists, that, as a principle of general law, jurisdiction over causes of divorce depends, primarily at least, upon the domicil of the parties at the time the alleged cause occurred. The act need not necessarily have occurred within the local jurisdiction. If it occur elsewhere, while the parties, or one of them, are temporarily abroad, it will be referred, generally, to the place of their fixed domicil, and will have the same effect there as if committed within that jurisdiction. What violations of the marriage relation shall amount to causes for divorce, are established and declared by statute. Each legislative jurisdiction has its own independent causes, which are determined and administered by the courts .of that jurisdiction. We are not aware that any state ever attempted to try a cause for divorce according to the laws of another state, or to render such a judgment as a foreign court should have rendered upon the same facts. The jurisdiction to try causes of divorce, is confessedly local. They are tried by the law of the forum where tried ; and the facts must constitute a good cause of divorce by the law of the forum, or no decree can be rendered.

The regulation of the marriage relation, and of the acts or neglects that may amount to a good cause for sundering that relation, is a matter of internal police, important to,- and affecting, not only the parties to that relation, but the well-being of the state. It would seem it should be administered wholly by the courts of the state where the declared violations of the marriage relation occur, or where the parties are domiciled at the time. The acts relied upon for the cause of divorce, must have accrued while the parties were subject to the law of the forum where the divorce is granted. Otherwise the courts in one jurisdiction might determine and administer the marriage relation between citizens domiciled in another jurisdiction. This would allow one jurisdiction to pass laws, in the language of Lord Ellenborough in Buchanan v. Rucker, 9 East, 192, “to bind the rights of the whole world,” — a proposition too absurd to require refutation. In much the larger number of adjudged cases, and as we think of the better considered cases, it has been held that the judgment rendered in a suit for divorce, in a state where the cause of action did not accrue, and where the parties were not then living as husband and wife, and where the defendant in the proceeding never was served with process, nor voluntarily submitted to the jurisdiction of the court, is wholly void in any other jurisdiction than the one in which it was rendered. Barber v. Root, 10 Mass. 260; Hanover v. Tanner, 14 Mass. 227; Lyon v. Lyon, 2 Gray, 369; Dorsey v. Dorsey, 7 Watts, 349; Maguire v. Maguire, 7 Dana, 181; Hull v. Hull, 2 Strabh. Eq. 174; Edwards v. Green, 9 Louisiana, 317; Irby v. Wilson, 1 Dev. & Batt. Eq. 568, 576; Barden v. Fitch, 15 Johns. 121; Bradshaw v. Hatch, 13 Wend. 407; Vischer v. Vischer, 12 Barb. 640; McGiffert v. McGiffert, 31 Barb. 69.

The courts of New York have gone quite as far as those of any state, in holding such judgments void. In the case of Fitch v. Borden, it was held, that such a judgment rendered by the supreme court of this state, was wholly void, and was not admis sible in evidence for the defendant in a suit to recover damages from him for debauching the plaintiff’s daughter, to whom he had been legally married, if the judgment rendered by the supreme court of this state, divorcing him from a former wife, who was residing in Connecticut, and who was not served with process in this state, and did not appear in the suit, and whom he left in Connecticut when he came to this state to reside, was valid. The contrary doctrine has .been maintained in Harding v. Allen, 9 Greenl. 140, Ditson v. Ditson, 4 R. I. 89, and Tolen v. Tolen, 2 Black, (Ind.), 407. In Ditson v. Ditson, the validity of ex parte divorces in foreign states, is attempted to be upheld, on the principle that jurisdiction of the cause is acquired by the domicil of one of the parties, notwithstanding the cause accrued without the state, upon the ground that it pertains to all sovereign states to declare conclusively the status of their own citizens. But the soundness of these decisions is strongly questioned, both upon principle and authority, by the late Chief Justice Redfield, in an article in 3 Am. Law Register, n. s. 193, in which he thoroughly reviews the whole subject. He admits that such judgments may be a protection to the parties obtaining them, in the jurisdictions where they are obtained, but denies that they have any validity in foreign jurisdictions. Such, we think, is the better doctrine. Otherwise, in determining the status of its own citizens, such sovereign state, necessarily, conclusively determines the status of the citizen of another sovereign state, whenever the other party to the marriage relation is domiciled in a foreign jurisdiction. Such doctrine involves an unavoidable conflict in the jurisdiction over its own citizens, as such sovereign state must concede to other sovereign states the same right in regard to its own citizens, which it claims to exercise over the citizens of such other sovereign states.

Whatever may be the validity of such ex parte judgments upon the marriage relation of the parties named in the judgment, 'we have found no case which holds that the decree for the payment of money as alimony, stands any differently than any other ex parte judgment calling for satisfaction by the payment of money. We are unable to see any principle which distinguishes the validity of the former from that of the latter.

Judgment affirmed.