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Home > Journals > Michigan Law Review > MLR > Volume 30 > Issue 2 (1931)

 

Abstract

The New York Court of Appeals has re-emphasized some well-established principles of divorce jurisdiction in the recent case of Fischer v. Fischer. In a suit involving the validity of a second marriage, W proved a Nevada divorce from her first husband, a citizen of New York, who had been served in New York but had not appeared to defend the litigation. The court denied recognition to the Nevada decree because W's residence in Nevada, while it conformed with the statutory requirements of that forum, was proved to have been acquired solely for the purpose of securing a divorce. The invalidity of such a decree, the court said, was not "open to doubt." Indeed, the long settled rule is that one who goes to another state for the sole purpose of procuring a divorce, not intending a permanent change of residence, does not acquire a new domicil; hence, his divorce proceeding is a fraud both on the court of the forum and of his own state, and is void. Since domicil or residence is a jurisdictional fact, the second court has the power to inquire into the facts to determine for itself whether or not the court rendering the decree had jurisdiction. While a foreign judgment is considered prima facie valid, and clear and convincing proof is needed to impeach it, the tendency of late years has been to reexamine the facts when the question arises in relation to a foreign, and especially a Nevada, divorce decree. This policy has been crystallized in statutes in several states, a typical one reading substantially as follows: If any inhabitant go into another state in order to obtain a decree of divorce for a cause which occurred while in this state, or for a cause not a ground in this state, a decree so obtained shall be of no effect. The Missouri court, in Wagoner v. Wagoner, gave weight to these evidentiary facts, that the plaintiff had taken room and board for the statutory period of time only, had obtained a position in Reno from a "friend" who required only an hour's time each day, had told neither his business associates nor friends of his change of residence, and had returned to his home state immediately on obtaining his decree. On the basis of such showings the court decided that his residence was merely colorable, insufficient to confer on the Nevada court jurisdiction to decree a valid divorce.

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