Stottlemyer v. Stottlemyer

329 A.2d 892, 458 Pa. 503, 1974 Pa. LEXIS 749

• Court: Supreme Court of Pennsylvania
• Decided: December 5, 1974
• Docket: Appeal, 27
• Status: Published

Opinions

Opinion by

Mr. Justice Pomeroy,

The Pennsylvania Divorce Law requires that at least one of the parties to a marriage shall have been a “bona fide resident” of the Commonwealth for a period of one year before either party may bring an action for divorce.¹ This appeal raises the question whether such a residency requirement is valid under the Constitution of the United States.²

Marian Stottlemyer, the appellant, and her husband, Eugene Stottlemyer, the appellee, were domiciled in Pennsylvania until they moved to Illinois in September, 1970. In August, 1971, after the onset of marital difficulties, the Stottlemyers returned to Pennsylvania and took up separate residences there. On November 16, 1971, the appellant filed a complaint in divorce against the appellee in the Court of Common Pleas of York County. From the averments of the complaint it is apparent that neither Marian Stottlemyer, the plaintiff, nor her husband had resided in Pennsylvania for one full year immediately prior to the commencement of the action.

Appellee filed preliminary objections asserting that because the residency requirement of the Act of 1929, supra n.l, had not been met, the court lacked jurisdiction over the cause of action. The trial court sustained the objections and dismissed the action. The Superior Court affirmed, per curiam.³ We granted allocatur because of the important constitutional questions presented.⁴

Appellant makes essentially two arguments in support of her position that the residency requirement is invalid. The first is that the statutory classification, by distinguishing between those domiciliaries who have lived in tlie state for one year and those who have not, violates her right to the equal protection of the laws in that it impedes her right of interstate travel and is not necessary to promote any compelling state interest. Appellant’s second argument is that the statute infringes her right to due process of law by denying her access to the courts for the purpose of obtaining a divorce. We are unable to agree, and will therefore affirm.⁵

I.

Appellant’s first challenge to the constitutionality of the residency requirement is based upon her right to the equal protection of the laws. At the outset, it is important to bear in mind that the equal protection clause has never stood for the absolute proposition that states may not classify individuals for different treatment. Traditionally, state statutory classifications have been upheld if they “bear some rational relationship to a legitimate state end. . . .” McDonald v. Board of Election, 394 U.S. 802, 809, 22 L.Ed.2d 739, 745 (1969). See also San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 55, 36 L.Ed.2d 16, 56 (1973); McGinnis v. Royster, 410 U.S. 263, 270, 35 L.Ed.2d 282, 288-89 (1973). In recent years, however, classifications which either are based upon certain suspect criteria or are violative of certain fundamental rights have been subjected to a stricter standard of review; such classifications have been upheld only if found necessary to promote a compelling state interest.⁶ Thus, the threshold inquiry in the determination of this case, as in any case in which a denial of equal protection is charged, is which standard of review is to be applied.

It is appellant’s position that the residency requirement in divorce actions must be subjected to the strict scrutiny of the “compelling state interest” test because it penalizes the exercise of her constitutional right of interstate travel. Although not guaranteed by any express provision in the Constitution, the right to move freely from state to state has long been recognized as a basic right of every American. United States v. Guest, 383 U.S. 745, 757-58, 16 L.Ed.2d 239, 249-50 (1966). “[T]he nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, and regulations which unreasonably burden or restrict this movement”. Shapiro v. Thompson, 394 U.S. 618, 629, 22 L.Ed.2d 600, 612 (1969). Finding that some residency requirements impinge upon this freedom of movement within the United States, the Supreme Court has struck down as violative of the equal protection clause state statutes imposing one-year residency requirements as conditions to the receipt of welfare benefits, Shapiro v. Thompson, supra, to the exercise of the right to vote, Dunn v. Blumstein, 405 U.S. 330, 31 L.Ed.2d 274 (1972), and to eligibility for non-emergency hospitalization and medical care, Memorial Hospital v. Maricopa County, 415 U.S. 250, 39 L.Ed.2d 306 (1974). In each of these cases, the Court has indicated that any statutory classification which “penalizes” the exercise of the right of interstate travel must be supported by a compelling state interest. Shapiro v. Thompson, supra at 634, 22 L.Ed.2d at 615; Dunn v. Blumstein, supra at 339, 31 L.Ed.2d at 282; Memorial Hospital v. Maricopa County, supra at 258, 39 L.Ed.2d at 315.

While it has thus been protective of the right to travel, the Court has, however, made it clear that residency requirements are not per se invalid. Memorial Hospital v. Maricopa County, supra at 256, 39 L.Ed. 2d at 314. Indeed, many such requirements may not even constitute “penalties” upon interstate travel and therefore may not bring into play the strict scrutiny of the “compelling state interest” test.⁷ For example, in Vlandis v. Kline, 412 U.S. 441, 37 L.Ed.2d 63 (1973), while it invalidated a Connecticut statute providing for certain irrebuttable presumptions relating to student residency,⁸ the Court indicated that reasonable residency requirements as conditions of eligibility for in-state tuition rates could be imposed due to the “special problems involved in determining the bona fide residence of college students who come from out of State to attend that State’s public university”. Id. at 452, 37 L.Ed.2d at 72. As illustrative, the Court cited its earlier summary affirmance of a federal district court decision upholding the constitutionality of a University of Minnesota regulation requiring that students be bona fide residents of Minnesota for one year as a condition to eligibility for in-state tuition rates. See Starns v. Malkerson, 326 F. Supp. 234 (D. Minn. 1970), affirmed, 401 U.S. 985, 28 L.Ed.2d 527 (1971).⁹ Similarly, in Hadnott v. Amos, 401 U.S. 968, 28 L.Ed.2d 318 (1971), the Supreme Court affirmed a district court decision which, although invalidating Alabama’s voter residency requirement, upheld a residency requirement for circuit judge candidates. See Hadnott v. Amos, 320 P. Supp. 107 (M.D. Ala. 1970).

Thus, the question of whether the “compelling state interest” test is to be applied in a given case where durational residency is involved depends upon whether the particular requirement under review imposes a penalty upon interstate travel. The question is not free of difficulty. As the Supreme Court acknowledged in its latest decision in this field, referring to its own decision in Shapiro v. Thompson, supra, “The amount of impact [upon travel] required to give rise to the compelling state interest test was not made clear.” Memorial Hospital v. Maricopa County, supra at 256-57, 39 L.Ed.2d at 314. The Court also implicitly recognized that the “ultimate parameters of the Shapiro penalty analysis” have not yet been defined. Id. at 259, 39 L.Ed.2d at 315.

Nevertheless, an examination of the three major Supreme Court decisions involving state residency requirements sheds some light upon the penalty concept. Shapiro v. Thompson, supra, involved welfare benefits, which for many persons are the sole means of obtaining the basic necessities of life. In Dunn v. Blumstein, supra, it was the right to vote which was involved, a right which the Court described as a “fundamental poiiticaj right” and the “preservative of all rights”. Id. at 336, 31 L.Ed.2d at 280. Memorial Hospital v. Maricopa County, supra, was concerned with medical care, another basic ingredient to the health and welfare of all people. In the case last cited, the Court emphasized that “governmental privileges or benefits necessary to basic sustenance have often been viewed as being of greater constitutional significance than less essential forms of governmental entitlements”. Id. at 259, 39 L.Ed.2d at 315. From a study of these decisions we conclude that the extent to which a residency requirement can be said to impose a penalty upon interstate travel is a function of the extent to which the subject matter of the requirement is either a fundamental civil or political right or a matter essential to basic sustenance.

The subject matter of the requirement here challenged is the right to seek a dissolution of the marital relationship, i.e., to bring suit for divorce. While this right is indeed important, as the increasing volume of divorces annually granted bears witness,¹⁰ and has a direct bearing on personal well being, including in some cases emotional health, we are not persuaded that it is a fundamental civil or political right, or a matter pertaining to the basic sustenance of an individual: it is not of a piece with receipt of welfare benefits, eligibility for hospitalization and medical care, or the exercise of the voting privilege.¹¹ It follows that imposition of a period of residence as a prerequisite to the exercise of the right is not such a penalty upon interstate travel as to call for application of the “compelling state interest” test. The residency requirement, therefore, is to be judged by the “rational relationship” standard traditional in equal protection challenges.¹²

The rational relationship analysis requires that a statutory classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 64 L.Ed.2d 989, 990-91 (1920).¹³ The application of this test must begin with the identification of the state interests involved in the statute in question. Essentially two state interests are promoted by durational residency requirements in divorce actions. The first is the deep concern of every state in the marital relationships of its domiciliaries. This Court has emphasized that marriage is more than a contract between two individuals; it is a relationship which “invests each party with a status towards the other and society at large, involving duties and responsibilities which are no longer matter for private regulation, but concern to the Commonwealth.” Moorehead’s Estate, 289 Pa. 542, 552, 137 A. 802 (1927) (quoting Coy v. Humphreys, 142 Mo. App. 92, 125 S.W. 877 (1910)).

The United States Supreme Court has long recognized this state interest. In Williams v. North Carolina I, 317 U.S. 287, 87 L.Ed. 279 (1942), the Court observed that “[e]ach state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders. The marriage relation creates problems of large social importance.” Id. at 298, 87 L.Ed. at 286. Similarly, as to divorce, the dissolution of the marriage relation, the Court in Williams v. North Carolina II, 325 U.S. 226, 89 L.Ed. 1577 (1945), stated, “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.” Id. at 230, 89 L.Ed. at 1581.

It is important, therefore, that it should be Pennsylvania, and not another state having no interest in the marriage, which exercises divorce jurisdiction in cases in which one of the parties is domiciled in the Commonwealth. Conversely, it is equally important that Pennsylvania refrain from purporting to exercise divorce jurisdiction in cases in which neither party is domiciled in this state. Failure so to refrain would intrude this state into relationships with which it has no interest, but in which one or more other states have a deep and legitimate concern. Such intrusions would be both unnecessary and unfortunate, and could also transform Pennsylvania into what is commonly referred to as a “divorce mill”.

It is because of this recognized interest of the state in the marriage relationship that jurisdiction to dissolve it normally requires the domicil in the forum state of at least one or the other party to the action. See Restatement (Second) of Conflict of Laws §§70, 71 (1971).¹⁴ This requirement of domicil, or a period of residency in the state which is the virtual eqivalent of domicil, gives rise to the second state interest promoted by divorce residency requirements, namely, that of insuring that a state’s judicial decrees are entitled to and be accorded full faith and credit in a sister state.¹⁵ Thus a divorce decree rendered by a court of a state in which neither party is domiciled is not entitled to full faith and credit. Williams v. North Carolina II, supra. And if, in an ex parte divorce proceeding, the forum state assumes jurisdiction because it finds the plaintiff to be domiciled within its borders, that determination is not conclusive upon the courts of another state in a later proceeding involving the defendant spouse if that spouse did not appear in the original divorce action. Such a determination “is entitled to respect, and more”, Williams v. North Carolina II, supra at 233, 89 L.Ed. at 1583-84, but reexamination by the courts of a second state is not foreclosed.¹⁶ If upon such a reexamination it is decided that there was no domiciliary basis for jurisdiction by the state rendering tbe decree, the divorce is not entitled to full faith and credit. In that event serious problems may arise if one of the parties has purported to remarry. Such a party and his or her new “spouse” may be subject to criminal prosecution for bigamy or adultery. The legitimacy of children may be brought into serious question. In case of the death of a party to either the first or a later marriage, there may be disputes as to which “spouse” is entitled to social security and other death benefits payable to surviving spouses and to the statutory share in the estate of the decedent.¹⁷

To summarize: Pennsylvania, like every other state, has a deep concern in the marital status of its domiciliarles. Should it undertake to exercise divorce jurisdiction where neither party is a domiciliary or the equivalent (see n. 14, supra), it would be deciding whether or not to dissolve a marriage in which it has no interest; by the same token, it would be interfering with a relationship in which another state or states do have a strong interest. In the process, it would be undermining the strength of its own judicial decrees. Finally, a divorce decree without jurisdictional basis creates serious problems not only for the parties to the original marriage, but also for innocent third persons who become involved as children or by purporting to marry one of the parties or who have legitimate claims to inheritance from one or another spouse. It is a legitimate state interest to seek to avoid such consequences by any reasonable means.¹⁸

It may be argued, as indeed appellant does, that all of this is beside the point: conceding that domicil is a prerequisite to divorce jurisdiction, a court should make an independent determination of the domicil of the parties in each case; there is no magic in a year of residence. It is true, of course, that domicil may be acquired in a brief time, and in some rare situations may not be acquired after a year of residence. Simply stated, a domicil of choice is established by the concurrence of (1) physical presence within a state (or other place), and (2) an intent to make a home there. Loudenslager Will, 430 Pa. 33, 37-38, 240 A.2d 477 (1968); Publicker Estate, 385 Pa. 403, 405-06, 123 A.2d 655 (1956); Restatement (Second) of Conflict of Laws §§15,16, 18 (1971). But it is a known jurisprudential fact that these requisites are deceptively simple, a¡nd are much more easily stated than applied.¹⁹ In particular, whether an individual possesses the necessary intent is often a very difficult question to answer. Generally, the court will consider the expressions of a person, see Publicker Estate, supra, but expressions of intent are not conclusive, see Dorrance’s Estate, 309 Pa. 151, 163 A. 303 (1932). A court will also look to acts and circumstances,²⁰ but the evidence is often ambiguous and reasonable minds may well differ as to the conclusion to be drawn from a particular set of facts.²¹

If the question of domicil is left entirely to a case by case adjudication, the issue will often be impossible to resolve with reasonable certainty that a correct result has been reached or that the determination will not later be overturned in a collateral attack in a second state.²² A one-year residency requirement substantially reduces this uncertainty with more conclusive evidence of intent. Residence in Pennsylvania for one year is itself strong evidence of an intention to remain in the state; and the expressions and actions of a person over a period of a year are obviously more reliable evidence of intent than the expressions and actions of that same person during a lesser period of days, weeks, or months.

In sum, not only does Pennsylvania have strong interests in exercising its divorce jurisdiction only in cases involving its domiciliaries, or those with whom it has ties almost equally strong, but the statutory distinction between those residents who have been in the state for one year and those who have not is reasonable and bears a “fair and substantial” relationship to those interests. We hold, accordingly, that the one year residency requirement in divorce actions is not violative of appellant’s right to the equal protection of the laws.

II.

The second basis upon which appellant attacks the one year residency requirement is the Due Process clause of the Fourteenth Amendment to the Constitution of the United States. Principal reliance is placed upon Boddie v. Connecticut, 401 U.S. 371, 28 L.Ed.2d 113 (1971). In Boddie the Supreme Court held it a violation of due process for Connecticut to require that indigents pay fees for filing complaints and effecting service of process in divorce actions.

The Court began its opinion by emphasizing two aspects of the case before it: (1) the basic importance of the marital relationship; and (2) the absolute nature of Connecticut’s exclusion from its courts. Id. at 376-77, 28 L.Ed.2d at 118. The Court then held that “due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.” Id. at 377, 28 L.Ed.2d at 118. Although the Court concluded that Connecticut could not deny divorces to indigents because they failed to pay the fees, it was careful to point out that it was going “no further than necessary” to decide the case before it. Id. at 382, 28 L.Ed.2d at 122. “We do not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of an individual, for as we have already noted, in the case before us this right is the exclusive precondition to the adjustment of a fundamental human relationship.” Id. at 382-83, 28 L.Ed.2d at 122.²³

Two more recent Supreme Court cases have already delineated limits to the reach of the Boddie decision. In United States v. Kras, 409 U.S. 434, 34 L.Ed.2d 626 (1973), the Court upheld the constitutionality of requiring filing fees as conditions to discharges in bankruptcy. The Court based its decision upon the fact that neither a fundamental interest nor an absolute exclusion was involved. In Ortwein v. Schwab, 410 U.S. 656, 35 L.Ed.2d 572 (1973), the Supreme Court upheld Oregon’s appellate court filing fee as applied to welfare recipients seeking review of decisions of the Public Welfare Division. The Court emphasized that no fundamental interest was involved.

The instant case is similar to Boddie in that it involves dissolution of the fundamental marital relationship. It is unlike Boddie, however, in that there is no danger that any individual will be permanently denied access to the courts. Those moving into Pennsylvania will always be able to bring an action in divorce in one year. Since we read Boddie as requiring both a fundamental interest and the threat of a permanent denial of access to the courts, invalidation of the Pennsylvania residency requirement would be a significant extension of the holding of that case. We find no warrant for such an extension, and therefore we decline to make it.²⁴

Order affirmed.

1 Act of May 2, 1929, P. L. 1237, as amended, 23 P.S. §16 (Supp. 1974) provides: “No spouse shall be entitled to commence proceedings for divorce by virtue of this act who shall not have been a bona fide resident of this Commonwealth at least one whole year immediately previous to the fiUng of his or her petition or libel: Provided, That, if the proceedings for divorce are commenced in the county where the respondent has been a bona fide resident at least one whole year immediately previous to the filing of such proceedings, in such case, residence of the libellant within the county or State for any such period shall not be required. The libellant shall be a competent witness to prove his or her residence.”

2 The constitutionality of state residency requirements in divorce actions has been upheld in the following eases: Sosna v. Iowa, 360 F. Supp. 1182 (N.D. Iowa 1973), probable jurisdiction noted, 415 U.S. 911, 39 L.Ed.2d 465 (1974) (one year), affirmed, January 14, 1975, 419 U.S. 393, 42 L.Ed. 2d 532; Shiffman v. Askew, 359 F. Supp. 1225 (M.D. Fla. 1973), affirmed sub nom. Makres v. Askew, 500 F.2d 577 (1974) (six months); Whitehead v. Whitehead, 53 Hawaii 302, 492 P.2d 939 (1972) (one year); Davis v. Davis, 297 Minn. 187, 210 N.W.2d 221 (1973) (one year); Ashley v. Ashley, 191 Neb. 824, 217 N.W.2d 926 (1974) (one year); Porter v. Porter, 112 N.H. 403, 296 A.2d 900 (1972) (one year); Coleman v. Coleman, 32 Ohio St. 2d 155, 291 N.E.2d 530 (1972) (one year); Place v. Place, 129 , 278 A.2d 710 (1971) (six months); Sternshuss v. Sternshuss, 71 Misc. 2d 552, 336 N.Y.S.2d 586 (1972) (one year).

On the other hand, such residency requirements have been held unconstitutional in the following cases: Larsen v. Gallogly, 361 F. Supp. 305 (D. R.I. 1973) (two years); Mon Chi Heung Au v. Lum, 360 Supp. 219 (D. Hawaii 1973) (one year); Wymelenberg v. Syman, 328 F. Supp. 1353 (E.D. Wis. 1971) (two years); State v. Adams, 522 P.2d 1125 (Alaska 1974) (one year); Fiorentino v. Probate Court, 310 N.E.2d 112 (Mass. 1974) (one year). No claim is made that the residency requirement violates Art. 1, §11 of the Pennsylvania Constitution.

3 Judge Hoffman filed a dissenting opinion in which Judge Spaulding joined.

4 Appellee has moved for dismissal of this appeal on the ground of mootness. While it is true that this appellant’s residence in the state has matured so as to comply with the statute, the problem is a recurring one, and appellate review of any such case within the one year residency period is unlikely. We will therefore not dismiss. See Roe v. Wade, 410 U.S. 113, 35 L.Ed.2d 147 (1973); Moore v. Ogilvie, 394 U.S. 814, 23 L.Ed.2d 1 (1969); Wiest v. Mt. Lebanon School District, 457 Pa. 166, 320 A.2d 362 (1974).

5 The Commonwealth of Pennsylvania, as amicus curiae, has submitted a brief in support of the constitutionality of the residency requirement.

6 For discussions of the “rational relationship” and “compelling state interest” tests, see the dissenting opinion of Mr. Justice Hablan in Shapiro v. Thompson, 394 U.S. 618, 655, 22 L.Ed.2d (1969), and Developments in the Law — Equal Protection, 82 Harv.L.Rev. 1065 (1969).

It bias been suggested that the Supreme Court has in fact employed a variety of standards of review in equal protection cases. See Vlandis v. Kline, 412 U.S. 441, 458-59, 37 L.Ed.2d 63, 75 (1973) (White, J., concurring); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 98-110, 36 L.Ed.2d 16, 81-88 (1973) (Marshall, J., dissenting). It has also been suggested that recently the Supreme Court, while demonstrating some reluctance to apply the “compelling state interest” test, has undertaken a greater degree of scrutiny under the “rational relationship” test. See Gunther, Foreward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972), especially at 20-37.

7 In Shapiro v. Thompson, supra at 638 n.21, 22 L.Ed.2d at 617 n.21, the Court was careful to state, “We imply no view of tlie validity of waiting period or residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth. Such requirements may promote compelling state interests on the one hand, or, on the other, may not be penalties upon the exercise of the the constitutional right of interstate travel.”

8 The statutory provisions struck down in Vlandis permanently and irrebuttably classified as non-residents for state university purposes any unmarried student whose “legal address” was outside the state at any time during the one-year period immediately prior to his or her application for admission and any married student whose “legal address” was outside the state when he or she applied for admission.

9 Mr. Justice Marshall, concurring in Vlandis, stated that he now entertained serious question as to the validity of the Starns decision in light of equal protection principles “which limit the States’ ability to set residency requirements for the receipt of rights and benefits bestowed on bona fide state residents,” citing Dunn v. Blumstein and Shapiro v. Thompson. Vlandis v. Kline, 412 U.S. 441, 455, 37 L.Ed.2d 63, 73 (1973). Mr. Justice Brennan joined in the concurring opinion.

It should be noted, however, that Starns was decided after Shapiro and that, after Vlandis was decided, the Court, in a case very similar to Starns, summarily affirmed a decision upholding a one-year residency requirement as a condition to qualifying for in-state tuition benefits at the University of Washington. See Sturgis v. Washington, 368 F. Supp. 38 (W.D. Wash. 1973), affirmed, 414 U.S. 1057, 38 L.Ed.2d 464 (1973) (Justices Brennan and Marshall were of opinion that the Court should have noted probable jurisdiction and set the case for argument).

10 In the Commonwealth of Pennsylvania 26,098 divorce actions were filed in 1970, 28,574 in 1971, 31,320 in 1972, and 33,967 in 1973. Administrative Office of Pennsylvania Courts, Fourth Annual Report on Judicial Case Volume, p. 11 (1973).

In the United States roughly 768,000 divorces — or 3.7 divorces for every 1,000 inhabitants — were granted in 1971. The total number of divorces and the divorce rate for 1,000 inhabitants for the years 1965-71 are as follows:

Total Rate

1965 479,000 2.5

1966 499,000 2.5

1967 523,000 2.6

1968 584,000 2.9

1969 639,000 3.2

1970 715,000 3.5

1971 768,000 3.7

United States Bureau of the Census, Statistical Abstract of the United States: 1912, table no. 62, p. 50.

11 The residency requirement in divorce actions need not serve to lock aggrieved spouses into intolerable situations, there being no residency requirement for actions for child custody, see Commonwealth ex rel. Hickey v. Hickey, 216 Pa. Superior Ct. 332, 264 A.2d 420 (1970), or for support and maintenance, see Act of May 23, 1907, P.L. 227, §1, as amended, 48 P.S. 131 (1965) ; Act of July 13, 1953, P.L. 431, §5, as amended, 62 P.S. 2043.35 (1968) ; and Act of December 6, 1972, P.D. 1365, No. 291, §11; 62 P.S. §2043-13(b) (Supp. 1974).

12 The rational relationship test as to divorce residency requirements has also been held to be the proper equal protection approach in the following decisions, all of which have upheld the requirements: Sosna v. Iowa, 360 F. Supp. 1182, 1184 (N.D. Iowa 1973), probable jurisdiction noted, 415 U.S. 911, 39 L.Ed.2d 465 (1974); Whitehead v. Whitehead, 53 Hawaii 302, 312, 492 P.2d 939, 945 (1972); Davis v. Davis, 297 Minn. 187, 193, 210 N.W.2d 221, 225 (1973); Ashley v. Ashley, 191 Neb. 824, 217 N.W.2d 926, 927 (1974); Coleman v. Coleman, 32 Ohio St. 2d 155, 158, 291 N.E.2d 530, 533 (1972).

13 This statement of the “rational relationship” test has been reiterated in Eisenstadt v. Baird, 405 U.S. 438, 447, 31 L.Ed.2d 349, 359 (1972), and Reed v. Reed, 404 U.S. 71, 76, 30 L.Ed.2d 225, 229 (1971).

14 A state may, nevertheless, possess sufficient interest in one or both spouses by reason of some relationship other than domicil to permit it to accept divorce jurisdiction. An example is residence (as distinguished from domicil) by one of the spouses for a substantial period, such as a year. See Restatement (Second) of Conflict of Laws §72 (1971).

15 Article IV, Section 1, of the Constitution of the United States provides: “Full Faitlx and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State.”

16 “The divorce court’s finding of domicil does not create jurisdiction. Domicil, like any other jurisdictional fact, is subject to collateral attack in the state of rendition or in any other state [subject, however, to the limitations of the rules of res judicata or estoppel]”. Restatement (Second) of Conflict of Laws §72, Comment C (1971).

17 The Introductory Note of The American Law Institute to its treatment of jurisdiction for divorce states the point well: “The question dealt with in this Topic is complicated by the variety of interests involved. Divorce is of obvious concern to the spouses themselves and to their children. It also is of especial interest to the state where the spouses make their home, that is, to the state of their domicil. Por marriage is more than a consensual relationship; it is an important social institution as well. There is no jurisdictional difficulty when the forum state is the domicil of both spouses. But if the divorce is sought at the domicil of only one spouse or of neither, and if the other spouse is not before the court, the question arises whether the divorce decree will be valid at all, and, if so, for what purposes. The latter inquiry is important because a divorce decree normally does more than sever the personal relationship of husband and wife and thus permit the spouses to remarry. Generally, it likewise affects their economic relations, such as by destroying the right of each to share in the other’s estate and by determining the extent, if any, to which one spouse must thereafter contribute to the other’s support.” Restatement 2d, Conflict of Laws 215-16 (1971).

18 Our Brother Robeets, in dissent, acknowledges that the state interests here involved are “weighty interests indeed, which may well be compelling” (see infra, p. 531 ). He concludes, however, that the Pennsylvania residency requirement is not “precisely tailored” to serve these interests, and therefore cannot withstand the strict scrutiny of the “compelling state interest” test. Tlius the principal disagreement between this opinion and the dissenting opinion concerns the choice of the equal protection standard to be applied. Under the “rational relationship” test which we here find to be the proper one, the legislature is not held to the “precise tailoring” approach; aU that is required is that the means adopted to achieve or preserve the state’s interest be reasonable, i.e., bears a “fair and substantial relation to the object of the legislation.” Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 64 L.Ed. 989, 990-91 (1920). See also Dandridge v. Williams, 397 U.S. 471, 483-87, 25 L.Ed.2d 491, 501-03 (1970).

19 As the Restatement puts it, “(t)he rules for the acquisition of a domicil of choice are relatively simple; the difficulty comes in applying them in situations where the person’s contacts are more or less equally divided between two or more states.” Special Note on Evidence for Establishment of a Domicil of Choice, Restatement (Second) of Conflict of Laws 81 (1971).

20 As to the factors which a court will consider in determining the question of domicil, see Texas v. Florida, 306 U.S. 398, 413-28, 83 L.Ed. 817, 828-36 (1939); Dorrance’s Estate, 309 Pa. 151, 163 A. 303 (1932); Special Note on Evidence for Establishment of a Domicile of Choice, Restatement (Second) of Conflict of Laws 81-83 (1971) ; Note, Evidentiary Factors in the Determination of Domicil, 61 Harv. L. Rev. 1232 (1948).

21 An example of the pitfalls and confusion which may result when two courts must each decide the question of the domicil of the same person at the same time is afforded by the case of Dr. John T. Dorrance, who had maintained residences in both Pennsylvania and New Jersey. In Dorrance’s Estate, 309 Pa. 151, 163 A. 303 (1932), the Supreme Court of Pennsylvania, Justices Schaffer and Kephart dissenting, decided that Dr. Dorrance had been domiciled in Pennsylvania at the time of his death and therefore that his estate was subject to Pennsylvania inheritance tax. The Prerogative Court of New Jersey, on the other hand, concluded in Dorrance’s Estate, 115 N.J. Eq. 268, 170 A. 601 (1934), affirmed, 116 N.J.L. 362, 184 A. 743 (1936), cert. denied, 298 U.S. 678, 80 L.Ed. 1399 (1936), that Dr. Dorrance had been domiciled in New Jersey and therefore that his estate was subject to death taxes in that state.

22 A thorough examination of the domicil of the parties in each case is unfeasible due to the large number of divorce actions filed each year, see note 10 supra. The task is further complicated by the fact that a large percentage of divorce cases are uncontested. In Allegheny County, for example, the comparative statistics for divorce trials before masters during a recent three-year period are as follows:

Contested Uncontested Total

July 1, 1969 — June 30, 1970 55 2,992 3,047

July 3, 1970 — June 30, 1971 42 3,648 3,690

July 1, 1971 — June 30, 1972 39 4,080 4,139

Court of Common Pleas of Allegheny County, Pennsylvania, Annual Report: 1971-72, p. 29.

23 This language in Boddie which describes marriage as a “fundamental human relationship” is relied upon by the dissenting opinion as support for its conclusion that a denial, even though temporary, of access to courts for the purpose of seeking dissolution of a marriage constitutes such a penalty upon the exercise of the right of interstate travel as to require application of the “compelling state interest” test (see infra, p. 526 n.6 and p. 530 n.16 and accompanying text). This argument is a non-sequitur. The Boddie decision is grounded entirely upon a denial of duo process of law; the opinion makes no reference to equal protection. We find no warrant for the transposition of the Boddie court’s due process rationale so as to equate postponement of a desired divorce with a penalty upon the right to travel and so a denial of equal protection of the laws under Shapiro, Dunn and Maricopa County. Neither can we accept the bland suggestion in the dissenting opinion, which it also relates to Boddie, that a married person, because he finds his present marriage “lifeless”, is for that reason invested with a legally protected “right to remarry.”

24 At least four other states have also rejected similar challenges, based upon Boddie, to the validity of divorce residency requirements. See Coleman v. Coleman, 32 Ohio St. 2d 155, 291 N.E.2d 530, 534 (1972); Davis v. Davis, 297 Minn. 187, 210 N.W.2d 221, 227 (1973); Porter v. Porter, 112 N.H. 403, 296 A.2d 900, 902 (1972); Whitehead v. Whitehead, 53 Hawaii 302, 492 P.2d 939 (1972).