Atherton v. Atherton, 181 U.S. 155 (1901)

MR. JUSTICE PECKHAM, dissenting:

I think this case was rightly decided by the Court of Appeals of New York, and I therefore dissent from the judgment and the opinion of the court herein.

I think if the husband had, at his domicil in Kentucky, been guilty of such misconduct and cruelty towards his wife as entitled her to a divorce, she had a legal right for that reason to leave him and to acquire a separate domicil, even in another state. If under such circumstances she did leave him, and did acquire a separate domicil in New York state, the Kentucky court did not obtain jurisdiction over her as an absent defendant, by publication of process or sending a copy thereof through the mail to her address in New York.

It has long been held that the wife upon such facts could acquire a separate domicil. In Cheever v. Wilson, 9 Wall. 108, 123-124, it was so decided, and the case of Ditson v. Ditson, 4 R.I. 87, was therein cited with approval upon that proposition. It was said in the Rhode Island case that,

although, as a general doctrine, the domicil of the husband is by law that of the wife, yet, when he commits an offense, or is guilty of such dereliction of duty in the relation as entitles her to have it [the marriage] either partially or totally dissolved, she not only may, but must, to avoid condonation, establish a separate domicil of her own. This she may establish -- nay, when deserted, or compelled to leave her husband, necessity frequently compels her to establish -- in a different judicial or state jurisdiction than that of her husband, according to the residence of her family or friends. Under such circumstances she gains, and is entitled to gain, for the purposes of jurisdiction, a domicil of her own.

This is also held in Hunt v. Hunt, 72 N.Y. 217, where many of the authorities are collected.

By the statute of New York in force at the time the parties were therein married, the court had jurisdiction to grant a limited divorce on the complaint of a married woman, where the marriage had been solemnized in the state, and the wife was an actual resident therein at the time of exhibiting her complaint. By virtue of this statute and of the wife’s residence in New York at the time of exhibiting her complaint (if such residence were legally acquired, as already stated), the court in that state had jurisdiction of an action for divorce against her husband, and jurisdiction over the husband was complete when he appeared in the suit. Having the right to acquire a residence in the state, it was open to her to prove in the divorce case which she instituted in New York the facts which justified her leaving her husband’s home in Kentucky and in acquiring a separate domicil in New York, and the decision of the Kentucky court that it had jurisdiction over her in her husband’s suit was not conclusive against her upon that question. The New York court entered upon the inquiry and found the fact that she was justified by her husband’s acts in leaving his home and in acquiring a new domicil for herself, and that the Kentucky court therefore obtained no jurisdiction over her. It also found the facts necessary to warrant it in granting to her a divorce under the laws of New York, and it granted one accordingly. This I think the New York court had jurisdiction to do, and it did not thereby refuse the constitutional full faith to the Kentucky judgment.

That a husband can drive his wife from his home by conduct which entitles her to a divorce, and thus force her to find another domicil, and then commence proceedings in a court of his own domicil for a divorce, which court obtains jurisdiction over her only by a service of process in the state of her new domicil, through the mail, and that, on such service he can obtain a judgment of divorce which shall be conclusive against her in her action in the court of her own domicil seems to me to be at war with sound principle and the adjudged cases. The doctrine of status, even as announced in the opinion of the Court, does not reach the case of a husband, by his misconduct, rendering it necessary for the wife to leave him. I therefore dissent.

I am authorized to state that THE CHIEF JUSTICE concurs in this dissent.