Whitehead v. Whitehead

492 P.2d 939, 53 Haw. 302, 1972 Haw. LEXIS 115

• Court: Hawaii Supreme Court
• Decided: January 19, 1972
• Docket: 4996
• Status: Published

Opinions

OPINION OF THE COURT BY

MARUMOTO, J.

In this opinion, Sharon Ann Whitehead, plaintiff-appellee, will be referred to as plaintiff; John Jay Whitehead defendant, as defendant; and the State of Hawaii, intervenorappellant, as the State.

On October 21, 1969, plaintiff filed a complaint for divorce against defendant in the family court of the third circuit on the ground of grievous mental suffering inflicted upon her for more than 60 days. Defendant was served by registered mail at Bluebell, Utah, but did not answer.

By stipulation, the State was allowed to intervene. It filed an answer alleging that the court had no jurisdiction because plaintiff did not aver that she had resided in Hawaii for a continuous period of one year before the filing of her complaint. The averment of jurisdiction in the complaint was that plaintiff had been domiciled or had been physically present in the circuit for a continuous period of at least three months before its filing.

At the hearing in the family court, plaintiff testified that she came to Hilo on July 20, 1969, with the intention of remaining in Hawaii indefinitely. Previously, she had resided in Utah. She also established to the satisfaction of the court her allegation of grievous mental suffering.

The court denied the State’s claim of lack of jurisdiction, and entered a decree of divorce as prayed for by plaintiff.

The State has appealed from that denial. The sole question for decision on the appeal is the validity of the durational requirement of domicile or physical'presence for one year in the State contained in HRS § 580-1.

HRS § 580-1, in its entirety, reads as follows:

“§ 580-1. Jurisdiction; hearing. Exclusive original jurisdiction in matters of annulment, divorce and separation, subject to section 603-37 as to change of venue, and subject also to appeal according to law, is conferred upon the judge or judges of the family court of the circuit in which the applicant has been domiciled or has been physically present for a continuous period of at least three months next preceding the application therefor. No absolute divorce from the bond of matrimony shall be granted for any cause unless either party to the marriage has been domiciled or has been physically present in the State for a continuous period of at least one year next preceding the application therefor. A person who may be residing on any military or federal base, installation, or reservation within the State or who may be present in the State under military orders shall not thereby be prohibited from meeting the requirements of this section.”

The court denied the State’s claim upon a holding that the second sentence of § 580-1 violates the equal protection clause of the fourteenth amendment of the United States Constitution.

The holding is based on the following reasoning: the durational requirement in the second sentence of § 580-1 operates to create two classes of divorce applicants; one class consists of applicants who have been domiciled or have been physically present in the State for one year or more; the other class consists of applicants who have been domiciled or have been physically present in the State for less than one year; applicants in the former class are eligible for divorce; applicants in the latter class are not; such classification has no reasonable relation to any legitimate governmental objective; the classification, consequently, invidiously discriminates against divorce applicants in the latter class in violation of the equal protection clause.

It will be noticed that the first sentence of § 580-1 contains a durational requirement involving domicile or physical presence in a circuit. That provision is concerned with venue. The validity of the durational requirement therein is not in issue in this case.

The second sentence of § 580-1 is derived from § 55 of the Organic Act, which provided: “No divorce shall be granted by the legislature, nor shall any divorce be granted by the courts of the Territory unless the applicant therefor shall have resided in the Territory for two years next preceding the application, but this provision shall not affect any action pending when this Act takes effect.” Act of April 30, 1900, 31 Stat. 141, c. 339, § 55.

Before the enactment of the Organic Act, there was no such requirement in the Hawaiian law. The applicable statute merely designated the courts which were empowered to grant divorce and provided the grounds for divorce. L. 1870, c. 16, § 2.

The prescribed period of two years in the Organic Act was reduced to one year by the State legislature after Hawaii became a state by S.L.H. 1967, c. 76, § 2.

Hawaii is not alone in denying divorce to an applicant who has not been domiciled or has not been physically present in the state for a prescribed period before bringing the divorce action.

In the discussion below, the requirement of domicile or physical presence in the state for a prescribed period in state divorce statutes will be referred to as residential requirement for divorce.

In 1944, forty-one of the forty-eight states had residential requirement for divorce in which the prescribed period was one year or more. Handbook of National Conference of Commissioners on Uniform State Laws and Proceedings of the Fifty-Fourth Conference (1944), p. 267. In subsequent years the trend has been to reduce the prescribed period, but a majority of the states still require residence of at least one year.

Until recently, the validity of residential requirement for divorce was taken practically for granted. There were a few challenges, but they were consistently, and almost perfunctorily, rejected. Pugh v. Pugh, 25 S.D. 7, 124 N.W. 959 (1910); Worthington v. District Court, 37 Nev. 212,142 Pac. 230 (1914); Hensley v. Hensley, 286 Ky. 378, 151 S.W.2d 69 (1941).

It is evident that plaintiff filed her complaint in this case in the light of the decision in Shapiro v. Thompson, 394 U.S. 618 (1969).

Shapiro held that the statutes of Connecticut, Pennsylvania, and the District of Columbia which granted welfare assistance to persons who have resided in the jurisdiction for one year or more, but denied such assistance to persons who have not resided for at least one year, were in violation of the equal protection clause.

In so holding, the court stated that such statutes effected a classification which impinged upon the right of individuals to travel interstate; that the right to travel interstate is a fundamental right; that where a state statute touches upon a fundamental right, “its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest”, rather than under the traditional standard which holds that equal protection is denied only if the classification is without any reasonable basis.

Basing her position on such statements, plaintiff contended in the family court that the second sentence of § 580-1 interfered with her right to interstate movement without promoting any compelling state interest, and, for that reason, violated the equal protection clause.

The family court found no necessity for resorting to Shapiro. It stated: “Even applying the traditional standard, and not the stricter Shapiro standard, the waiting period requirement clearly violates the equal protection clause.”

The court reached that result by treating the residential requirement in the second sentence of § 580-1 as posing an issue of discrimination in the right of access to courts, rather than an issue of interference with the right of interstate travel.¹ The decision contains no discussion of the latter right.

Inasmuch as the family court based its holding on the traditional standard, we will first consider the validity of residential requirement for divorce under that standard.

Under the traditional standard, a statute does not deny equal protection “if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426 (1961); Dandridge v. Williams, 397 U.S. 471, 485 (1970).²

It is stated in Dutcher v. Dutcher, 39 Wis. 651, 657 (1876), with regard to an early Wisconsin statute imposing a one-year residential requirement for divorce: “The policy of the statute in requiring a year’s residence is obviously to secure good faith in the residence of parties coming from without the state and applying for divorce here.”

A similar statement is made in Ernest Rabel, The Conflict of Laws — A Comparative Study 393 (1945). The statement there is: “The minimum requirement of ‘residence’ is generally understood to evince the required mental purpose, which, to put it simply, is that of establishing a real and permanent domicil.”

We think that the statements quoted above give the real basis for the prevalence of the requirement in state divorce laws.

In the United States, divorce is a matter within the control of the states, subject to applicable federal constitutional limitations. But, for a state to exercise its control, it must have jurisdiction over the matter. It has jurisdiction when one of the parties to the action is domiciled therein. Restatement, Second, Conflict of Laws § 71 (1971).

A person establishes his domicile in a state by being physically present there with the intention of remaining indefinitely. For that purpose, no particular length of stay is necessary. Even a day will suffice. Anderson v. Anderson, 38 Haw. 261 (1948).

Thus, it may be argued that a requirement of an extended period of residence is improper as a means of assuring the existence of domicile.

However, we think that the states are justified in requiring an objective test of the establishment of domicile, such as is provided in residential requirement for divorce, because of the possibility of perjury if the finding on that issue is made dependent upon the testimony of an interested party. Wheat v. Wheat, 299 Ark. 842, 318 S.W.2d 793 (1958); Rabel, supra, p. 394; Ernest G. Lorenzen, Extraterritorial Divorce—Williams v. North Carolina II, 54 Yale L.J. 799, 801 (1945).³

It may be stated that, in Shapiro, one justification advanced for the residential requirement in controversy was that it provided an objective test of residency, but the court rejected the justification. However, in that case, the justification was offered in connection with the question as to whether there was any compelling state interest to warrant the requirement, not to show the existence of any state of facts which reasonably might be conceived to justify the requirement under the traditional standard.

We hold that the residential requirement for divorce in the second sentence of § 580-1 is not in violation of the equal protection clause under the traditional standard.

This brings us to a consideration of the validity of residential requirement for divorce under the stricter standard mentioned in Shapiro. The stricter standard applies to a situation involving a violation of fundamental right. The fundamental right claimed to be violated here is the right of individuals to travel interstate.

The right of interstate travel was held to be constitutionally protected under decisions rendered before Shapiro. Crandall v. Nevada, 73 U.S. 35 (1867); Edwards v. California, 314 U.S. 160 (1941); United States v. Guest, 383 U.S. 745 (1966). But the protection accorded to that right under pr e-Shapiro decisions was against direct impingement thereon, not against impingement which was indirect and incidental.

In Williams v. Fears, 179 U.S. 270 (1900), it was held that a Georgia statute imposing an occupation tax upon persons hiring laborers to work beyond state limits did not violate the right. The court stated: “If it can be said to affect the freedom of egress from the State, * * * it is only incidentally and remotely.” (179 U.S. 274).

The welfare statutes considered in Shapiro contained two residential requirements. One required that applicants for welfare assistance be residents of the jurisdiction from which benefits were sought. The other required that applicants be residents of the jurisdiction for at least one year before applying for welfare assistance. The validity of the first requirement was not an issue in the case. Only the durational residential requirement was in issue.

Durational residential requirements do not interfere directly with the right of interstate travel. Their impact upon the right, if any, is indirect, in that they may operate to deter some individuals from exercising the right.

Shapiro extended the protection accorded to the right of interstate travel to a situation involving indirect impingement resulting from the deterrent effect of durational residential requirement in welfare statutes. But the court stated: “We imply no view of the 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 constitutional right of interstate travel.” (394 U.S. 638, footnote 21).

So, Shapiro does not outlaw all durational residential requirements Some may be valid. The difficulty which confronts us is that Shapiro did not provide any criteria for determining the requirements which are valid and those which are not.

In the circumstance, we approach the problem at hand by examining the factors in the durational residential requirement in the welfare statutes considered in Shapiro which induced the court to declare the requirement invalid, and comparing them with the factors in residential requirement for divorce to see whether there are essential differences which render the latter valid.

The court stated in Shapiro:

“There is weighty evidence that exclusion from the jurisdiction of the poor who need or may need relief was the specific objective of these provisions. * * *

“We do not doubt that the one-year waiting period device is well suited to discourage the influx of poor families in need of assistance. An indigent who desires to migrate, resettle, find a new job, and start a new life will doubtless hesitate if he knows that he must risk making the move without the possibility of falling back on state welfare assistance during his first year of residence, when his need may be most acute. But the purpose of inhibiting migration by needy persons into the state is constitutionally impermissible.” (394 U.S. 628-629).

It appears from the foregoing statement that the following factors were controlling in Shapiro: first, the durational residential requirement was specifically designed to exclude from the jurisdiction imposing the requirement indigents who needed or might have need for welfare assistance. Second, the relief which the requirement was designed to withhold from the indigents involved their need for basic necessities of life which were immediate and could not be postponed. Third, the efficacy of the requirement accomplishing its objective was great. The accomplishment of the objective was more than a possibility; it was a probability, if not a near certainty. This was so because the requirement affected the indigents’ immediate livelihood.

In Shapiro, the factors mentioned above combined to impinge upon the exercise of the right of indigents to travel interstate substantially and in a real sense.

In the case of residential requirement for divorce, we may safely say that exclusion from a jurisdiction of persons contemplating divorce was not its specific purpose. The states enacted siich requirement in an era when travel was difficult and society was considerably less mobile than today. Worthington v. District Court, supra.4 The requirement is concerned with the establishment of domicile, as stated earlier in this opinion.

Also, the relief delayed by the requirement does not have the urgency which is present in the case of indigents’ need for necessities of life. Divorce can wait. It is theoretically conceivable that a person may abandon his plan to establish a home in another state because he cannot get immediate divorce there. However, because divorce usually does not have immediacy and can wait, we do not think that the requirement operates in any appreciable number of cases to deter persons from moving into other states to establish their homes.

In our opinion, the probability of residential requirement for divorce operating to deter the exercise of the right of interstate travel is too remote to render it invalid. In this respect, the requirement is like the provision in the Georgia statute which was declared valid in Williams v. Fears, supra, on the ground that it affected the right of interstate travel only incidentally and remotely.

We thus hold that, under the stricter standard also, the residential requirement for divorce in the second sentence of § 580-1 does not violate the equal protection clause.

We have thus far discussed the contentions advanced by plaintiff at the hearing in the family court and at the oral argument in this court. Subsequent to the oral argument here, the Supreme Court of the United States decided Boddie v. Connecticut, 401 U.S. 371 (1971). In a supplemental brief, which we permitted plaintiff to file, she urges Boddie is apposite.

Boddie was an appeal from a decision of a three-judge federal district court in Connecticut, reported in 286 F. Supp. 968 (1968). The plaintiffs in the case were welfare recipients who were barred from having their divorce actions heard by the Connecticut state courts having jurisdiction over divorce because of the refusal of the court officers to accept their complaints for filing without the prepayment of court costs.

At the time of the entry of the district court decision, section 46-15 of the Connecticut statutes required the plaintiffs in divorce actions to have continuous residence of three years in the state, except in certain specified circumstanes.⁵ The • validity of that residential requirement was not an issue in the case.

The Supreme Court held that the denial of access to courts for divorce to indigents by reason of inability to pay court costs violated the due process clause of the fourteenth amendment.

In so holding, the court stated that the states have seen fit to oversee many aspects of the marriage institution because “marriage involves interests of basic importance in our society”; that without prior judicial imprimatur, individuals may freely enter into and rescind commercial contracts, but they may not covenant for or dissolve marriages without state approval; that even where all substantive requirements are concededly met, two consenting adults may not divorce and mutually liberate themselves from the legal obligations that go with marriage, and more fundamentally the prohibition against remarriage, without invoking the state’s judicial machinery; 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”; and that “given the basic position of the marriage relationship in this society’s hierarchy of values and the concomitant state monopolization of the means for legally dissolving that relationship, due process does prohibit a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages.” (401 U.S. 374, 376, 377.)

The reasoning of the court may be paraphrased as follows: marriage involves interests of basic importance in our society; consequently, the states oversee many aspects of the institution of marriage; one aspect is divorce, or the dissolution of marriage relationship; in connection with divorce, each state has established certain substantive requirements and requires that proof of satisfaction of the substantive requirements be made in court in a judicial proceeding; in such a situation, where relief is obtainable only through judicial proceeding, an indigent may not be denied, solely because he is poor and cannot pay court costs, an opportunity to get into court to prove that he has met the requisite substantive requirements, without violating the due process clause.

Thus, Boddie did not touch upon the constitutionality of state action with respect to substantive requirements for divorce. It is concerned only with a denial of the right of access to court to an applicant for divorce solely because of his indigency. This is emphasized by the court in the concluding paragraph of its opinion as follows: “In concluding that the Due Process Clause of the Fourteenth Amendment requires that these appellants be afforded an opportunity to go into court to obtain a divorce, we wish to re-emphasize that we go no further than necessary to dispose of the case before us, a case where the bona fides of both appellants’ indigency and desire for divorce are here beyond dispute. * * * The requirement that these appellants resort to the judicial process is entirely a state-created matter. Thus we hold only that a State may not, consistent with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, pre-empt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so.” (401 U.S. 382).

The residential requirement for divorce in the second sentence of § 580-1 does not deny access to courts to applicants for divorce. Under our statutes, access to courts for divorce is governed by tbe first sentence of § 580-1, the validity of which is not in issue in this case although it contains a durational residential requirement. Plaintiff complied with the requirement in the first sentence. So, she got into court, and the court heard her case.

The second sentence of § 580-1 provides that “no divorce * * * shall be granted” unless either party to the marriage has satisfied the durational residential requirement stated therein. It does not say that the court shall not* hear a divorce case in which the requirement has not been met.

The plain meaning of the language of the second sentence of § 580-1 is that satisfaction of the residential requirement is a condition to the granting of divorce by the court which has heard the case, not a condition which deprives a divorce applicant of a forum in which his case may be heard.

This court has held that the residential requirement for divorce in our statutes is jurisdictional. Zumwalt v. Zumwalt, 23 Haw. 376 (1916); West v. West, 35 Haw. 461 (1940); Anderson v. Anderson, supra. The word “jurisdictional”, as used in that connection, does not have reference to the jurisdiction of a court to hear and act on a case; rather, it refers to the jurisdiction which every state must have over the marriage relationship as a prerequisite to exercising its control over divorce. This is evident from the statement in Zumwalt v. Zumwalt, supra, 380, that “the circuit judge was without authority to grant the decree in the absence of proof of domicil for the necessary length of time.” The statement is not that the circuit judge was without authority to hear the case in the absence of the required proof of domicile.

The second sentence of § 580-1 is a provision which sets forth a substantive requirement for divorce. In this respect, it is similar to § 580-41, which sets forth grounds for divorce. An applicant for divorce who fails to prove a ground for divorce will not be granted a divorce because of failure to satisfy a substantive requirement for divorce. Similarly, an applicant who fails to prove that he has been domiciled or has been physically present in this State for one year will not be able to obtain a divorce because of failure to satisfy a substantive requirement, not because he is denied access to court.

Thus, we do not think that Boddie is relevant to the determination of the validity of the residential requirement for divorce in the second sentence of § 580-1.⁶

In concluding this opinion, we recognize that in recent years our society has become much more permissive about divorce than in the past.. This is reflected in the successive drafts of the uniform divorce act recommended for enactment by state legislatures by the National Conference of Commissioners on Uniform State Laws.

The early drafts based the granting of divorce on the traditional concept of fault of one of the parties to the marriage. With respect to residential requirement for divorce, the prescribed period was two years in the earliest draft. In subsequent drafts, the period was reduced to one year, then to six months.

The latest draft provides for the entry of divorce decree if: “(1) the court finds that one of the parties has been a resident of this State, or is a member of the armed services who has been stationed in this State, for 90 days next preceding the commencement of the proceeding or the entry of the decree”, and “(2) the court finds that the marriage is irretrievably broken.”

Thus, the draft projects a no-fault concept of divorce. However, for the purpose of this case, the significance of the draft lies in the retention of residential requirement for divorce. as a substantive requirement, although the prescribed period has been reduced to ninety days preceding the commencement of the proceeding or the entry of the decree.

The conference approved the draft in August 1970, more than one year after Shapiro. The draft was prepared by two law professors, as reporters. Acting for the conference in connection with the preparation of the draft was a committee of thirteen members — two judges, four law professors, and seven practicing attorneys. The eminent reporters and committee members obviously deemed that residential requirement for divorce was valid, despite Shapiro.

We do not think that the length of the prescribed period of residence, whether it be one year or ninety days, is material to the validity of residential requirement for divorce. If a prescribed period of one year discriminates against recent residents, so does a prescribed period of ninety days. We think that if the validity of residential requirement for divorce is conceded, the determination of the length of the prescribed period is a matter .entirely within legislative discretion.⁷

Reversed.

Morton King, Deputy Attorney General (Bertram T. Kanbara, Attorney General, with him on the brief) for defendant intervenor-appellant. Robert Gilbert Johnston, Chief, Civil Division, and Andrew Levin, Associate Counsel, Legal Aid Society of Hawaii, for plaintiff-appellee.

1 The family court stated: “The question in this case is whether under the United States Constitution the State can deny access to the courts to a resident of less than one year, who believes that she has adequate grounds for divorce, until she acquires a total residence period of one year by waiting, and further residing continuously in the State of Hawaii, when the resident who has resided for over one year is not so denied, and may go to the courts for relief, without further waiting, upon belief that there is sufficient grounds for divorce.”

2 In Dandridge v. Williams, Mr. Justice Marshall stated in dissent that the court’s holding hfi that case meant that “regardless of the arbitrariness of a classification it must be sustained if any state goaj can be imagined that is arguably furthered by its effects.”

3 It is stated in Lorenzen, supra: “It has been estimated that 8,616 divorces were granted in Nevada in 1942 and 11,399 in 1943, the great majority of which must have been obtained by nonresidents who went to Nevada solely for divorce purposes, remaining there only the required six weeks. All the while they contemplated returning to their home states immediately after their divorces were secured, yet they all swore falsely that they intended to make Nevada their permanent home, having been warned by local counsel that, unless they did so, they would be out of court. On advice of counsel they also took steps which would be accepted by the Nevada courts as corroborating their sworn statement but were actually nothing more than sham and camouflage.”

4 In Worthington v. District Court, the court stated: “[0]ur law in its present form * * * was passed at the first session of the territorial legislature for the people here before there was any railroad in this state or modern means of transportation, when the laws of some other states did not require as long a residence, and when there was no anticipation that people would come to this state for the purpose of obtaining divorces.” (37 Nev. 226, 142 Pac. 235).

5 Boddie was commenced in the United States District Court of Connecticut on March 13, 1968. At that time, Connecticut General Statutes, § 46-15, read: “If the plaintiff has not continuously resided in this state three years next before the date of the complaint, it shall be dismissed unless the cause of divorce has arisen subsequently to the removal into this state, or unless the defendent has continuously resided in this state three years next before the date of the complaint and actual service has been made upon him, or unless the plaintiff was domiciled in this state at the time of the marriage and before instituting the complaint returned to this state with the intention of permanently remaining. * * * ” In 1969, the residence requirement was reduced to one year by Public Act 18.

6 In Wymelenberg v. Syman, 328 F. Supp. 1353 (E.D. Wis. 1971), a three-judge federal district court in Wisconsin declared the two-year residential requirement for divorce in § 247.05(3) of the Wisconsin statutes to be invalid under Shapiro and Boddie, “whether judged by the equal protection clause ‘compelling interest’ test or by the due process clause ‘overriding significance’ test.” As is stated in our opinion, we take a different view of the applicability of Shapiro and Boddie. However, it may be stated that the wording of the Wisconsin statute is such that it is possible to construe the two-year residential requirement therein as limiting the jurisdiction of the court and not as referring to the jurisdiction of the state over divorce.

7 We agree with the following statement in Worthington v. District Court, supra:

“If, as petitioner contends, under the provisions of the United States Constitution and the fourteenth amendment guaranteeing to the citizens of the various states equal protection of the laws, our statutes cannot discriminate against nonresidents desiring divorce, and our Legislature cannot require persons coming to this state and seeking divorce to reside here one year, they cannot be required to reside here six months, nor for any length of time, but would be entitled to maintain an action for divorce for the causes specified under our laws, without taking up their residence here.

“If, contrary to the doctrine universally recognized in other states and in foreign civilized countries, citizens of other states, without obtaining a domicile here, were entitled to apply for divorce in our courts under the provisions of the federal Constitution granting citizens of other states equal protection of the laws, the same condition would exist in all the other states, for the federal Constitution applies equally to all, and every citizen of the United States would be free to go into any adjoining or other state where a divorce might be most easily obtained and start an action, without having any residence or domicile in that state. If residence may be required, necessarily the Legislature must have the power to determine the period.” (37 Nev. 240, 142 Pac. 240).