Dunham v. Dunham (162 Ill. 589, 1896)

Mr. Justice Carter

delivered the opinion of the court:

The principal question of law presented by this record is, what was the effect of the decree of divorce obtained by appellant, against appellee, in the circuit court of Lincoln county, State of South Dakota, and set up in her cross-bill in this cause in the circuit court of Cook county as a bar to the further maintenance of this suit? ' As the Dakota decree was obtained after issue made in this cause, it is conceded, and there can be no doubt, that to avail herself of such decree as a defense to this suit the rules of equity pleading required that she should set it up by cross-bill. Story’s Eq. PI. (9th ed.) sec. 393; Ferris v. McClure, 36 Ill. 77; Jenkins v. International Bank, 111 id. 462.

If we assume, under the allegations of the cross-bill admitted by the demurrer, that the appellant had, in good faith, resided in the State of South Dakota a sufftcient length of time under its laws to give its courts jurisdiction over her and her status as a married woman, and that the proceedings there were without fraud on her part, then, if the appellee had been personally served with process in that State or had voluntarily appeared as a party in the case,' there could be no doubt, from the standpoint of any of the authorities, that the South Dakota decree would be a complete bar to a suit for divorce brought by appellee in this State, and that it would make no difference that the suit here was first begun. (Jones v. Jones, 108 N. Y. 415; 2 Bishop on Marriage, Div. and Sep. secs. 1590, 1595.) _ But where the decree first rendered is obtained in a suit against a nonresident spouse who is not personally served with process within the jurisdiction of the court or who has not appeared in the cause, there is much conflict in the authorities as to the effect of the decree on the status of the non-resident spouse, and consequently on a suit for divorce brought by such spouse in his or her own jurisdiction.

Without reference to the evidence, and confining ourselves to the pleadings in considering the demurrer to the cross-bill, it is seen that this suit was brought by appellee in the circuit court of Cook county and personal service of process had upon appellant in that county, and that she appeared and filed her answer to the bill before she commenced her suit in South Dakota, and that appellee was never served with process in South Dakota and^ never appeared in the suit begun there, so that, so far as appellee was concerned, the South Dakota decree was based upon substituted service merely,—that is, upon publication of notice as required in that State, and personal service in Illinois with a copy of such notice and of the complaint. The doctrine seems to be held in ¡New York and in some other jurisdictions, that in such a case, while the decree is valid as to the party in whose favor it is granted, it is void as to the non-resident defendant. The theory of the cases so holding appears principally to be, that proceedings for divorce are in personam and not in rem, and as no valid judgment in personam can be rendered in other cases by a court having no jurisdiction over the person of the party against whom it is rendered, neither can such a judgment be rendered in suits for divorce. But it would seem clear that if such theory were carried to its legitimate conclusion the decree would be void as to both parties, for to give it any validity, even as to the party securing it, the proceedings must be regarded to some extent as in rem, and that the res is the marriage status. | It is not doubted in any of these cases, or by any one, that each State has the exclusive right to determine by its own adjudication the status of its own citizens domiciled within its own jurisdiction. It would seem to follow, therefore, that if the appellant, on a separation from appellee, her husband, for adequate cause, in good faith removed to South Dakota with the intention of permanently residing there, and did become a dona fide resident there, the courts of that State had jurisdiction to adjudicate upon her status as a married woman, and, for any cause sufficient under the laws of that State for the purpose, could change her status to that of a single woman. This cannot be admitted without conceding also that a suit for divorce, so far as it seeks to dissolve the marriage relation merely, is a proceeding in rem, and that the thing proceeded against is the status' of marriage.

It is, however, insisted, and is sometimes said, that there is a status of the wife as a married woman and a status of the husband as a married man, and that each may proceed in different jurisdictions to change, and may thereby change, his or her own status without affecting that of the other,—and this is the practical effect of the doctrine as laid down by the courts of New York, although, as before stated, it seems that proceedings for divorce are there regarded as being in personam, rather than as in rem. In People v. Baker, 76 N. Y. 78, the Court of Appeals, by a divided court, affirmed a conviction of bigamy against a man, a citizen of that State, who married again in New York after his wife, domiciled in Ohio, had procured a divorce from him valid under the laws of Ohio, though based upon substituted service only. By the laws of Ohio the wife was lawfully divorced. By section 1, article 4, of the constitution of the United States, and the legislation of Congress thereunder, the decree was entitled to the same full faith and credit in New York as, by law and usage, it was entitled to in Ohio. The consequence was, that the wife was, and on removing to New York would continue to be, a single woman who might lawfully marry, while the husband was a married man, having for his wife one who might at the same time become or be the lawful wife of another man. We cannot regard as sound a doctrine leading to such results. We are unable to see the force of the reasoning which is used to support judicial conclusions that one of the married pair may in one jurisdiction, by virtue of its laws and in honest compliance with them, obtain a valid decree of divorce which, as to the one obtaining it, is valid and binding in every State in the Union, leaving such a one single and free to re-marry in any State, while the matrimonial bonds are still nnsevered as to the other party, making him a bigamist should he re-marry, and his children, the fruit of such re-marriage, illegitimate. It would seem to be as logical to say that one of the Siamese twins might have been severed from the other without that other being severed from the one.

It should not be forgotten that it is the policy of a great majority of the States, and of our own State as well, as established by legislative enactments, to grant judicial decrees of divorce to bona fide residents who comply with the statutory requirements, where substituted service merely is had upon the non-resident party. To hold such decrees valid only within the jurisdiction granting them, or valid only as to those in whose favor they are granted, leaving the non-resident parties still bound, would not only be inconsistent with the policy of our own laws and in violation of inter-State comity, but would, when it is considered how great is the number of such decrees entered every year, eventually lead to the most perplexing and distressing complications in the domestic relations of many citizens in the different States.

No such results can flow from the rule governing the relation of guardian and ward, master and servant or principal and agent, and no such analogy exists between those relations and that of husband and wife, as that the same principle should be applied in their formation, effect and dissolution, as supposed by counsel. Marriage, as understood among civilized people, is the union of one man with one woman, and if valid where celebrated is valid everywhere; and it would seem to follow from the “full faith and credit” clause of the constitution of the United States, and it ought to follow as a matter of logic and from the comity of States, that where that union is lawfully dissolved in one jurisdiction where one of the parties is in good faith domiciled, and in honest compliance with its laws, it should be treated as dissolved everywhere, (1 Nelson on Divorce and Sep. 65,) though it must not be forgotten that the law favors marriage but does not favor divorce. It is no sufficient answer to say that a husband or wife in fault may wrongfully leave the other, and, after acquiring a domicil in another jurisdiction, sue for and obtain a divorce without the knowledge of the innocent party. The most sacred relations of life are, from their very nature, capable of the greatest abuses; and it would generally be true that the innocent party could proceed in his or her own jurisdiction, and the foreign decree,- even if first obtained, would, like any other, be open to attack for fraud or lack of jurisdiction,—defenses which in most cases would be found sufficient, for in all cases of such ex parte proceedings the courts should hold the party so applying to the utmost candor and good faith, not only to the opposite party but to the court as well. Besides, it would seem to. be a necessary incident to the marriage relation, that whenever the parties to it have become separated and reside in different jurisdictions, the status of marriage of each to the other follows each, and inheres in the jurisdiction in which he or she is domiciled, and while a bill will not lie for a divorce in favor of a non-resident or to change his status from a married to a single man, yet when the status of marriage is destroyed in one jurisdiction as to the one there residing it is necessarily destroyed in the other, for, as well said by Mr. Bishop,“matrimony can only exist in pairs.” This author, in maintaining that the marriage status may be changed by the jurisdiction where only one of the parties resides, among other things says: “The law knows only two forms of status as to matrimony,—married, single. A man who has a wife, or a woman who has a husband, is married. One without a husband or wife is not married—is single. And it is immaterial to this proposition whether or not either or both were once married, or whether the dissolution of a former marriage was by death or divorce. Taking one party out of- the marriage, by whatever means, leaves the other single. A husband without a wife or a wife without a husband is unknown to the law.” 2 Bishop on Marriage, Div. and Sep. sec. 1613; 1 id. secs. 698-702. See, also, to the same effect, the late work of 1 Nelson on Divorce and Sep. 53, et seq.

In Brown on Jurisdiction (sec. 76) the author says: “In the relation in which it (the status or condition) arises it is purely transitory, yet follows as a condition attached to the person, as, when a man and woman are married each carries that status, so that a court having jurisdiction over one may dissolve it as to both. It arises more commonly in suits for divorce, and it may now be said that where one of the parties becomes a resident of the State or is domiciled therein, he or she may apply to the court of the State having jurisdiction over that party as a citizen thereof, and the court may dissolve that relation or status, although the other spouse has never been within the jurisdiction of the State and owes no allegiance to it. It, therefore,-is necessarily held to be a thing, within the meaning of the law, that is attached to citizenship or a domiciled person in the State, and the jurisdiction grows out of that thing.”

In Black on Judgmepts (sec. 822) it is said: “In America it is generally held, and, indeed, almost universally, that as a proceeding in divorce is intended to affect the status of the parties, and is therefore essentially in rein, the judgment pronounced, whether in a foreign country or in a sister State, by a court having lawful jurisdiction of the cause, and in the absence of fraud, is valid and binding everywhere and in all subsequent controversies, provided the applicant was dona fide domiciled within the territorial jurisdiction of the court, although the other party, being a non-resident, was notified only by advertisement or some other species of constructive service.” And after, commenting upon a line of decisions holding the contrary view the same author (sec. 932) says: “But some of these cases have been overruled, others have been tacitly repudiated, and the true, fundamental principles governing the question have become more and more clear to the courts and have gained weight with the increasing body of decisions, so that now the rule may be regarded as settled by the great preponderance of authority, that a decree of divorce pronounced by a competent court, in favor of a dona fide domiciled citizen of the State and against a non-resident, where service of process was made by a reasonable constructive notice, and in the absence of any fraud or collusion, is valid and binding both in that State and in all other States.”

Reference may be had also to the following authorities, among many others, which directly or inferentially support the conclusions we have reached: Pennoyer v. Neff, 95 U. S. 714; Ditson v. Ditson, 4 R. I. 87; In re James’ Estate, 33 Pac. Rep. (Cal.) 1122; Gould v. Crow, 57 Mo. 200; Thompson v. State, 28 Ala. 1; Thurston v. Thurston, 59 N. W. Rep. (Minn.) 1017; Cox v. Cox, 19 Ohio St. 502; Thompson v. Thompson, 8 South. Rep. (Ala.) 419; Smith v. Smith, 10 id. (La.) 248; Roth v. Roth, 104 Ill. 35; Knowlton v. Knowlton, 155 id. 158; Van Orsdal v. Van Orsdal, 67 Iowa, 35; 1 Bishop on Marriage, Div. and Sep. secs. 698, 699.

It by no means follows from this view that other States may impose on us their own domestic policy contrary to that which we may have established for ourselves,—any further, at least, than our complex system of government, and that anomalous thing, the status of marriage, existing between a separated pair, (husband and wife,) each residing in a different jurisdiction, render unavoidable. It is seen, also, that there is a practical uniformity in the policy of a majority of the States on the question. The rule, all but universal, that a marriage valid where celebrated is valid everywhere, is not applied to render polygamous marriages valid in monogamous States. (1 Bishop on Marriage, Div. and Sep. secs. 305-309, 868.) It would, however, seem to follow that a high duty as to publicity, candor and fairness would be imposed on the husband or wife seeking divorcement from his or her non-resident spouse upon mere constructive service, commensurate with the importance of the questions involved, not only to the absent defendant but to the court and public as well, for it is familiar doctrine that the husband and wife are not alone interested in the suit for divorce brought by one against the other, but the public interests are also regarded as involved, and to such extent that in some jurisdictions the State is represented by counsel, but generally the court itself is alone relied on to protect the public interests in such cases. (1 Nelson on Divorce and Sep. secs. 7, 8.) And the court will in no case enter a decree of divorce upon the mere consent of the partiesj but will in all cases require sufficient evidence to establish the complainant’s right to the decree under the statute. In Way v. Way, 64 Ill. 406, this court, after construing our statute relating to divorce and passing upon the evidence in the case, said