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Migratory Divorce: Sherrer V Hastings Law Journal Volume 4 | Issue 1 Article 3 1-1952 Migratory Divorce: Sherrer v. Sherrer and the Future Harry Swanson Jr. Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Harry Swanson Jr., Migratory Divorce: Sherrer v. Sherrer and the Future, 4 Hastings L.J. 37 (1952). Available at: https://repository.uchastings.edu/hastings_law_journal/vol4/iss1/3 This Comment is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. COMMENTS MIGRATORY DIVORCE: SHERRER v. SHERRER AND THE FUTURE' By HARRY SWANSON, JR. It is an approved rule of the law that sister states cannot be compelled under the full faith and credit clause2 of the United States Constitution to enforce divorce decrees of another state unless the respective court of that state entertained jurisdiction over the subject matter by virtue of being the domicil' of at least one of the parties.' This statement is premised on the concept that marriage is a relationship in which the state is vitally interested, as well as the individual spouses.5 Thus a decree of divorce which dissolves the marriage cannot be considered as a mere personal judgment; the state, too, is concerned, and since this is the situation an act of law must operate 'This comment purports to deal only with case material in general and not with proposed legislation designed to remedy the problems which arise under our confusing migratory divorce laws. As of the date of printing, Senator McCarran of Nevada has secured passage in the Senate of a bill, S. 1331, 82d Cong., 2d Sess. (1952), designed to implement the full faith and credit clause of the Constitution. By the terms of this bill every state must accept the divorce decrees of every other state when these conditions have been met: (1) the decree is final as to the issue of divorce; (2) the decree is valid in the state where rendered; (3) the decree contains recitals setting forth that the jurisdictional prerequisites of such state to the granting of the divorce have been met; (4) the state wherein the decree was rendered was the last state wherein the spouses were domiciled together as man and wife, or the defendant in the proceeding for divorce was personally subject to the jurisdiction of the state wherein the decree was rendered or appeared generally in the proceedings therefor. For criticism of this bill, see Caffrey, Migratory Divorce: A Proposed Congressional Remedy, 1952 WAsH. U. L. Q. 53, 94-95 (1952) ; Ruymann, The Problem of Migratory Divorce: The Utility or Futility of Legislation, 5 LAw. & LAw N. 10, 13-14 (Win. 1951-52). 'U. S. CONST., ART. IV, § 1: "Full Faith and Credit shall be given in each State to the Public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof." Soon after the adoption of the Constitution, the First Congress, under the general authority of AiT. IV, § 1, enacted a statute, existing today as 28 U.S.C.A. 1738: "(The) acts, records, and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Posses- sions as they have by law or usage in the courts of such State, Territory, or Possession from which they are taken." It has been hinted that an application of the literal language of the full faith and credit clause and the statute enacted in 1790 would have resolved all doubts; in other words, each state would be compelled to recognize a judgment of a court of another state in the same manner as it would be recognized in the courts of the state in which the judgment 'was originally rendered. The dubious concept of jurisdiction would not be in question. Ruymann, supra, note 1, at 10. This was further noted by Mr. Justice Frankfurter in his dissent in Sherrer v. Sherrer, 334 U.S. 343, 357-58, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948), where he commented: "It would certainly have been easier if from the beginning the full faith and credit clause had been construed to mean that the assumption of jurisdiction by the courts of a state would be conclusive, so that every state would have to respect it. But such certainly has not been the law since 1873. Thompson v. Whitman, 18 Wall. 457." 'In Williams v. North Carolina, 325 U.S. 226, 229, 65 S.Ct. 1092, 89 LEd. 1577 (1945), the Supreme Court of the United States defined domicil as "a nexus between person and place of such (37) 38 THE HASTINGS LAW JOURNAL to terminate the relationship.6 But what is the law that is so to operate? An action for divorce has been said to be or have the characteristics of an in rem proceeding,7 the subject matter or "res" of the divorce proceeding being the marriage status. It follows that since a suit for divorce is in the nature of an action in rem, and the "res" or marriage status is situated in the domicil of the parties, the only law which can truly terminate the marriage status is the law of the domicil of at least one of the parties.' As a natural consequence of the rule that a judgment is not entitled to obligatory enforcement by any court unless the court rendering it had jurisdiction, plus the concept that a suit for divorce is a type of in rem permanence as to control the creation of legal relations and responsibilities of the utmost signifi- cance.' Goodrich states: "Domicil for divorce purposes is in turn dependent on two factors: a statutory period of residence within the state and the highly illusory 'intent' to make it the party's 'home'." GooDmCH, CONFLICT OF LAWS 64 (3d ed., 1949). 'However, it would appear that this statement may well be questioned in view of the Supreme Court's decision in Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948). Res judicata will bar any collateral attack on the migratory divorce decree regardless of the fact that the court rendering the decree had no jurisdiction over the subject matter, so long as there is personal jurisdiction over the parties. Thus bona fide domicil is not needed. Nonetheless, the law was made clear in Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942), that if one of the parties is domiciled in the state whose court rendered the divorce decree, the full faith and credit clause compels recognition in all states of the Union. In that case, A, married to C, and B married to D, went from North Carolina to Nevada, remained in Nevada for the requisite statutory residence period, obtained divorces from their respective spouses, C and D, and thereupon married each other. On returning to North Carolina, A and B were tried and convicted of bigamy, the North Carolina court refusing to recognize the Nevada decrees. On appeal to the Supreme Court of the United States, the conviction was reversed. The prosecution, in arguing the case, had admitted that there was some evidence sufficient to find actual Nevada domicile. Thus the Supreme Court did not pass on any question of domicil, but rather decided the case on the assumption that A and B were in fact domiciled in Nevada. This first Williams case is important since it overruled the controversial case of Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867 (1905), which laid down the rule that although one party might secure a valid divorce in the state in which he became actually domiciled, a sister state might not be compelled to honor such decree. See RESTATEMENT, CONFLICT OF LAws 113, which attempted to explain the rule in this case; see, also, Lorenzen, Haddock v. Haddock Over- ruled, 52 YALE L. J. 341 (1943). It might be well to note that Williams No. 1 has been substantially limited by Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948), and Kreiger v. Kreiger, 334 U.S. 555, 68 S.Ct. 1221, 92 L.Ed. 1572 (1948). In both of these cases, the husband and wife were domiciled in New York. The wife secured a separate maintenance decree in New York; the husband thereafter journeyed to Nevada, established a bona fide domicil in Nevada, and secured a divorce on the basis of constructive service. The Supreme Court of the United States held, in effect, that the divorce was divisible; that is, New York has an interest in the support of the wife, and the interest over such support cannot be taken away by Nevada, regardless of the fact that the husband was actually domiciled there. Nonetheless, the Nevada decree was given effect insofar as the marital status was concerned, and the parties were legally divorced in that respect. See note, I A.L.R.2d 1423 (1948) ; Recent Cases, 61 HAv. L. REv. 1454 (1948); Comment, 22 So. CALIF. L. Rav. 155 (1949) ; Comment, 1 STAN. L. REv. 137 (1948). 'GOODRCH, op. cit., supra, note 2, at 396. glbid. 'Id., at 411. See, also, RESTATEMENT, CONFLICT OF LAWS 110 (1934) ; RESTATEMENT, JUl1DC MENTS 74 (1942) ; Williams v.
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