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Carol Wagner v. Sally Chislett et al.

May 28, 2024 - Brief

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

NO. 2023-0585

Carol WAGNER,

Petitioner-Appellant,

Sally CHISLETT et al.

Respondents-Appellees

Rule 7(1)(A) Mandatory Appeal from 9th

Circuit Court – Probate Division – Nashua

PETITIONER - APPELLANT’S REPLY BRIEF

John-Mark Turner (#15610)

Sheehan, Phinney, Bass & Green, PA

1000 Elm Street

Manchester, NH 03101

603.627.8143

jturner@sheehan.com

Table of Contents ……………………………………… 2

Table of Cases

and Other Authorities 3

Argument……………………………………………………………… 4

I. Respondents Ignore that the Legislative Intent Behind Was to Eliminate Estoppel-like Arguments in Favor of a Prohibited Divorce 4

II. Respondents Rely on a Presumption of Prejudice, Rather Than Evidence 9

III. Respondents Ignore that the Reasonableness of Carol’s Actions Presents a Factual Question for Purposes of the Discovery Rule and Fraudulent Concealment… 10

Certifications 12

Signature Block 12

Addendum 13

TABLE OF CASES

AND OTHER AUTHORITIES Cases Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 (1993) 10, 11

Bussey v. Bussey, 95 N.H. 349, 350 (1949) 9

Coe v. Coe, 316 Mass. 423, 428 (1944) 5

Conrad v. Hazen, 140 N.H. 249, 252-53 (1995) 10, 11

Dietrich v. Dietrich, 261 P.2d 269, 273 (1953) 4

Hodges v. Johnson, 170 N.H. 470, 480 (2017)………………………… 5

Perry v. Richardson, 336 F. Supp. 451, 456-57 (E.D. Pa. 1972) 8

Poor v. Poor, 381 Mass. 392, 397 (1980) 5

Scherer v. Scherer, 405 N.E.2d 40, 44 (Ind. Ct. App. 1980)…………… 8

Slessinger v. Secretary of Health & Human Services, 835 F.2d 937, 941 (1st Cir. 1987) 7

State v. Weeks, 134 N.H. 237 240 (1991)……………………………… 9

State Employees Ass’n v. Belknap County, 122 N.H. 614, 622 (1982)… 9

Valhouli v. Coulouras, 101 N.H. 320, 322-23 (1958) 10

Weber v. Weber, 200 Neb. 659, 666-67 (1978)………………………… 8

Statutes RSA 459 passim

Mass. G.L. c. 208, § 39 5

Rev. State Neb. § 30-2353 8

Other Authorities Comment: Estoppel Under the Uniform Divorce Recognition Act in California, 42 Calif. L. Rev. 503, 503 (1955) 5

ARGUMENT

I. RESPONDENTS IGNORE THAT THE LEGISLATIVE INTENT BEHIND RSA 459:1 WAS TO ELIMINATE ESTOPPEL-LIKE ARGUMENTS IN FAVOR OF A PROHIBITED DIVORCE.

In her brief, Carol pointed out that RSA 459:1’s express purposes was to eliminate equitable defenses when a migratory divorce is challenged. The choice was motivated by policy goals. The drafters of the UDRA, whose intent governs, intended that the statute be strict to discourage people from seeking “migratory” divorces and that the “specific refusal to recognize extra-state divorces should extend to the full limits permissible under the Constitution... as any narrower policy would be difficult to formulate and would introduce factors so complex as to hamper achievement of the goal of uniformity.” See Transcript of Nat’l Conf. of Commissioners on Uniform State Laws, Proceedings in Committee of the Whole, Sept. 15-20, 1947, at page 8 (testimony of Professor Merrill). 1 To discourage married couples from seeking such divorces, the UDRA was intended to deliver a clear, unambiguous statement of policy that such divorces would never be considered valid. See id. at 37 (discussing the “value of that rule that folks can look at and say ‘Well, it isn’t safe to run off and get a divorce.’”). Respondents do not present any argument about the intent behind the UDRA. Instead, they rely on a semantic argument utilized by some courts. They argue that barring Carol’s declaratory judgment and spousal share claims “does not result in an outcome contrary to the terms of the UDRA, because the underlying issued addressed by the UDRA – the validity of the Foreign Decree – has not been reached.” The fraudulent Dominican divorce has not been given “force or effect, ” but instead Carol is simply prohibited from challenging it. Resp. Br. at 20-21. This is the same reasoning used by some courts to apply estoppel in the face of a non-recognition statute like the UDRA. As cited by Respondents, the California Supreme Court in Dietrich v. Dietrich, 261 P.2d 269, 273 (Cal. 1953), used similar reasoning to permit estoppel-like defenses against a challenge to ex parte divorces in California. In Poor v. Poor, 409 N.E. 2d 758, 761 (Mass. 1980), the Massachusetts Supreme Judicial Court, similarly allowed an estoppel defense when a husband tried to challenge his current marriage on the basis of his wife’s divorce invalidity under Massachusetts’ non-recognition statute. 2 The Court must reject Respondents’ argument because it is just an end run around the Legislature’s intent when it adopted RSA 459:1. See Hodges v. Johnson, 170 N.H. 470, 480 (2017) (legislative intent for uniform act determined by intent of uniform act drafters). The UDRA’s drafters specifically referred to judicial decisions applying estoppel and other equitable doctrines and intended the UDRA to “close the door to evading the invalidity of the tourist divorce which the decisions first cited above leave ajar.” See Comment: Estoppel Under the Uniform Divorce Recognition Act in California, 42 Calif. L. Rev. 503, 503 (1955).

The goals and policy choices underlying the statute are evident in the minutes from the committee meeting of the Uniform Law Commissioners adopting the UDRA. The Commissioners considered but then decided against adopting a provision that would bar attacks on older migratory divorces, providing: Section 3. The validity of the final decree of divorce granted by the courts of another jurisdiction shall not be subject to attack directly, indirectly or collaterally in any civil or criminal proceedings in the courts of this state after the expiration of [] years from the date of such final decree. See ULC Meeting Trans. at 50-51. The proponents of the provision argued “that there should be time when the property rights and the status of afterborn children should be put to rest.” Id. at 42. They believed that allowing challenges to older divorces could be inequitable and lead to unsettled marital estates for decades. See id. at 25 (“Somebody fifteen years later on the question of property or anything else can come in and raise the domiciliary question and the invalidity of the divorce proceeding or the distribution of property that may have been made under that, and leave the thing in an interminable mess.”); id. at 107 (“The purpose of the Section as drawn is to put an end to litigation and settle questions of legitimacy and property rights, and unless persons who have interests which are adversely affected by the divorce come into court within a certain number of years, it is my theory that they ought to be estopped later to question the validity of the divorce.”). Others voiced concerns that allowing challenges to older divorces may lead state legislatures to not adopt the uniform act. See id. at 25 (“I grant you that this puts more teeth in it, but I wonder if some members of the legislature, when this thing is presented, will not raise that as a serious obstacle to going forward when we simply forever leave the thing up to somebody who wants to come in and raise the question fifteen years later.”).

The UDRA drafters ultimately rejected Section 3. Speaking for the drafting committee, Professor Merrill stated “we do not believe it is desirable if a policy of discouraging folks from going off to foreign states or countries for their divorces is to be enacted by the states, that you should then turn around and weaken that policy to them by saying, ‘Well you have a divorce. It isn’t any good now but if you will wait seven years, if you can lull everybody concerned to sleep for seven years without challenging it, you may have a better chance of getting it by.’” Id. at 24. The drafters also believed there was an urgency to the problem of “tourist divorces, ” but that adequately drafting some sort of repose provision in the statute was complex and could take a year or longer. Id. at 128. “In the meantime the problem of protecting the states against their runaway domiciliaries will be there, and the pressure will be building up for Federal intervention which may... take the form of a statute which will completely override state’s rights.” Id.

Respondents’ argument for estoppel misses that the UDRA is based upon the theory that more than the interests of private parties are at stake in such divorce cases - “the state has an interest in divorces, and the basis of the whole Act is that it has been a fraud on the jurisdiction of a state.” See id. at 69. To counteract the perceived dangers of foreign migratory divorces (either ex parte or with both spouses’ participation), the UDRA pursued “an absolute, complete, unqualified and sweeping rule of policy” applicable “under all circumstances and conditions” in order to send a message and to discourage anyone from seeking such divorces. Id. at 39. In the drafters’ minds, court decisions applying estoppel or prohibiting challenges to old divorces, even if justified on equitable principles, conflicted with the statute’s purpose by communicating to the public that such divorces could be given legal effect in some circumstances. That policy choice has not been popular. The concerns voiced in the committee about the strictness of the new policy against migratory divorces and the possible legislative reluctance to adopt the UDRA, appear to be prophetic: only nine states ultimately adopted and kept the UDRA. Furthermore, as Respondents point out, courts in at least one of the adopting states, California, have ignored the statute’s purpose and continued to apply common law equitable principles to challenges to migratory divorces. Respondents points to these cases and argues that this Court should follow them because RSA 459:3 instructs that the Act should be interpreted “to effectuate its general purpose to make uniform the laws of those states which enact it.” See Resp. Br. at 21-22. Respondents’ argument must be rejected because there is no uniform rule of law favoring estoppel among adopting states favoring. While the California courts seem to have adopted a per se rule prohibiting a UDRA challenge by a divorced spouse who remarries, Respondents cite no other UDRA states that have ruled similarly. The lead case cited by Respondents, Slessinger v. Secretary of Health & Human Services, 835 F.2d 937, 941 (1st Cir. 1987), interpreted Rhode Island’s version of the UDRA. As the First Circuit noted, Rhode Island did not adopt the UDRA as proposed, but changed the law to prohibit only “ex parte divorce in another state.” Rhode Island’s existing case law permitted estoppel against a participant in a bilateral divorce from later challenging it, and the change to the UDRA was “intended to preserve that case law, with which section 1 of the Uniform Divorce Recognition Act might be thought inconsistent.” Id. (emphasis added). By contrast, The New Hampshire legislature did not make any similar change to preserve estoppel defenses when it enacted RSA 459:1.

Besides California and Rhode Island, Respondents cites decisions in Massachusetts, Pennsylvania (applying New Hampshire law), and Nebraska. See Resp. Br. at 23-24. These decisions do not show some sort of uniform law in UDRA states supporting estoppel. Massachusetts has not adopted the UDRA, but its own statute. 3 The Pennsylvania decision, Perry v. Richardson, 336 F. Supp. 451 (E.D. Pa. 1972), applied New Hampshire law, but the challenged thirty-year old divorce was a New Hampshire divorce issued allegedly without notice to the wife. RSA 459:1 was not even at issue or argued. The Nebraska decision, Weber v. Weber, 200 Neb. 659, 667 (1978), refused to apply estoppel against a wife who sought an Ohio divorce after her husband obtained a Dominican divorce. The Court did not address the issue of whether the UDRA permitted equitable defenses, and it is not clear whether the husband ever made the argument. Moreover, Nebraska has specifically amended its version of the UDREA to make clear that a divorced spouse who remarries cannot bring a surviving spouse claim based on the Udara. See Rev. Stat. Nebr. § 30-2353(b)(2) (providing that “surviving spouse” does not include “an individual who, following an invalid decree... of divorce... obtained by the decedent, participates in a marriage ceremony with a third individual”). Like Rhode Island, Nebraska evidently believed the Udrea otherwise permitted such claims. Thus, against the plain language and evident statutory intent to bar the use of equitable doctrines in defense of a migratory divorce, only the California cases support Plaintiffs’ position, and none of them appear to have addressed the Ura’s intent. There is no uniform practice among the adopting states to ignore the statute’s intent to proscribe equitable defenses, but instead two of the states evidently thought it necessary to amend the Udara as written to permit such defenses. The Court is addressing what appears to be an issue of first impression. It should carry out the statute’s original legislative intent and reverse the Probate Court’s application of laches to Carol’s claims.

II. RESPONDENTS RELY ON A PRESUMPTION OF PREJUDICE, RATHER THAN EVIDENCE.

There is no dispute Carol’s surviving spouse counts are timely under any relevant statute of limitations. The sole basis for dismissal is laches. “When an action is brought within the limitations period, laches will present a bar only if the delay in bringing suit was unreasonable and prejudicial to the defendant.” State Employees Ass’n v. Belknap County, 122 N.H. 614, 622 (1982). Respondents thus have the burden of proving prejudice. See id.; State v. Weeks, 134 N.H. 237 240 (1991). Reversal is appropriate because Respondents have never provided any evidence that they have been prejudiced. Their brief makes this clear. They say “remarriage and the birth of children is a relevant change of status, ” citing Bussey, Resp. Br. at 16-17. But Respondents never point to testimony or evidence from the Respondents explaining what the effects have been on them. They do not claim they have changed their positions in reliance on an expectation of receiving the Brookline property, and do not address Sally’s testimony that prior to John’s death neither she nor the children even knew John’s will left the Brookline property to the children. See Sally Depo at 88:19-23 [Appx. at 281].

Rather than any prejudice or harm they actually suffered, Respondents simply argue that the “individual and state interests in the preservation of marital status and legitimacy is well-established.” Resp. Br. at 18. But Respondents do not contest that they are adult children who, unlike minor children in the 1940s at the time of Bussey, face no economic consequences or even societal stigma from a court decision declaring their father was married to another woman at the time of his death. “Since each case has to be considered in the totality of facts and circumstances surrounding it, the defense of laches has been regarded as ‘mainly a question of fact’ for the Trial Judge.” Valhouli v. Coulouras, 101 N.H. 320, 322-23 (1958). The Probate Court did not assess the facts and circumstances unique to this case. It committed reversible error when it assumed prejudice based on norms of social disapproval espoused in the older cases that has no relevance to the parties before it.

III. RESPONDENTS IGNORE THAT THE REASONABLENESS OF CAROL’S ACTIONS PRESENTS A FACTUAL QUESTION FOR PURPOSES OF THE DISCOVERY RULE AND FRAUDULENT CONCEALMENT.

Respondents contend that the Probate Court correctly dismissed Counts 1 and 2 of Carol’s Amended Petition and that the discovery rule and fraudulent concealment doctrines do not apply. But Respondents do not address cases like Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 (1993). In that case, leaks appeared in a condominium within one year of construction, but the homeowner did not sue for five years. The Court concluded that it was inappropriate to dismiss a claim on limitations ground because notwithstanding the obviousness of the leaks, the plaintiff argued and submitted an affidavit that it had not discovered the builder’s negligence caused the leaks. See id. Because “whether the plaintiff did in fact exercise reasonable diligence is a question of fact, ” id., the trial court erred when it decided without an evidentiary hearing that the plaintiff had not acted reasonably diligently.

Similarly, in Conrad v. Hazen, 140 N.H. 249, 252-53 (1995), the Court reversed summary judgment against a plaintiff who filed suit sixteen years after being sexually assaulted. The Court declined to address whether the serious nature of Plaintiff’s injuries at the time of the assault should have apprised Plaintiff that her rights had been violated, noting that such a determination was a “question of fact.”

This case is the same as Black Bear Lodge and Conrad v. Hazen. Carol testified in her verified petition that she was misled into believing that the Brookline property had been transferred pursuant to the “Seperation Agreement” and the Dominican decree. See Second Am. Complaint ¶¶40, 42 [Appx. at 37]. She further testified she believed the decree was valid because of its official-looking nature, and because John remarried in New Hampshire in 1977. See id. The reasonableness of her belief is supported by her interactions with Attorney Kerrigan in 1987, who she consulted to enforce a provision of the Seperation Agreement. See id. ¶¶43-49. He never told her the divorce and agreement may be unenforceable or invalid. The reasonable inference that must be taken in Carol’s favor as the non-movant was that if a lawyer she consulted did not apprise her of the invalidity of her divorce, she did not act unreasonably for not realizing it. Like the homeowner who knew her house leaked but only belatedly discovered the builder caused roof leaks, Carol did not discover that the loss of the Brookline property was due to John’s fraud until her children’s lawyer told her in 2019 that the divorce might be invalid. See Carol Aff. ¶¶9-11 [Appx. at 348].

It is a question of fact whether Carol’s beliefs and actions were reasonable. The Probate Court, however, decided the issue on the papers without listening to Carol’s testimony and assessing her credibility. It thereby erred and dismissal should be reversed.

CERTIFICATIONS

I certify that this brief was written in 13 point font using Microsoft Word and contains less than 3, 000 words as calculated by Word’s word count feature, exclusive of the sections excluded per Rule 16(11).

I also certify that this brief was delivered to all parties of record pursuant to this Court’s electronic filing and service system.

May 28, 2024 /s/ John-Mark Turner John-Mark Turner

Respectfully submitted,

CAROL WAGNER

By her attorneys,

Sheehan Phinney Bass & Green PA

May 28, 2024 By: /s/ John-Mark Turner

John-Mark Turner Esq. (#15610)

1000 Elm Street, 17th Floor

Manchester, NH 03105-3701

(603) 627-8143

jturner@sheehan.com

Footnotes

The Uniform Law Commission provided Petitioner-Appellant with the transcript of the committee meeting adopting the UDRA in 1947. It is included in the Addendum to this Reply and cited to as “ULC Meeting Trans.” Back
Massachusetts has not passed the UDRA. Its nonrecognition statute, M.G.L. c. 208, § 39, appears to date back to 1836. The caselaw under the statute is inconsistent. In Coe v. Coe, 316 Mass. 423, 428 (1944), the SJC reviewed and applied its several past decisions holding that “where a divorce in a foreign jurisdiction has been obtained in violation of this statute, one who participates in it is not precluded from questioning it in our courts.” Though Coe was reversed on Full Faith and Credit grounds, the Coe court’s interpretation of the nonrecognition statute was not reversed. Coe and earlier cases around the time of the UDRA’s passage in New Hampshire are inconsistent with Poor. Back
For the same reason, Respondents reliance on Scherer v. Scherer, 405 N.E.2d 40, 42 (Ind. App. 1980), at pages 22-23 of their brief, is misplaced. Indiana is also not an UDRA state. Back

ADDENDUM

1. Transcript of Nat’l Conf. of Commissioners on Uniform State Laws,

Proceedings in Committee of the Whole, Sept. 15-20, 1947…………… 17

PROCEEDINGS

COMMITTEE OF THE WHOLE AN ACT CONCERNING THE RECOGNITION OF A DIVORCE OCTAINED IN ANOTHER JURISDICTION AND TO MAKE UNIFORM THE LAW WITH REFERENCE THERETO

NATIONAL CONFERENCE OF COMMISSIONERS

t. ON UNIFORM STATE LAWS

September 15-20, 1947

Hotel Statmer

Cleveland, Ohio

The MASTER REPORTING COMPANY, Inc.

law Stenography · Conventions · General Reporting

CHICAGO CLEVELAND NEW YORK WASHINGTON 540 NORTH MICHIGAN AVENUE STAN0ARD BUILDING. 51 MADISON AVENUE NATIONAL PRESS BUILDING

Superior 3255 Main 0894 LExington 2-5588 National 8558

Proceedings in Committee of the Whole

Wednesday Afternoon, September 17, 1947

An Act Concerning the Recognition of a Divorce

Obtained in Another Jurisdiction

And to Make Uniform the Law with Reference Thereto

Mr. Martin J. Dlnkelsplel, of Callfornla, actlng

as Chairman of the Committee of the Whole; Mr. Maurice H.

Merrill, of Oklahoma, Chairman of the Committee on the proposed

Act.

CHAIRMAN DINKELSPIEL: Gentlemen, Mr. Merrill,

Chalrman of the Committee on the Uniform Dlvorce Recognition

Act, will proceed with a reading and discussion of the Act.

MR. MERRILL: Mr. Chairman, in view of the fact

that not all of us have received the mimeographed copy of

the report of the Committee, I think it may be well if I pre-

sent the report itself in some detail. Perhaps you will like

to follow the presentation of the report by the copies which

are being dis tributed among you now.

The practice of residents of one state journeying

to another to take advantage of laxer or more speedy divorce

procedures than those afforded by the state of their domicil

has given rise tu much concern and to much comment among

lawyers and laymen. Variant opinions in different regions

as to the grounds upon and the conditions under which divorces

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__ should be granted have rendered ineffectual previous attempts

at securing uniform divorce legislation. If the federal

principle has any merit, this fact is not to be regretted,

since the incidents of the marital status are pecullarly apt

for the autonomy and the opportunity for experiment which are

proclaimed as the merits of that principle.

But many persons, finding themselves ineligible

for divorce under the laws of the states wherein they live, or

unwilling to abide by the waiting prescribed in the procedure

of those states, hle themselves elsewhere and, by pretending

to take up residence there, obtain their freedom from the

local courts. Then they return to flaunt their newfound free-

dom before their stay-at-home neighbors. In some states as

well as in some foreign nations, the statutory law and the

judicial practice are adapted particularly to this evasion

of the laws of neighbor states.

Public opinion increasingly recognizes the ills which

spring from this situation. Those able to embark on divorce-

seeking tours obtain a discriminatory advantage over their

fellow citizens. Respect for local law is destroyed. The ef-

fectiveness of state policy is broken down. The autonomy

in local affairs which is the object of federalism is hub-

verted.

Since the "quickle" divorces are obtained in large

measure by persons whose conduct is regarded as newsworthy, the

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resultant publicity helps to establish a pattern of disrespect

for law and social institutions. The impression of well-to-

do and influential elements of the community that they need

not be hampered by inconvenient restrictions of their local

laws renders difficult the promotion of measures of reform.

Actually, however, the validity of subsequent marriages, the

status of children, title to property, rights of inheritance

and many other incidents of life are rendered uncertain by

the cloud of invalidity hanging over the tourist divorce.

Popular dissatisfaction with this state of affairs

is bearing fruit in agitation for transfer of control over

divorce to the national government, since the states have

been unable to unite upon proposals for uniform divorce legis-

lation. It seems obvious, however, that national jurisdiction

over the termination of marriage must entail assumption of

control over the entire institution. The prospect of cen-

tralization this presented le out of harmony with American

practice and involves such grave problems that it ought to

be avoided if relief can be secured in any other way. Unless

some way is found for states to make their laws effective,

we may be sure that the demand for natlonal actlon will

result in federal intervention.

The work of this committee began as the result of

the direction given by the Conference at its annual meeting

in 1944 that a study be made of the feasibility of drafting

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- a Uniform Divorce Jurisdiction Act for submission to the

Conference. This act was prompted by the concern felt then

as to the effect of the decision of the Supreme Court of the

United States in Williams v. North Carolina 317 U. S. 287,

87 L. Ed. 279, 63 S. Ct. 207, 143 A.L.R. 1273 (1942) in seeming

to require full recognition of divorces granted on the basis

of a relatively short stay by the plaintiff in the state of

the forum. A great many people thought that was the effect

of the first Williams case.

The interest of the Conference in the general sub-

j ect, however, le not new. As early as 1900 it had approved

a proposed unlform law on Divorce Procedure and Dlvorce

from the Bonds of Matrimony, and later proposals in super-

session of this proposal continued to be recommended by the

Conference until 1928. In that year the indoreement of

the Conference Was Withdrawn from the then pending measure

in view of the very few states which had adopted any of the

proposals. The Conference's interest continued, nevertheless,

and discussion of the subject finally produced the direction

of 1944.

This study was committed to a special committee

set up under the Uniform Social Welfare Acts Section. After

consultation among the members of the committee, together

with Mr. Sidney Clifford, the Chairman of the Section, it

was determined that it was impossible to achieve the desired

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- objective through the medium of a Uniform Divorce Jurisdiction

Act. Clearly, the states cannot prescribe for each other

standards higher than those which the Supreme Court of the

United States holds to be sufficient for the purpose of en-

tltling a decree of divorce to full faith and credit. You

cannot get beyond that.

Equally clear, the states which have proved willing

to allow the jurisdiction of their divorce courts to be in-

voked easily are not likely to join in the adoption of a uni-

form act basing jurisdiction on more rigorous requirements.

However, it seemed possible to do something with a uniform

act concerning the conditions under which recognition would

be granted to foreign divorces.

While the clear holding of the Williams case was

that a state in which one of the parties to a marriage has

achieved a bona fide domicil acquires jurisdiction to affect

the status of that party by a decree of divorce or of annul-

ment of marriage, it seemed equally clear that a state may

still decline to recognize a decree of divorce obtained by

one of 1ts domlciled cltlzens in a court of another jurisdic-

tion.

Work was commenced upon that theory, and substantial

agreement had been reached upon the general outlines of a

proposed act when the theory received confirmation through

the decision of the Supreme Court of the United States in the

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Second Williams Case, 352 U. S. 226, 89 L.Ed. 1577, 65 S. Ct.

1092 (1945). In addition, this latter decision reinforced

the need for a definite enunciation by the states of the con-

ditions under which they will recognize foreign divorce.

I might elaborate upon that. It is clear that

the court in the Second Williams case left the states free

to refuse to recognize a decree granted in another jurisdic-

tion to persons who were domiciled or to a person domiciled in

the second state, not domiciled in the state of the forum,

but slmply on general grounds.

The state was not required to refuse recognition,

and lf generally the courts on a matter of Common Law were

going to refuse such recognition you might have all sorts of

variations. Our annotations to Section 1 suggest some of

the variations that have have crept in to that or in the

judicial handling of that problem.

It might be Well, therefore, for a state to enunci-

ate definitely that it was not going to recognize the ddcrees

of divorce secured by its citizens from the courts of some

other jurisdiction.

The draft act presented to the Conference in 1946

embraced:

1. A policy that divorces obtained in a foreign

forum should be denied recognition if both parties to the

marriage were domiclled in the state. I say that that seems

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- to go the full length of discretion that is left to the

state under the decisions in the two Williams cases.

2. A rule of administration whereby the obtention

of a divorce during a relatively short stay outside the state

: of original domicil, followed by prompt resumption of residence

therein, would be prima facle evidence that the originalU

domicil was retained at all times. This seemed to the com-

mittee to exploit to the fullest practicable extent the powers

left to the states under the decisions of the Supreme Court

of the United States.

The consideration of this draft and proposed amend-

ments in Committee of the Whole at the 1946 Conference dis-

closed a wide difference of opinion as to what policy should

be adopted respecting extra-state divorces and uncertainty

as to what would best effectuate whatever policy might be

adopted. The course of debate was most helpful in clarifying

issues and the committee has reMxamined the problem in the

light of that debate.

As a result of the re*xamination the committee le

of the opinlon:

1. That the underlying policy should be to dis-

courage rather than encourage migration in pursuit of a di-

vorce.

2. That a specific statutory refusal to recognize

extra-state divorces obtained by domiciliarles will reduce

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- tourist divorce-seeking, particularly as the perils of that

practice become generally recognized.

3. That specific refusal to recognize extra-state

divorces should extend to the full limits permissible under

the Constltution of the United States, as any narrower policy

would be difficult to formulate and would introduce factors

so complex as to hamper achievement of the goal of uniformity.

4. That the device of the prima. facie case in

favor of the continuance of domicil arising out of procuring

a divorce during a short absence from the state of origin

affords the best method of implementing the general policy

of non-recognition. The committee is divided upon the policy

of setting a time limit within which the rule of the prima

facle case shall apply, and therefore the provision to that

effect is bracketed, with a view to facilitating action

thereon by the Conference in Committee of the Whole.

The committee reports with regret that Commissioner

William M. Crook was prevented by illness from participating

in its consideration of this act.

When we reach the sectlon-by-section and 1lne-by-

line discussion of the Act I shall call to your attention

action taken by the committee and the Section on Social Wel-

fare Legislation in respect to a recommendation concerning

the bracketed material and what should be done with it.

That much by way of introduction. I think that

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-- lt reasonably summarises the background in which this repcr t

is made and in the light of which our proposal has been

drafted.

If there is no desire to discuss the matter gener-

ally I think we will proceed.

CHAIRMAN DINKELSPIEL: I think we might proceed to

a reading of the Act, Professor Merr111.

MR. MERRILL: In that connection, let me call to

your attention the fact that the four final Sections which

are merely uniform Sectlons in aIL Uniform Acts, failed to get

renumbered when we struck out a tentative Section 3 of the

Act. It is my fault; I forwarded to Mr. Kuhns the copy in

that form. If you will correct the numbering of those

Sections by numbering them 3, 4, 5 and 6 rather than as they

now appear, 4, 5, 6 and 7, that will take care of that small

error.

The title, of course, An Act Concerning the Recog-

nition of a Divorce Obtained in Another Jurisdiction and to

Make Uniform the Law with Reference Thereto, is suggested

for purposes of this conference only. We find that states have

in great numbers prescribed requirements for titles, and

I think that each state ought to be warned that persons who see

to the introduction of the bill in the Legislature should

check as to the adequacy of the title for purposes of their

particular jurisdiction.

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; Section 1. A divorce obtained in another

jurisdi ction shall be of no force or effect ln

this state, if both parties to the marriage were

domiclled in this state at the time the proceed-

ing for the divorce was commenced.

CHAIRMAN DINKELSPIEL: Is there any discussion?

MR. LLEWELLYN: Mr. Chairman, there are three types

of action involving, let me say, the splitting apart of a

married couple to avoid a legal technicality. There le the

so-called separation, but the so-called separation is also

spoken of in the law of many states as a divorce from bed

and board. There is the divorce from the bond of matrimony,

and there le an increasing use throughout the country at the

present tlme of the action for annulment of the marriage.

Now, it le not clear to me from the language of

this Section whether it is the committee'e desire to include

the action for separation in the bill, and there is no men-

tion of any policy in regard to the action for annulment

which, in very many cases today, is having the same effect

as the action for divorce from the bonds of matrimony.

I am seeking merely to clarify the intention of the

I 3: committee at this point.

MR. MERRILL: In the draft that was brought to

the Conference last year, Mr. Llewellyn, we used both divorce

and annulment--decree of divorce or of annulment of marriage.

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The matter received pretty thorough exploratlon in

the debate ln the Committee of the Whole. It developed that

a considerable body of opinion existed which desired not to

have the annulment decrees brought within the purview of the

Act. It was urged that after all, the evll that we Were

aiming at was not presented very often in the annulment

cases. In most instances, where you had ground for annulment,

your action was taken pretty quickly after the marriage.

It would probably be taken either in the jurisdiction where

the parties lived or the jurisdiction in which the marriage

had occurred, if it was an elopement, and that we did not

need to be concerned in this Act on that proposition.

The vote was taken on the policy of whether annul-

ment decrees should be included within the statute. That

vote resulted in a direction to the committee to eliminate

annulment. Therefore that is eliminated in this draft.

With respect to the separation or the divorce

a mensa, the committee I think has not specifically considered

that matter. It has occurred to the Chairman, I think per-

haps has occurred to all of us and has been more or less im-

plicitly assumed, that the divorce a.mensa le to that extent

a divorce, it le included in common legal phraseology

within the term "divorce, " it is within the policy of the

statute--the clear policy--it is within the purview of the

evil which we are seeking to deal with, that no state should

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be required to accept another state's intervention in the

marital status and fixing the marital status of people who.

are both domiciled within its borders.

It le my impression, as a matter of interpretation,

Mr.Llewellyn, that the word "divorce" is broad enough to in-

clude both types of divorce, and it would be so interpreted

by the courts.

MR. LLEWELLYN: Then I should like to raise a

~; question of policy on each of what I will treat as the col-

lateral matters involved.

There le a serious question in my mind whether the

decree of separation is within the policy that the cpmmittee

has in mind. At least, most discussions in public in regard

to the divorce situation deal with the possibility of re-

marriage, which is plainly barred in the case of the decree

merely for separation, and at least I think that ought to be

seriously thought about as a separate issue..

As the chairman states the policy it is a policy

of non-intervention by one state in the internal domestic

affairs of another, particularly with reference to the regu-

lation of matrimony. It le my personal belief that a policy

stated that way has got no support whatsoever in the United

States. Nobody le interested. Doubtless if you mention-it,

people could be got to agree that maybe they thought so, but

nobody gives. a hoot.

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-- What we are concerned about in these United States is

the question of divorce and remarrying. That is a matter of

very definite concern to a wide body of the public. And if

the language of this Section as drawn has the effect which

which I agree that it probably has, I think that is unwisely

moving into a field which, first, has given little trouble, and

second, i s probably better left alone.

I thlnk therefore that the language should be limlted

to the divorce from the bonds of matrimony.

MR. STANLEY: You mean by defining in another place?

MR. LLEWELLYN: I mean by saying "divorce from the

bond of matrimony."

MR. MERRILL: That would take care of it, if that

ls the sense of the Conference.

MR. LLEWELLYN: As to the second point, I disagree

completely personally with the policy of this Act, and the

Conference will go ahead with the policy, of the Act, 'I believe.

I shall waste no tlme on that.

I do wish, however, since I believe that the Act is

golng to be approved by the Conference, to polnt out that

the discussion last year on the matter of annulment 18 unsound

in its fact basis. We have developed in New York, for example,

an annulment procedure which reaches into five, six and even

seven years of marriage. It has become so well developed that

it reminds you in many of its aspects of the divorce courts

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in a large city, the so-called divorce mill, with the standard

list of questions you are all familiar with--every six minutes

one case--and the little book of questions handed to the

counsel for the plaintiff so that he will omit none of the

important questions which are necessary in the jurisdiction,

and to establish the basis of the decree in the uncontested

cases.

It le my opinion--and I think it is quite clearly

writeen for anyone to see--that if an Act like this takes hold

it will promptly, as a matter of practice, find a substitu-

tion of an annulment actlon for a divorce action so far as

that remedy may prove available to your same mlgratory folk.

And at least, I think, the Conference ought to meditate upon

whether, lf they *wish to have an Act like this, they do not

wish to have the results which the Act purports and seeks to

get.

I think that an action for annulment of marrlage,

if I may be permitted to say so, is vastly more of an inter-

ference with the law of the initial state, because an action

for annulment is procured and unless safeguarded by peculiar

statutory provisions such as we have in New York, illegitimat-

izes the children of the marriage if there are any. That is

a dpcree of annulment.

MR. McLAREN: Mr. Chairman, I am inquiring about

the necessity for Section 1 as written. It seems to me that

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-- the problem which we are generally considering here originates

with the fact that the party procuring the divorce may have

gone out into some other jurisdiction and there obtained a

paper decree.

The only thing that affects the validity of any

divorce decree so far as the subject of residence is concerned,

is the residence of the party obtaining the divorce. The

residence of the defendant le wholly irrelevant to that prob-

lem except in cases where the defendant comes in and asserts

a cross-complaint for a divorce.

My thought would be that this Section does nct

answer any problem because no problem is presented by the kind

of case envisaged by the Section. My thought would be that

it be. limited to cases where the party obtaining a divorce

decree was at the time of the beginning of the proceedings

domiciled in this state.

MR. MERRILL: Mr. McLaren, there are two reasons

which led the committee to adopt the phraseology in question.

One of them perhaps is not directly in the line of your sug-

gestion. The reason for specifying that both parties should

be domiciled in the enacting state in order to bring a statute

into effect is that under the combined impact of the first

and second Williams cases the rule of Haddock v. Haddock

having been overruled, if the plaintiff has taken such steps

as will effectaally remove his domicll from his original

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habltat to the state from whose courts he obtains a divorce, j

then no longer is his state of origin free to refuse recogn,

tion to his divorce, although the other party to the marriage

may still be 11vlng within its bounds.

The other reason which has led us to put emphasis

perhaps on the domicil of the defendant as well as the domicll

of the plaintiff is that the Supreme Court's own pronouncements

seem to lay emphasis upon domicil as the foundation for exert-

ing control over the marital status of persons, and to emphasize

by the statute as we do that we are concerned with the marit al

statub of our own domicillaries, not with the marital statue

of people who have taken themselves elsewhere is to brlng

our statute within the reach of the constitutional doctrine

as it seems now to be developing and to avoid the questions

which might possibly be raised concerning its validity if we

are trying to merely protect people who have changed their

domlcll to other states.

MR. SCHNADER: Mr. Chairman, may I ask a question?

Isn't Section 1 universal law?

MR. MERRILL: No, sir, I fear that it is not. ·It is

not by a few judicial decisions which I have included in the

notes, and it is not by statute in some states. It would

require in those states -- and I am not simply referring to the

"quickle" divorces--the enactment of something on this crder

that would bring about the full application of the power which

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the states have left to them by the decision of the Supreme

Court of the United States.

In some states you now have statutes which seem to

recognize divorces obtained practically anywhere; you have

other non-re cognition statutes Which have a limited effect.

CHAIRMAN DINKELSPIEL:, Is there any further discus-

sion?

MR. LLEWELLYN: To test the sense of the house, Mr.

Chairman, I would like to move the insertion after the ward

"divorce" in line 1 of the words "from the bonds of matrimony, "

and as a separate question later I give notice that I shall

ask for the insertion of "and a decree of annulment."

CHAIRMAN DINKELSPIEL: Mr. Llewellyn, do you make

that as one motion?

MR. LLEWELLYN: No, I want them two motlons. I think

they should be voted on separately.

MR. STANLEY: Second.

CHAIRMAN DINKELSPIEL: The motion mide by Professor0

Llewellyn is that after the word "divorce" in line 1 of

Section 1 the words be inserted "from the bonds of matrimony."

Is there any further discussion on the motion? If not, all

those in favor of the motion will signify by saying "aye";

all those opposed "no." The ayes have'it.

MR. MERRILL: The committee (I did not have the op-

portunity to make the statement), expressed itself as being

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willing to accept Mr. Llewellyn' s suggestion.

MR. LLEWELLYN: Then, Mr. Chairman, may I mov e that

after the inserted words the further words "or an annulment

of marriage" be inserted.

MR. MERRILL: Just a minute, Mr. Llewellyn, where

are you going to insert that?

MR. LLEWELLYN: It would read, "A divorce from the

bonds of matrimony or an annulment of marriage."

MR. MERRILL: Should that not perhaps read "or a

decree of annulment" 7

MR. LLEWELLYN: It would su lt me better, yes.

CHAIRMAN DINKELSPIEL: Is there a second to the

motion?

[The motion was seconded.]

MR. MERRILL: The committee desires, in view of the

action taken last year, in view of the discussion before the

Conference and the reasons whlch led the Conference to vote

to exclude the decree of annulment from the Act last year--t

the committee, in vlew of these things, I say, desires nat to

concur in Mr. Llewellyn's motion in that regard.

MR. STANLEY: Mr. Chairman, recognizing everything

that Mr. Llewellyn has to say, Would it not be better to

take this Act and direct it to a specific evil? If as

Mr. Llewellyn says this Act takes hold, has teeth in lt, and

produces some result s whereby in order to aroid the scope

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and effect of this Act your annulment situation develops,

legislatures having already put this character of an Act in

force and effect, it would be a comparatively easy proposition

to go back and meet that developing evil in the same fashion

or by an amendment of this Act.

It may be that moving into this field and having

two situations that are distinct and do have different legal

complications, it would be unwise to burden this and might

defeat the Act in its adoption, whereas the Act as it le in

its present form might go through very quickly.

The other le somethlng that seems to me can be

taken hold of, and we should not burden this Act with it at

this time.

MR. PROSSER: Mr. Chairman, I should like to point

out one situation in which I think there may be good reason

for obtaining an annulment in the state where the parties

are not domiclled, that ls, where they have removed from the

state of marriage to a second state and then, when the annul-

ment le sought, they go back to the state of marriage to

seek it.

There may be several reasons for that. One is the

correction of the records in the original state, particularly

with reference to property which may exist there. The second

is the possibility of religious reasons in the local jurisdic-

tion.

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- I think we might consider whether we want to include

that type of thing in our prohibition against foreign annul-

ments.

MR. KUHNS: Mr. Chairman, le it not also true that

where you have a situation for annulment you are much more

apt to have really separate domicils of the parties, and

, there it le much more difficult to have one domicil of both

parties as you have in matrlmonial domicil? I think that point

was brought out last year.

MR. MERRILL: That might be so, I think, Mr. Kuhne.

I have no statistics.

MR. KUHNS: They are separate, often.

MR. ROGERS: Mr. Chairman, you referred a moment ago

in answer to Mr. Schnader's question when he asked if it

would not be universal law, to the fact that if both parties

to the marriage were domiciled in the state at the time that

the proceeding for the divorce was commenced, the divorce

would be held bad ln that state. Would not. that same question

apply with reference to the annulment if both parties are

domiciled in the state and to into another state to seek an

annulment? Would the state where the marriage was made take

into consideration that annulment? Have you made investiga-

tion on that?

MR. MERRILL: Yes. The answer to that ls that no

fcrmal investigation has been made since the Conference last

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-- year voted to eliminate that as a matter of pollcy. I would

say frankly that I doubt that the search which was made with.

respect to the recognition to be accorded to extra-state di-

Yorces would turn up also cases relating to extra-state annul-

ment, if any such there had been.

I do not say that conclusively, but I can simply

say that I have not encountered such cases. They donnot seem

to be covered by statutory provisions which have been inves-

tlgated. That is all I can say.

MR. PRYOR: Mr. Chairman, it is easy to imagine a

situation where the parties will be married, for instance, in

Missouri when they were domiciled in Iowa. They can go back

to Missouri and bring the action to annul the marriage there,

I thlnk.

MR. MERRILL: There might be such a thing as a

view that there was a jurisdiction over the fact of the mar-

riage ceremony in Missouri, even though the status le in Iowa.

MR. BEERS: Mr. Chairman, in Connecticut it le

not at all uncommon for people from New York to come up to

get married across the state line. There have been compara-

tlvely few annulment cases, but I do know of a few, and it

has never been questioned that if those people find there

le something about the marriage which justifies annulment

that they can, although living in New York throughout, come

back to Connectlcut to brlng an annulment sult.

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-- I do not see any reason for barring it, either.

We went through all this last year.

MR. BROSSARD: Mr. Chairman, I should like to have

somebody state under what circumstances a husband has the

option to bring an action for divorce or for annulment. My

understanding of an annulment is that there never was a mar-

rlage. If there never was a marriage I do not understand

how you can get a divorce. If there is a marriage, I do not

understand how you can get an annulment.

MR. MERRILL: I can give one answer from our

own divorce statute. I suppose the strongest case for there

never havlng been a marrlage would be where one of the spouses

had another partner already living at the time of the second

marriage.

MR. BROSSARD: If first cousins marry in Wisconsin

there is no* marriage.

MR. MERRILL: I mean, this other where you already

have another spouse.

MR. BROSSARD: If it is void in the state where

it is contracted it is void everywhere. If it is valid in the

state where it is contracted it is valid everywhere. So that

if you control the divorce matter I cannot see how there can

be any danger af somebody trying to use the dodge of annulment

to take the place of it. It seems to me he would be stopped

in his tracks.

[The question was called for.]

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- CHAIRMAN DINKELSPIEL: It has been moved and

seconded that there be inserted after the Words now inserted,

whereby the Section reads "a divorce from the bonds of matri-

mony, " the words "or a decree af annulment. " I presume that

is the word, Professor Llewellyn.

MR. MERRILL: "A decree of annulment of marriage."

CHAIRMAN DINKELSPIEL: That Ila decree of annulment

of marriage" be inserted. All those in favor of the motion

signify by saying "aye"; those opposed "no. " The noes have it.

Is there further discussion on Section 17 If

not we will proceed to Section 2.

MR. MERRILL) May we take it that Section 1 as amend-

ed is approved?

* Section 2 comes after several pages of notes:

Section 2. If a person obtaining a divorce

in another jurisdiction was domiciled in this

state within twelve months prior to the commence-

ment of the proceeding therefor, and resumed resi-

dence in this state within eighteen months after

the date of departure therefrom--

at the point, gentlemen, we have inserted an additional clause

proposed to us by Mr. Schnader and received the approval

of the committee because it does seem to close a slight crack

1n the door. Following "within eighteen months after the

date of his departure, " add "and until his return maintained

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in this state a place of residence, " then continue:

[in any legal proceeding begun within ()

years---

Where the blank parenthesls ls, the section and the committee

voted unanimously that if the bracketed provision were to

be included we would recommend the insertion of the wor d

"seven.

lin any legal proceeding begun within (seven)

years from the obtaining of the divorce] these

facts shall be prima facla evidence that the per-

son was domiciled in this state when the divorce

proceeding was commenced.

It is the recommendation of the committee and of the

Sectlon on Public Welfare Acts taken unan imously at the

meeting at which the final draft of the Act was considered,

that the bracketed portion be omitted.

The reasons which led to that determination are that

we do not believe it le desirable if a.pollcy of discouraging

folks from going off to foreign states or countries for their

divorces ts to be enacted by the states, that you should then

turn around and weaken that policy by saying to them, "Well,

you have a divorce. It isn't any good now, but if you will

wait seven years, if you can lull everybody concerned to sleep

for seven years without challenging it, you may have a

better chance of getting ji by."

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- That seems to us to be a weakening of the general

Policy, to be in opposition to the general policy. But be-

cause there was considerable sentiment manifested last year

for some such limitation, we have put it in, and put it in

in brackets in order that the matter might be thrashed out by

the Conference. But it le the recommendation of the committee

and the Section for the reason stated that the bracketed por-

tion be omitted.

MR. STANLEY: Mr. Chairman, Mr. Merrill, granting

that lt mlght weaken the Act, if you are going to say what

you have in the first Section, then haven~t you of necessity

at some point got to put an end to uncertainty? There may be

property rights, there may be other factors involved that

require that after a given period of time, if the question

of the domiciliary provisions have caused no difficulty and

the people have gone on thelr way, etc., you have got to have

this thing terminated and end the uncertainty. Somebody

fifteen years later on the question of property or anything

else can come in and raise the domiciliary question and

the invalldity of the divorce proceeding or the distribution

of property that may have been made under that, and leave

the thing in an interminable mess.

I grant you that this puts more teeth in lt, but

I wonder lf some members of the legislature, when this thing

le presented, will not raise that as a serious obstacle to

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- going forward when we simply forever leave the thing up to

somebody who Wants to come in and raise the question fifteen

years later, we will say.

MR. MERRILL: You have a problem there. Yo u have

this problem, and I do not know of any way of evaluating here

the extent of the opposition that we will get by putting in a

limitation on the one hand, or leaving it out on the other.

You will have some folks whose reaction will be a good deal

like my own, "Heck, this len't going to do so much good."

MR. STANLEY: Well, Mr. Merrill, children may be

involved in this. Isn't it a question more than a question

of a group of lawyers drafting this Act 7 Haven't Re got to

consider the ultimate effect of property distribution, etc.,

of giving some finallty and some point to when this thing ends?

MR. MERRILL: I am not in the least crying down the

cogency of your suggestion, except to say that I am not sure

how that arithmetic would work out as to the folks that would

be alienated by one provision or the other provision. I think

that is something that is too difficult to guess.

The other point that I would suggest to you le this.

The factors whlch y ou have presented are factors which will

also arise, Mr. Stanley, in connection with the question of

attacking, as you sometimes may attack, domestic decrees which

have been faulty for some reason or other. It may well be

that that ought to be dealt wlth by some general statute of

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- limitation within the state respecting the time within which

decrees, domestic or forelgn, may be attacked.

MR. STANLEY: As long as you are actually doing

something here whlch puts teeth Into the statute, then good

common sense indicates that you have got to have your statute

of limitations at some point, or carry it along so that it

can be presented, or you leave a lot of property rights in

an inextricable muddle. It does not make good sense.

MR. MERRILL: I think that just about sets the issue,

Mr. Stanley. I put forward our committee's viewpoint as

well as I can, certainly. Mr. Stanley has well put the argu-

ment on the other side. I see nothing to do oh that but le ave

lt to the Conference.

MR. BARRETT: On that point, Mr. Chairman, I feel

very strongly with Mr. Stanley. I happen to be from a jurls-

diction in which the Wife has inchoate right of dowry in real

estate in which the husband is seized during covenant. In the

absence of some limitation we can never approve the title

to the real estate where the divorce was obtained outside

of the state. It just would not be safe to do it. There must

be some limitation.

MR. MOREHEAD: Mr. Chairman, it seems to me that

if Mr. Stanley is correct on his question of policy, brackets

ought to be added to Section 1 or made an entlrely new

Section. We are dealing in 2 with just what you have evidenced.

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-- MR. FERTIG: That is exactly the point I have

made. It is not a statute of limitations, it is a period of

time after which the presumption ceases. You can still make

the attack after that.

MR. ROGERS: We have the same situation in Alabama.

We have the inchoate right of dowry. Unless we have some

limitation, some suggestion or some clause of repose, it le

not so much a statute of limitations as it is a statute of

repose. You have to reach a place of rest. If a man goes

away and it le not heard from for seven years, it is Common

Law, if I remember correctly, that he legally presumed to be

dead. But if these people who have obtained this divorce,

or if other people who are interested collaterally make

no attack within seven years, then they should not be heard

from thereafter.

MR. SCHNADER: Mr. Chairman, I have a series of

questions which I should like to ask the Chairman of the com-

mlttee. Some of them I have asked him privately, and I think

his answers are very pertinent to the consideration of this

Act as a whole.

Personally, I have been giving a lot of thought to

this subject since the last Conference, and I confess that

my ideas are still very, very muddled as to whether, if this

Act were passed, we will be recommendlng anything h the states

which will do any good.

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- On this question of limitations, let me say paren-

thetically that I agree with the committee that these

bracketed words should be stricken from this Section, hit I feel

we should put in a separate Section saying in effect that no

attack--direct, indirect or collaterial--should be made on

a forelgn divorce in this state unless within a nertain number

of years after the 1brelgn decree was granted.

I sympathize with Mr. Stanley's position that

questions of legitimacy and questions of property rights

should be finally settled, and I think seven years is too long.

I think lf anybody is going to attack one of these divorces

they ought to make up their mind to do it in a very much

shorter period than seven years, and leave everything unset-

tled for as long a tlme as that.

Now, getting to my questions, my first question is

whether the committee intends these various situations that

are recited here, including the additional one which is put

in which has been put in at my suggestion, as in the alterna-

tlve: if you prove either that the person was domiciled in

this state within twelve months before the proceeding was

begun, or returned within eighteen months, or had a permanent

place of residence.

MR. MERRILL: The answer, Mr. Schnader, is no to

the first question and yes to the second. You asked lf they

were in the alternative. In other words, the prima facie

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- case arises first if a person domlclled in the enacting state

within twelve months prior to the commencement of his foreign

action for divorce returns, resumes residence.

MR. SCHNADER: Now, wait a minute. If it le proven

he was domiciled within this state within twelve months

before the proceeding in another state was begun, le that

enough to raise the presumption?

MR. MERRILL: Not by itself, no. You notlce the

words "and resumed residence in this state"--not "ort' but

"and resumed residence in this state within eighteen months

after the date of his departure therefrom."

- MR. SCHNADER: It occurred to me that the introduc-

tion of the clause which I suggested renders a little bit

inartistic the expression "these facts shall be prima facle

evidence."

MR. MERRILL: It did not 80 impress me.

MR. TEISER: "Such facts"?

MR. SCHNADER: I thought the committee meart either

of those things.

MR. MERRILL: No.

MR. SCHNADER: Either domiclled here within twelve

months before the proceedings were begun, or returning within

eighteen months after departure, or having a permanent place

of residence here all the while.

MR. MERRILL: No, that was not our intention.

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-- There far e I should further add that the introduction of the

"cr" seems to me to separate the last suggestion which we

took from you_from the others. My personal impression le

not one that it is inartistic.

May I ask the Chairman of the Committee on Style

what his impression is?

MR. BROSSARD: I.haven't any answer for that. I did

not get an impression of it.

MR. SCHNADER: My next question le the real question.

We start with the proposition that the Supreme Court in the

second Williams case had said that the foreign decree is

prima facle valid, and that any person seeking to upset has

the burden of proof that the domicil in the foreign state

was not bona fide.

Suppose Pennsylvania passed this Act, and suppose

a bigamy prosecution were begun against a person who had

gotten a decree of divorce in Florida. The prosecution proves

the facts necessary to raise the prima facle bad domicil

in Florida. Then the defense offers in evidence a certified

copy of the Florida decree. That is prima facie valid. Where

are you?

MR. MERRILL: You have a case of conflicting evi-

dence.

MR. SCHNADER: I am not finished. That is the one

situation, and the other is very similar. Suppose a question

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comes up in the Probate Court depending on the validity of the

Florida decree. In that case the plaintiff offers in evidence

the Florida decree. That is prima facie valid. The defense

offers in evidence these facts. That raises a prima facle

that the Florida decree is not valid. Where are you there?

I am asking those questions because I want everybody

to hear how the committee answers them. The question that

arises in my mind le whether by recommending such an Act to

the states you are recommending anything, or whether we are

leaving things just as they are today. And of course, as I

told you; unless that additional phrase was stuck in I would

think Pennsylvania was much better off then they would be

with theAct, because'anybody who has enough money to stay

out of the state for more than eighteen months, keep his reel-

dence in Pennsylvania all the while--just lock it up, come

back, resume his residence, and go on from there. But I

am concerned, and consciously concerned, with whether we are

doing ourselves any credit by offering this as a statute and

labeling it as something which le solving anything.

MR. MERRILL f: Mr. Schnader's questions are bottomed,

I think, on certain language used by the Supreme Court in

the opinion in the second Williams case which I do not believe

were used, intended to be used, by the Court; in the technical

sense of relatlng to where the burden of proof rests, either

in the sense of the preponderance of the evidence or the

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burden of going forward. Rather, I think the Court had

in mind simply this situation: You have a decree by a court

of competent jurisdiction of one of the states, presumably

rendered as a result of a solemn judicial investigation, which

recites certain jurisdictional facts including the domicil

of the plaintiff.

That decree is certainly entitled to a great deal

of respect. Before you are going to overturn that decree

there must appear in the record in which it le attacked, let

us put it, sufficiently weighty circumstances which would

indicate that something was wrong in that adjudication, thav

it clearly did not rest upon a true foundation that (as it

is phrases somewhere else in those opinions, that series of

prlnciples) fraud has been practlced on the COUrI of the

forum.

Now, consider the circumstances whi ch will be

proved in an action in which this rule of evidence proposed

in Sectlon 2 ls brought 1nto play. You prove here is a

man who was living in Pennsylvania with all the adjuncts of

living in Pennsylvania attached to it. He had a business, he

was employed there, he had a home, a house, he owned or rented

it for a certain number of years. He had a wife and maybe

children, a cat and dog, an automobile registered there. He

had registered to vote, we hope. He had done a lot of

other things. Maybe he was a church member. It happens,

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I think, that Mr. Williams was a church member in Williams v.

North Carollna. There are a lot of things that will hang

to him by virtue of his being a domiciled resident of

Pennsylvania.

All of a sudden he picks up from Pennsylvania and

goes to Nevada. We will take Nevada because that was in-

volved in the Williams case. In the Williams case he went to

a tourist home and stayed six weeeks, commenced his suit,

got his decree for divorce, and probably hied himself back to

North Carolina.

MR. STANLEY: Did the dog and cat stay in Pennsyl-

vania? [Laughter]

MR. MIRRILL: The record is silent on that polnt,

Mr. Stanley.

We wl].1 substitute Pennsylvania for North Carolina

and forget Mr. Williams. He comes back to Pennsylvania, and

comes back within eighteen months from the time he left, at

the most.

I suggest that it requires a great stretch of

imagination and the throwing over him of a mantle of charity

as big as a circus tent, even to suggest that under those

circumstances he had ever abandoned his Pennsylvania domicil.

He has got an awful lot to explain simply because you produce

those facts.

If in addition--or take the other alternative, if

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he stays away longer than eighteen months but you show he

has the mansion house on the outskirts of Philadelphia,

fully staffed with servants and appointments of every kind

which he has left there in operating condition all the time

he has been absent, again you are going to have to throw

a circus tent over him to get an ybody to think that he really

intended to quit Pennsylvania in favor of Nevada when he

went out there.

I think when you have done that, Mr. Schnader, you

have met what the Supreme Court had in mind when they were

talking about this heavy burden of proof that rested on the

folks who were golng to attack the decree.

MR. SCHNADER: That, I am afraid, does not answer

my question.

MR. ME; RRILL: It answers it, Mr. Schnader, with

regard to the Supreme Court. Now if you will let me go on

a blt farther ---

. MR. SCHNADER: May I ask you a question on that0

0 part of your answer? Does that part of your answer depend on

the assumption that when the U. S. Supreme Court said that

the foreign decree was prima facta valid and that the burden

of proof was on the person seeking to overturn it, it did

not mean what it said?

MR. MERRILL: No, it does not rest at all upon

that assumption, Mr. Schnader, but it does rest on the

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assumption that it does not mean what you are suggesting it

meant. It did not say what you are suggesting that it said

1n that sense. Words may be used, as we all know, in a great

many meanings. I do not think, as I said in the opening of my

reply to you, that the Supreme Court at all was addressing

itself to technical questions of burden of proof in any

sense.

MR. SCHNADER: No, but on the state of action.

CHAIRMAN DINKELSPIEL: Mr. Schnader, may the Chalr

make this observation, that I think you and Mr. Merrill

may be speaking of dif ferent things? In your example of the

Williams case, that was a criminal prosecution, as I recall

lt, and your presumption here is on civil proceedings which

would not apply in a criminal prosecution.

MR. MERRILL: It is intended to apply in any pro-

ceedings.

CHAIRMAN DINKILSPILL: I stand corrected.

MR. SCHNADER: Now, still stating as far as you

have gone (because I do not want to waste too much of the

Conference's time) I would just like to say that on your

stat e of facts that you have given I would not advise any

Pennsylvania client that any divorce granted in Florida or

Nevada today was worth a darn. In other words, I would think

without this statute any divorce could be kicked out where

those facts were proved in evidence.

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MR: MERRILL: I think that ls probably true of

Pennsylvan la, Mr. Schnader, under your Pennsylvania decisions;

but I point out to you that there probably are Pennsylvania

lawyers who will not give that advice. There are Pennsylvanla

people who, with or without the advice of lawyers, will go

off to Nevada or Florida under somewhat similar states of

facts.

MR. SCHNADER: They will do it no matter what you

pass.

MR. MERRILL: I am not 80 sure. You get a law

passed and you get the publicity that is attached to that,

and you find folks attributing all sorts of things to it.

We have all had experience with that. Not only that, but

as I have suggested earlier in response to questions, we do

have certain judicial decisions in some states that would

be affected by this provision. You have certain statutes that

would be affected.

I think what we call the publicity value of this

sort of Act, the fact that the two Sections taken together

will extend to a great mass of situations, and will tend to

overrule certain limiting decisions in some states, will give

you something which, taken in connection with the publicity

provision, will be effective and will be well worth passing

even in Pennsylvania.

Now lf I may just flnish up with Mr. Schnader's

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- questions with respect to the criminal prosecution and/or the

the civil proceeding of which you spoke, basing my answer on

what I have already sald, my impression is that in those two

situations, each, you have a question for the jury which will

in most cases, I suspect, be answered by the jury to the

effect that there was no change of domicil, in the absence

of some pretty good explanation on the part of the transie nt

divorce seeker.

I believe you have got that as a result of this

statute. I don't think you have anything for a directed

verdlct.

MR. SCHNADER: Do you think without this stat.ute

you won't have that, if the same facts were-·proved?

MR. MERRILL: In some states you would not. I

think that is probably true, or at least you won'·t have as

stro ng a case for the jury as you have. And in addition you

would not have the value of that rule that folks can look

at and say, "Well, it isn't safe to run off and get a

divorce."

Rlght now, all they have to go by ls the Common Law

of their jurisdiction, and folks do not look at the Common

Law half as much as the statute in black and white. That is

the advantage of a statute.

MR. BAILEY: I should like to ask. Mr. Merrill,

in view of the investigations he has made with reference7

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to the law on this question, if it would not be advisable

for North Carollna to ask here that lt be omitted from this

statute.

My reason for it is just this: by coming in here

with this statute and delineating three or four baslc things

as upsetting the divorce, I am impressed with the idea that

you are limiting the right in North Carolina to protect itself

against divorces obtained in other states upon fraudulent

facts.

It seems to me that the Williams case, certainly

the second Williams case, affirmed what everybody thought was

law, that a divorce obtained in another state upon fraudu-

lent facts had no status in the state of the actual domicll

of the parties involved.

If that be true, the committee in this Act is limit-

ing the situation to three, if you include Mr. Schnader's

second one, in which a state can show fraud, and it seems to

me that to that extent, certainly, North Carolina is in a

worse state than it was before it started all this mess.

MR. MERRILL: You will pardon me, Mr. Bailey, I

think that statement proceeds from a slight misapprehension

of the scope of the Act.

Recurring to Sectlon 1, you have there a speciflc

enactment that a dlvorce from the bonds of matrimony obtained

in another jurisdiction shall have no force and effect in this

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state if both parties to the marriage were domiciled in

this state at the time the proceedings for divorce was com-

mended. That is an absolute, complete, unquallfied and

sweeping rule of policy applicable to all decrees of divorce

obtained when the parties were domiciled in North Carolina,

under all circumstances and conditions, and reaching to every

type of fraud.

Now we come to Section 2. We do not have there

a substantive rule at all. A substantive rule is enacted in

Section 1. It extends to everything, and you can prove

a violation of the substantive rule in Sec-cion 1 by any and

all evidence that would be competent to reach that issue at

any time, -place or circumstances, before the enactment of the

statute and after the enactment.

All Section 2 does is to give you a rule of evi-

dence that creates a prima facie case out of certain facts

and helps you with your enforcement of the provision, the

substantive provisionsof Section 1, but does not in any way

prevent you from enforcing them through a case made out of

proof of other facts that may be in existence.

MR. BAILEY: In the Williams case, as I recall the

facce, a man and a woman, both of whom were married to

other spouse, decided to go out to Nevada and get a divorce.

Now, neither W Ullams and his wife, or the lady he married

after the divorce and her husband went out. Williams went out

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-- to Nevada, and the lady that he married after his divorce went

out and· obtained a divorce at the eame time. Her husband

did not go.

By your first Section you make it possible.for them -

to come back to North Carolina, do you not, and say, "My

wife d idn' t go with me, " or "My husband didn ' t go with me, "

therefore I can come back to North Carolina and have my dl-

vorce recognized?

I will admit that my argument may be a little bit

obscure [laughter], but I want to get to the further fact

that if you give any weight to the second Williams case

where the jury certainly found that during the entire time

both of them were out there they were not residents of Nevada

but residents of North Carolina---

MR. MERRILL: Domiciled citizens of North Carolina,

and in addition, of course, the respective husband and wife

were also domiciled citizens of North Carolina. That ls the

exact foundation of the decision in the Williams case.

MR. BAILEY: I am saying that I do not know how you

are doing anything by this second one except limiting the

instances in whlch North Carolina can come up and say, "Here

are facts and circumstances." Maybe outside of thls, as you

say, there was no mention of the dog and cat, but suppose

they do mention the dog and cat and mention many other things

that go to show the fraud practiced on the court in Nevada

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-- and the fraud thac was practi ced with reference to the status

in North Carolina. By Section 2 do you not---

MR. MERRILL: In Section 2 would you exclude the

admission of such evidence?

MR. BAILEY: Well, I am not one of the judges and

not a good lawyer on divorces, but it seems to me that when

you have written into the policy of the law that certain

chings are things that say a divorce is not good, you have gone

a long way to say that the others are not going to be very

helpful.

MR. MERRILL: Section 2 does not read that way, Mr.

Bailey. Section 2 merely says that these facts shall be prima

facle evidence, but it does not say that other facts shall

have no bearing upon it, or that these facts shall be the

ground upon which the divorce shall be denied recognition.

MR. McLAREN: Mr. Chairman, I would like to speak

again for a moment regarding the language in the bracket. I

understood the chairman Go say the committee had recommended

that the bracketed language be eliminated. There has been

some discussion about that, apparently upon the theory that

the language was a statute of limitations on the right to at-

tack the divorce, the validity of the divorce. That of course

is a misapprension of the language.

The bracketed language if you leave it in is only,

you might say, a statute of limitations as to the length of

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- time this presumption would obtain. Personally, I would favor

striking out any limitation on such presumption. It would

be an extreme case of judicial gullibility to believe that

a man had been a bona fide resident in the forum where he

obtained his divorce under the condltions enumerated in Section

2. It occurs to me ehat the strength of the presumption

certainly does not diminish in the least.

I should like to inquire at this point, also,

whether the committee had given consideration to the question

of whether there ought to be a statute of limitations on the

right to attack the validity of a divorce which we will

assume is utterly void. An appealing argument can be made, and-

was referred to by Mr. Stanley a moment ago, that there

should be a time when the property rights and the status of

the afterborn children should be put at rest. But thau of

course le not the question in this~ particular bracketed

language.

I am curious to know what the committeels opinion

was on the other question.

MR. MERRILL: The committeels opinion with respect

to limitations, whether on the operation of the prima facie

case rule of evidence or with regard to the time within which

the decree might be attacked, ls the same. We felt that

there is an opposltion between those two policies. We

recognize the extremely appealing character of Mr. Stanley's

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- observations and we thlnk that le a question for the Confer-

ence to decide. We will be glad to abide by the opinion of

the Conference.

MR. McLARE; N: I think it ls not only an appealing,

idea but one which if the committee saw fit to put it in the

statute, might go a long way in helping secure its adoption.

We have numerous statutes under whlch I, for example, can by

adverse possession, if you please, for a certain number of

years gain a perfectly good title although I have no paper

title whatever. So that admitting the divorce of the kind

we are discussing is utterly void, it would seem that there

should be some time after which its validity ought not to

be open to question.

MR. MERRILL: This should be said, Mr. McLaren,

that the general statutes of limitation will have bearing,

of course, on actions of this kind in the same way that they

have bearing on any actions relating to the attack of decrees.

MR. STANLLY: I think there is a good deal of

merit to what Mr. McLaren says, but won't that be taken care

of if you will follow Mr. Schnader's suggestion and put it

1.n a separate section? Then the point Ihat Mr. McLaren

makes, removed here from the applicability and force and ef-

feet of this thing, and you in another section get in your

statute whatever it is you want, and I think that irons <

out the whole situation.

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- MR. TULLIS: Mr. Chairman, may I suggest that

the limitative effect which the gentleman from North Carolina

fears might be avoided by such language as this: "These

provisions shall not be so construed as to exclude other

evidence tending to establish the invalldity of the foreign

divorce."

I have said that simply on the spur of the moment.

Would that not void that limitative effect?

CHAIRMAN DINKELSPIEE: Is there any further dis-

cusslon?

MR. GARD: Mr. Chairman, I should like to inquire

what the members of the Conference think about the constitu-

tionality of Section 2. That is the Secclon we are talking

about. What I have in mind I can probably express by putting

the question this way: Are we not denying full faith and

credit here to a foreign judgment in advance by subjecting

it to a statutory presumption which may or may not have any

real bearing on the true facts which go to the intent of the

parties on the question of where their domicile is?

That question bothers me quite a little bit. I

throw it into the pot here for a lit Gle further consideratlon.

MR. MERRILL: I do not know that I would qulte

agree to some of the phrasing of that question with respect

to subjecting the foreign judgment to evidence which has lit-

tle or no bearing upon the intent of the parties. I quite

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- agree with you that if that were the effect, no doubt the

decisions of the Supreme Cour-c with respect Go the validity of

statutory presumption would render it doubtful--not only

doubtful but clearly unconstitutional.

But we have a 11-ne of decisions which you will find

cited in the notes to Footnote 2, which in a variety of situa-

tions and with respect to both civil and criminal statutes,

have held that it was entirely consistent with due processE9i.. to establish a presumption. or a prima facie rule of evidence

(I use that term because in some states there is a difference

between presumption and prima facie rule of evidence) that

either of those is entirely consistent with due process if

there is a rational connection between the facts which give

rise to the presumption or the prima facle rule, and the

ultimate fact to be proved by the facts giving rlse to the

prima facie presumption.

For reasons whlch I developed at length ln my re-

sponse to Mr. Schnader, it seems to me that that rational con-

nection exists, and the Supreme Court's ruling with regard to

fulifaith and credit extends only to those cases in which

the plaintiff was domiciled in the state from which he ob-

talned his divorce and does not apply to those cases in which

he ran away, got his divorce but never changed his domicil,

and it is that fact to which this presumption or this rule

of evidence, whichever you care to call it, applies.

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-- PRESIDENT STANLEY: Mr. Merrill, it is now five

0'clock. There ls a report of Mr. Bell whlch he destes to

make. The matter for elght 0'clock, the cons Zeration of the

Commercial Code, is out and the evening session le clear for

a continuation of this discussion, which is proving very

interesting.

The question I would like to have you all decide le

whether we should suspend operations on this particular Act

at this time, hear from Mr. Bell and recess, then finish up

the consld eration of this Act at the evenlng session. I

should like to have the conference decide it, because I think

it is a matter which nay drag this out, and I think it

should be thoroughly discussed and completed. We will have

the time tonight.

CHAIRMAN DINKELSPIEL: I would 11ke to hear a

motlon from the floor, as to the pleasure of the Conference.

MR. BOGERT: Mr. Chairman, I move that we proceed as

the President suggests, namely, hear Mr. Bell now and then

finish the work this evening at eight o'clock.

IThe motion was seconded.]

CHAIRMAN DINKELSPIEL: It has been moved and

seconded that we suspend work now to hear Mr. Bell' s report and

reconvene at eight o'clock this evening. All those in favor

signify by saying 'laye"; those opposed "no." The ayes have it.

Mr. Merrill, would you please report?

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MR. MERRILL: Mr. Chairman, the Committee of the

Whole begs leave to report progress on the Uniform Divorce

Recognition Act and asks leave to sit again at elght o'·clock.

. I

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Proceedings in Committee of the Whole

Wednesday Evening, September 17, 1947

An Act Concerning the Recognition of a Divorce

Obtained in Another Jurisdiction

And to Make Uniform the Law with Reference Thereto

Mr. Joe C. Barrett, of Arkansas, acting as Chairman

of the Committee of the Whole; Mr. Maurice H. Merrill, of

Oklahoma, Chairman of the Committee on the proposed Act.

MR. MERRILL: One matter that perhaps we can dls-

pose of by unanimous consent, I think, is simply a matter of

form. I take it that the action of the Conference this

afternoon in adopting Mr. Llewellyn's amendment to character-

ize the divorce wlth which we are dealing ln Seculon 1 as a

divorce from the bonds of matrimony, would carry with it in-

serting in Section 2 in the opening refer ence, "If a person

obtaining a divorce from the bonds of matrlmony in another

jurisdiction."

It is merely a matter of form, but I think it will

be clear that the prima facle caae rule shall apply only to

the divorce of the type that le covered by the first Section

of the Act. If there is no dissent from that, the committee

will assume that is the sense of the Committee of the Whole.

CHAIRMAN BARRETT: We hear no dissent.

MR. MLRRILL: There seems to be none.

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As a result of the discussion of this afternoon

we have, of course, the whole matter of Section 2 still open

to the Conference. Particularly we have the question of

whether we should strike out the bracketed matdrial in Section

2, whether we should remove the brackets leaving the material

in Without some in sertion date, whether if we should declde

that the limitation on the use of the prima facie case rule

is undesirable we should then consider, as was suggested by

several members this afternoon, the desirability of including

some *eneral limitation on the bringing of the facts upon

foreign-obtained divorces.

MR. SCHNADER: Mr. Chairman, to raise that question

I move that the material in brackets be stricken out.

MR. STANLEY: I second it.

MR. SCHNADER: And I serve notice that lf that motion

prevalls I shall offer a Section 3 which is a real limitation

Section.

CHAIRMAN BARRETT: The motion is that the material

in the brackets in Section 2 be stricken. Is there any discus-

slon of that motion?

MR. MERRILL: Mr. Chairman, may I say first, in order

to make the committee' s position clear (at least this le

the position that we make, I think) we are still opposed to

the general idea of the limitation of any sort. We feel,

among other things, that we have a fairly simple Act and we

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- are not sure, with all respect to my good friend Gene Stanley,

but what putting in a limitation section may not complicate

the issues that will arise in a state legislature rather than

simplify them.

For that reason we ourselves doubt the policy of ln-

serting any limitation, and therefore we would prefer to see

Mr. Schnader's motion now prevail and his later motion fail.

I simply desire to say that without foreclosing Mr.

Schnader from later, in case his second motlon fails, renew-

ing the motion to insert in Section 2 the matter-=

MR. SCHRADER: I would like it out in any event.

MR. STANLEY: I want to say that as far as I am

concerned I shall vote for Mr. Schnader's motion and seconded

the motion on the assumption, as Mn' Schnader suggested, that

we are going to have before it is presented at least some

sort of a section that relates to the repose of this matter.

CHAIRMAN BARRE'PE: The Chair understands that,

and the motion is submitted with that understanding.

You have heard the motion of Mr. Schnader that the

material in the brackets of Section 2 be stricken. Those in

favor o f the motion let it be known by saying "aye"; those

opposed by the same sign. The motion is carried.

I recognize Mr. Schnader.

MR. SCHNADER: I will'just continue while we are

on the same idea. I move that Section 3 be added to this

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-- Act reading as follows:

Section 3. The validity of the final decree

of divorce granted by the courts of another juris-

diction shall not be subject to attack directly,

indirectly or collaterally in any civil or criminal

proceedings in the courts of thls state after the

expiration of [threel years from the date of such

final decree.

I had three years, but Professor Merrill would prefer

to have the number of years bracketed.

MR. STANLEY: I think for the purpose of this motion

it would be helpful to have it bracketed, because we get into

a discussion on the actual insertion.

MR. SCHNADER: I am quite willing to do that.

MR. STANLEY: I second the motion.

MR. EHEY: Do I understand that although we are

considering it now, we still have not finished with Section 2?

CHAIRMAN BARRETT: That is correct.

Is there discussion of that motion?

MR. KUHNS: May I ask one question? What do you

think, Mr. Schnader, of letting the limitation run from the

time the decree becomes final?

MR. SCHNADER: I have, after the expiration of

so many years from the date of such final decree.

MR. KUHNS: In some states that would be measured

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-- from the entry of the decree.

MR. SCHNADER: I had in mind saying, "from the date

When the adverse party obtains knowle dge of the decree, " but

I gave that up because I think anything like this ought to

be definite, and the date of the decree le about the only

thing which can be definite in the state administering the

Act. We won't know in Pennsylvania all the refinements

about when the decree becomes final, and so on, but the date

is something that we can know.

MR., STANLEY: It seems to me in answer to Mr. Kuhns

on the matter, we should avoid putting in al ything that

assumes that anything about this foreign decree is valid,

which you do assume to some extent if you speak about "six

months after the decree" or anything else that relates to the

finality of the particular jurisdiction in which the decree

is rendered. I prefer it as Bill Schnader has it, and take

the date when the decree is entered.

MR. SCHNADER: Some states, I thlnk, do not let

the decree become flnal for two years.

MR. McLAREN: Mr. Chairman, I suggest also that the

almost uniform practice in fixing a statute of limitations

on any kind of a judgment is to start running of the statute

with the date of the judgment. I think it la more definite

and more uniform and more desirable, particularly when we

are discussing a uniform statute.

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MR. MERRILL: May I make Ihls suggestion, Mr. Chalr-

man. I think that what Mr. Kuhns has reference Go is the

institution in some states of what le known as an interlocu-

tory decree in dlvorce actions which.will become final either

after the expiration of a certain length of time or upon being

made final on motion of one of the parties.

·My impression is that your language there would

relate only to the tlme that the decree became final. How

does that ready Does it say "final decree" ?

MR. SCHNADER: I will read it: "The validity of

a final decree of divorce granted by the courts of another

jurisdiction shall noe be subject to attack, " etc., "after

the expiration of blank years from the date of such final

decree."

MR. MERRILL: You speak of "flnal decree."

MR. SCHNADER: Of course it has to be a final decree

but the date of entry --- \

MR. MERRILL: But an interlocutory decree of

divorce in California, as I understand it (Mr. Wood, am I

correct?) ls not at all a final decree.

MR. WOOD: That is correct.

MR. MERRILL: Would no t become a f inal decree

until the expiration of one year in your state.

MR. WOOD: After a year you can go and get your

final.

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MR. MERRILL: But it would not become final until

that decree would be entered at the end of the yar.

MR. SCHNADER: That is the important thing, because

until that year has expired no valid marriage can be entered

into.

MR. MERRILL: May I ask this furcher question, Mr.

j Wood? If a California court were confronted with the

language in Mr. Schnaderts suggested Section cr amendment, what

would they say was the date from which that period started

running?

MR. WOOD: The expression "final decree" would have

no application in the interlocutory at all. The flnal decree

might be entered one year after the interlocutory had been,

or it might be some time later. But when it is entered it

le the final decree.

MR. BROSSARD: It 18 the same in Wisconsin.

MR. STANLEY: I want to ask this with respect

to this, and not arguing out that question, as to whether

there is any advantage in attempting to dovetail this with

Section 2. Your proposition is on an entirely different time

basis. Your approach there, where the quesclon of domicil

le involved, is twelve months prior and eighteen months

after the date, and lt turns on the commencement of the pro-

ceedings.

Now the question arlses (lt may not be of any

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- importance) whether this statute of repose or this section

which relates to that would be confusing unless it is related

to the particular language that le used in Sect ion 2.

You have got the factual data on which you can

knock this divorce out turning around a time period which

starts to run from the commencement of the proceedings in which

the divorce was obtained. That is a perfectly definite point

in any state. There le no doubt about it. It does not make

any difference whether it is six months, ayear, two years,

or what it is. Your factors that are involved in Section 2

turn upon that specific date which is bound to be a specific

date because it is a commencement and it can only mean one

thing.

The probiem here le whether you want to carry that

same specific date over into the question of the statute of

repose.

I mention it simply because I thlnk it ought to be

discussed so you definitely know what is involved.

MR. WORTHEN: I do not think you can rely upon the

suggestion of Mr. Stanley. Even under California you wait a

year. Under Utah you do not enter a final decree as you do

in California but the interlocutory decree automatically be-

comes final at the expiration of six months unless an appeal

or some other proceeding is taken.

You may fix the date Mr. Stanley suggested, and

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you may never have a final decree because of such appeal

or such proceedings on the part of the court in connection

with it.

MR. SCHNADER: I was going to suggest taking the

word "final" out in both places: "The validity of the decree

of divorce granted by the courts of another juriediccion, "

etc., and at the end "from the date of such decree."

Then it does matter whether it is final or inter-

locutory, or whatever.

CHAIRMAN BARRETT: Is that satisfactory to you?

MR. STANLEY: Anything is satisfactory to me. I am

just raising questions.

CHAIRMAN BARRETT: You seconded the motion, is

the reason I asked.

Is there further discussion of the motion?

MR. EHEY: Mr. Chairman, I wanted to ask Mr. Schnader

if he considered making his motion that the limitation period

was absolutely flat, absolutely, regardless of notice to the

other spouse, knowledge on her part, rights of infants,

whether they are bound by the statute even though they are

infants at the time.

MR. SCHNADER: That is what I had in mlnd.

MR. TEISER: Mr. Chairman, I think Mr. Schnader

has made a mistake in removlng the word "final" from his

original motion. I think you are golng to have a lot af

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-- confusion if you remove that word. There will be a question

of interlocutory decrees and whether they become final, ecc.

If he wants something definite, that first draft was the

better one. I see the Chairman nodding, and I hope that may

mean agreement. But whether it does or does not, I call

that to your attention because at least you have somethi ng

definite to go on, and the other one will be questionable.

I think "final" should stay ln.

MR. STANLEY: Mr. Chairman, may I ask Mr. Schnader

whether he would accept the language "from the date the de-

cree becomes absolute"? It might eliminate the difficulty

that we are confronted wlth over the question of flnality,

but there cannot be very. much difficulty over the words as

they have been expressed.

MR. SCHNADER: I have no objection to that.

MR. PRYOR: Mr. Chairman it seems to me chat the

sole thing you are after here is to put a limitation upon an

action which will attack the decree, and the decree you are

talking about is the one you would attack.

I would think you should say the limitation shall

be so many years from the date of the decree attacked, what-

ever ic was, whether you call it final or what.

MR. SCHNADER: That le the way it is now.

MR. PRYOR: It is the decree that le attacked that

you are talking about.

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MR. SCHNADER: That is right. That is the way it

18 if no change is made.

MR. STANLEY: You might have a dozen decrees. If

you put the word "absolute" in there, then you have a point.

CHAIRMAN BARRETT: Can you use that in the sense that

the Ilme for the appeal has expired or the appeal has been

disposed of?

MR. PRYOR: The limitation is against the action

which would attack a certain decree. Well, the limitation

should run from the date of that decree.

CHAIRMAN BARRETT: Are there further comments or

questions on the motion?

MR. LADD: What le the motion.

MR. STANLLY: Did you accept my suggestion, Mr.

Schnader?

MR. SCHNADE, R: I said I would have no objection IO

lt.

MR. STANLLY: I make the motion that those words be

inserted in there in place of the word "final. "

CHAIRMAN BARRE.TT: Is chat a substitute motion?

MR. STANLEY: That is che language chat is used

in connection with dtvorces--they become absolute.

CHAIRMAN BARRETT: You make that as an amendment

to Mr. Schnader's motion?

MR. STANLEY: That is right.

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[The quesIion was called for.]

CHAIRMAN BARRET~r: The question is on the amendment

by Mr. Stanley.

MR. SCHNADER: I want to read. this so that there

can be no doubt about it, Mr. Cha irman: "from the date when

such decree becomes absolute." Is that what you have in mind,

Mr. Stanley?

MR. STANLEY: Yes.

CHAIRMAN BARRETT: The question is on the amend-

ment. Those in favor of the amendment say "aye"; opposed by

the same sign. The ayes have it and the motion le carried.

The question now is on the motion of Mr. Schnader.

MR. MERRILL: Before you put the question, Mr.

Chairman, I should like to address one more inquiry to Mr.

Schnader. Should we not ln the first part of that Section re-

fer to a" decree of divorce from the bond of matrimony" when-

ever the term "divorce" appears, in order to make it conform

to the action taken?

MR. SCHNADER4 Yes, I think so.

CHAIRMAN BARRETT: Mr. Schnader, will you read

Section 3 which you now propose by your motion, so that the

house will understand?

MR. SCHNADER: Section 3. The validity of the

decree of divorce from the bonds of matrimony granted

by the courts of another jurisdiction shall not be

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- subject to attack, directly, 1ndlrectly or col-

laterally, in any civil or criminal proceeding in

the courts of this state after the expiration of

blank years from the date when such decree becomes

absolute -- or became absolute.

CHAIRMAN BARRETT: Those in favor of the motion

signify by saying 'laye"; opposed by the same sign. The

0 ayes appear to have it, the ayes have it and the motion is

carried.

Mr. Merrill, reverting now to Section 2.

MR. MERRILL: Mr. Chairman, if there 18 no further

discussion of Section 2 (the committee has of course expressed

itself in order to Nut the matter before the house) I w111

move that the Committee of the Whole approve Section 2 as

amended.

MR. EHEY: If the Chairman please, I asked before

if it was under consideration. I wanted to ask a question

about Section 2. First, whether in 2 the words "within

twelve months" does that mean at any time or for any period

of time within twelve months, or did the committee mean

continuously for twelve months ? In other words, would it

mean one-day domicil within that period of twelve months?

MR. MERRILL: As I understand the language, it

will apply to a domicil, that the man has domiciled in the

state at any time within twelve months. Of course actually

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your ultimate fact le to prove he never changed his domicil.

That is the ultimate fact you are to prove, and it le the

combination of establishing the fact of domicll at sometime

within the twelve months prior to the commencement of the

action in the foreign state and the return within eighteen

months of the date of his departure that establishes the

prima facie case.

The ultimate case, however, you must remember, is

that he was domiciled at all times. He has the rlght to re-

but the prima facle case and introduce evidence to show

that actually he did change his domicil and for a time was

domiciled outside the state in the state of the forum, and

then it becomes a question of fact to determine whether he

has sufficiently rebutted. It does not establlsh an lr-

rebuttable, substantive rule.

MR. EHEY: I was thinklng of that. If you have

a man who establishes domicil within one month before his de-

parture, your language contemplates that this Section will

apply?

MR. MERRILL: I think that is true, yes.

MR. EHEY: My other question is, you have three

qualifications in that Section, and in answer to seVeral

questions earlier in the day you indicated, first, that he is

domiciled within the state within twelve months, and second,

resumption of residence in eighteen months. Naturally,

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he had to coexist for the presumption to arise. It was not

clear to me whether your succeeding clause is in the dis-

junctive.

MR. MERRILL: That ls disJunctlve.

MR. EHEY: I understood that was disjunctive, but

can you have in your Section a combination of 1 and 2, or 1

and 3, or is it a combination of 1 and 2 or 3 alone?

MR. MERRILL: If I understand your groupings there,

I should say it is a combination of 1 and 2 in one place,

and then 3 stands alone. Those two are not in opposition,

jz but they are equally yaked, and either one will support the

prima facie case.

MR. EHEY: In other words, even if he had not been

domiciled in the state, if he at all times after departure

and until his return maintained in this state a place of

residence, that alone would raise a presumption?

My point is not directed to the policy but to the

question of construction. I do not think it is entirely

clear.

MR. MERRILL: The whole Section, of course, as-

sumes that the person whose divorce is called into question

was originally a domiciliary in the enacting state.

MR. EHEY: That would mean that 2 and 3 are

alternatives, but 1 18 present in any event?

MR. LADD: Sure.

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-- MR. MERRILL: I think that ls true.

MR. EHEY: I am urging that it is not clear from a

readlng that the disjunctive "or" is a substitute only for

the second part of your Section, or whether it is disjunctive

for all of it.

MR. MERRILL: I think I can clear that up for the

inquirer. I think it ls clear in fact. "Or if such person"

relates back to the person. obtaining a divorce in another

jurisdiction who' is domiciled in the state within twelve

months.

MR. EHEY: Or does ot merely mean, if a person ob-

tains a divorce in another jurisdiction?

MR. MERRILL: That would not be my reading. However,

it might help to clear that up if we were to alter the

language a bit.

MR. PRYOR: I want to suggest a clarifying amend-

ment wlth the insertion of the word "either" whichever place

you want it. If you say "If a person obtaining a divorce

in another jurisdiction was either domiciled in this state

wlthin twelve months prior to the commencement of the pro-

ceeding therefor, and resumed residence in this state, " etc.,

"or lf such person at all times after his departure, I' etc.,

fhat means one thing. Now, 1 f you put the "either" in the

other place, it would mean something else.

MR. EHEY: I agree.

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MR. MERRILL: May I say the committee also agrees.

We suggest that the t'·either't' be placed between "and" and

"resumed" because that is, I think, what our meaning would be.

MR. SCHNADER: I do not agree. I think you still

will have a very clumsy sentence.

I suggest that you say "Proof of the fact that a

person obtaining a divorce in another jurisdiction was domi-

ciled in that stat e within twelve months prior to the commence-

ment of the proceeding therefor, and resumed residence in

this state within eighteen months after the date of his de-

parture therefrom, or proof of the fact, " and then use what

is the language of the new clause, "shall be prima facie

evidence."

MR. MERRILL: I would have no objection to that,

myself.

CHAIRMAN BARRETT: You make that as an amendment,

Mr. Schnader?

MR. SCHNADER: I make it as a suggestion.

MR. MERRILL: My colleagues and I would be disposed

to accept it.

MR. CLIFFORD: You still have not got what Mr.

Ehey said.

MR. MERRIIL: I think I have.

MR. SCHNADER: You dld not follow me: "Proof of

the fact that a person obtaining a divorce in another

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-- jurisdiction was domiclled in this state, " etc., "and resumed

residence in this state within eighteen months after the

date of hls departure therefrom, or proof of the fact that

such a person maintained at all times a place of residence

within this state shall be prima facie evidence that the

person was domiciled in this state before the proceeding was

commenced."

CHAIRMAN BARRETT: What is the view of the commit-

tee as to that suggestion?

MR. MERRILL: It satisfies us all, I think.

CHAIRMAN BARRETT: The committee accepts that sug-

gestion.

Is there further discussion of Mr. Merrill's motion

that Section 2 as amended be.approved?

MR. STANLEY: Tentatively approved.

CHAIRMAN BARRETT: If-there be no further discussion

the question is on the motion of Mr. Merrill, that Section 2

be tentatively approved. All those ln favor say 11 aye";

opposed by the same sign. The ayes have it and the motion is

carried.

Proceed to Section 4.

MR...STANLEY: Before proceeding with Section 4,

assuming that Section 3 is adopted now as suggested by Bill

Schnader, we have this character of a situation. The husband

goes to Nevada and gets a divorce. In that divorce there

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- a provision, we will say, for support of some sort. He pays

his support money during a certain period of time. We then

have another provision of repose. Let us say it is three

years or flve years, or whatever you put in there. Well, let

us assume that nothing is done until this period has passed.

Then the divorce in Nevada is binding as far as all of it s

effects are concerned and all of its provlslons.

Now suppose after two years of this period have

elapsed. The husband returns to Nevada and gets the decree

modified with respect to the support money, or does it two

months before the expiration of that time. He gets the thing

completely modified.

The thing which is going along and might well be

allowed to pass into a state of repose now becomes a situation

that may affect the children because of the modification. Are

we overlooking something at that point that may become im-

portant?

I just raise the question.

MR. SCHNADER: As I understand it, I agree, any

part of the decree that relates to custody of the children

or allowances for their maintenance is not binding in any

other state upon proof of the circumstance of a change. That

le all that need be done to set it aside, no matter what we

say here.

MR. TEIS ER: Mr. Chairman, I take it you are through

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- with the substantial provisions of this Act.

MR. MERRILL: I might inquire of the Chair lf in

his opinion we should have a formal vote accepting Section 3.

MR. SCHNADER: That was the motion.

MR. TEISER: I want to raise a question, because

I have talked during the dinner hour to several of my con-

freres, and we have been puzzled about the requirement that was

raised by a question raised by Mr. McLaren first. I do not

think it was fully answered. That is, why the requirement

that both parties be domiciled in the state, residents of

the state? Why isn't isn't the fact sufficient that the

moving party be the only requirement, which is that the moving

party be domiciled in the state or has residence in the

state? Why the two parties? There may be some reason for

it, but we have not been able to see it.

MR. MERRILL: The situation which normally occurs

le that the husband leaves the wife or the wife leaves the

husband, and goes to Reno, Miami, or Hot Springs, let us

say, and gets a divorce and comes back home. That is the

thing we have in mind.

MR. TEISER: That is not always the case.

CHAIRMAN BARRETT: Are you talking about Section 12

MR. TEISER: Yes.

CHAIRMAN BARRETT: Isn't the answer to that that

lf both parties are domiciled in this state, then there can

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- be no domicil in the foreign state where the decree was

entered?

MR. TEISER: Suppose the moving party is domiciled

in the state and there 1*s been a separation, and the wlfe

is domiciled in another state. Suppose I want to get a

divorce and my wife in the meantime having left me and gone to

live in Mr. McLaren' s state, liking him, perhaps [laughter]

well, we will withdraw the personal element in it; I think

you see what I mean, notwithstanding, because the personal

elements were not in accord with the facts.

That is what we are talking about. I do nof see

any reason for requiring that both parties be resident of

a state. It is the moving party you are trying to shoot at.

MR. MERRILL: Some concern, of course, has been

expressed here with regard to the question of constitutional-

0ity of this sort of provision. I think Mr. Fertig, who is

not present now, has a case in whlch he 18 ralslng the point

that since the two Williams cases, for instance, no sta-te may

enjoin even bne of its residents or supposed residents from

maintaining a divorce action in another jurisdiction, be-

cause that would be a sort of advance determination.

Now, while I do not concur with that constitualonal

point, yet it le one that may be raised, and you will put

this statute in a little stronger position constitutionally,

I think, if you relate it to the public policy of the state

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in looking after the welfare of its own domiciliaries and

in establishing control and making effective its control

over the marital status of its domiciliarles, and not indicat-

ing any concern for the welfare, for instance, of a domiciliary

of New York.

MR. TEISER: What you are thinking about is the

policy of the state, really, not the person. It is a fraud on

the state.

MR. MERRILL: Yes.

MR. TEISER: The state has an interest in divorces,

and the basis of the whole Act is that it has been a fraud

on the jurisdiction of a state.

MR. MERRILL: That is the theory.

MR. TEISER: And when the party has gone back to

Nevada and imposed on that ---

MR. MERRILL: It le not so much protecting Nevada

as the enacting state.

MR. SCHNADER: If the non-moving party had a genuine

domicil in the state granting the divorce, the divorce would

be good.

MR. MERRILL: Yes.

MR. SC HNADER: You couldn ' t say what you hav e in

mind, because that would just be unconstitutional, plainly.

MR. TEISER: If the non-moving party?

MR. SCHNADER: If two persons who at one time had

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a domicil in Oregon *re the parties involved., the husband le

still domiciled in Oregon according to the Oregon authori-

ties, but the wife sometime ago left Oregon, moved to Nevada,

acquired a bona fide domicil there.

MR. TEISER: I was talking about moving to Washing-

ton.

MR. SCHNADER: Well, take my case. You could not

say what you are proposing to say, because it would cover

this situation also. If she ha*s a bona fide domicil in Nevada,

the decree is good no matter where the husbandle domicil may

be. So I think if Section 1 is to be used at all i.t has to

be stated this Way.

MR. TEISER: I agree with you. But I do not see

the answer to the question as to why the requirement of both

parties being residents.

MR. McLAREN: I am glad Mr. Teiser has resurrected

the point which I attempted to ralse before the adjournment.

I then said that I thought Section 1 was absolutely useless.

I want to go further now and say that it is inconsistent wit h

all that follows. Nowhere in the statute does it say that

a divorce obtained where the moving party is in the wrong

jurisdiction shall be void. There is a limitation to that

effect in Section 2 which assumes or presupposes that if the

moving party who obtained the divorce was in the wrong jurie-

diction, then it may be subject to attack within a certain

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-- statutory period of limitations.

Now, the moment that you adopt Section 2 which by

inference recognizes that the divorce is void if the moving

party obtaining it was in the wrong jurisdiction, you are

rendering meaningless that particular requirement of Section 1

whlch includes the domicil of both parties in the wrong

jurisdiction.

MR. MERRILL: I find it difficult, Mr. McLaren,

to see how we have excluded the moving party by Section 1

when we include them both.

MR. McLAREN: Let me state it differently. The

only provision in this Act which expressly says that a divorce

decree is void is predicated on the conditions enumerated

in Section 1.

MR. MERRILL: Which includes the moving party.

MR. McLAREN: Both parties.

MR. MERRILL: But it does include the moving party.

MR. McLAREN: But it says both parties. It does

not specify what happens if only one of them le a resident

of this state at the time the divorce was rendered.

MR. MERRILL: We are not trying to cover that

situation. We do not try to cover it for the reasons that I

suggested, and' in addition I have to thank my friend Bill

Schnader for pointing out that it would be very difficult

to draft a statute which would in terms apply only to the

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moving party which might not at times apply to the case

where the defendant happened to be domiciled in the same juris-

diction with the moving party.

MR. McLAREN: May I finish my statement, Mr. Chair-

man? I submit that the case where the moving party got out

into the wrong jurisdiction is the precise and the only sub=

stantial thing that all of this legislation is about. I thlnk

that languagp was used by the Supreme Court in the Williams

case, in whlch some reference was made to the fact that both

husband and wife were residents of North Carolina or South

Carolina. At any rate, it has always seemed to me that the

fact that the husband and wife in that divorce action hap-

pened both to be residents of one state was pure coincidence,

was accidental, and had no bearing on the decision which

the Supreme Court rendered.

The decision of the Supreme Court was bottomed on

the fact that the party who got the divorce was in a court

that had no jurisdiction because he did not live there. The

fact where his wife may have lived was utterly immaterial.

MR. MERRILL: I agree to that extent, but we are

getting that man by this language. The only thing is that we

do not undertake to protect the non-resident wife in those

few instances where that will octur.

MR. SCHNADER: It is true, is it not, that if Sec-

tion 2 came into play and the prima facie evidence were es-

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tablished, and the answer was"yes, but my spouse had a bona

fide domicil in Nevada, " that would be a complete answerZ

MR. MERRILL: It would.

MR. TEISER: I still think that the domicll'~ques-

tion, where the wife lives jh'Washington and the husband lives

in Oregon and then the husband goes to Nevada to get the di-

vorce, the case which Mr. McLaren is speaking about, is not

covered here and ought to be covered, because that is the

person we are moving against.

You can eliminate what Mr. Schnader le talking about

very easily by providing in there then some clause to the

effect that the non-moving party ls not-a resident of the

state where the decree is granted. You can eliminate that.

MR. STANLEY: I would like to ask a question. Are

we not concerned purely with the question of two people living

together?

MR. MERRILL: Normally I think we are.

MR. STANLEY: Then isn' t the difference the

domicil of her husband, who picks up and goes out and goes to

Nevada or another state for the purpose of getting a divorce

from his wife, or she does the same?

MR. MERRILL: Or she does the same thing.

MR. STANLEY: Ic is a question of what this Act is

directed to. If we are concerned purely with the people that

are living together, all right. This hits the nail on the

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head. Apparently, what Mr. Teiser wants ls, after people

have separated and run all over the country and established

separate domicils, then we are concerned about what they do

after that.

It seems to me we should let them go if they have

lived apart, let's not try to bite that off, because that is

too big a thank.

MR. LADD: I want to supplement what Mr. Stanley

has just said. Not only would they be living apart in dif-

ferent states, but under the provisions as we have them they

would have had to have lived apart for over one full year,

one in one state and one in another. Well, lf they have done

that I do not see that we ought to worry much about them on

this.

MR. STANLEY: Let them go on their way.

MR. TEISER: The answer to that may be a perfectly

normal and decent situation. The wife may have been justl-

fled in leaving the residence of the husband, and the husband

may be the faulty one.

MR. LADD: But not changing her domicil.

MR. TEISER: Yes. It may be very reasonable that

a wife would change her domicil because of the actions of

her husband; very reasonable indeed. Anything may happen. I

can figure out many cases where the wlfe would be fully

justified in living in another state, and be entirely an

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- Innocent party.

MR. LADD: Then she would be in a posltlon in that

state to get a divorce, having lived there.

MR. TEISER: Maybe he wants the divorce; mayb-e he

is anxious to get a divorce. He has no grounds and he cannot

get one in that state. He fixes a residence in another

state against the interest of his wife and against the inter-

est of the stat e.

That is what I think Mr. McLaren is talking about,

not where the wife runs away from her husband.

It seema b me there is no reason for excluding that

kind of case.

MR. LADD: She could move away but would not have

to change her domicil, because of physical presence in an-

other state.

MR. TEISER: Maybe she has a position there. Many

things may happen.

MR. GARD: Mr. Chairman, I wonder if there is one

angle here that is belng overlooked. The situation we are

talking about now which is not covered by this Act, is the

possibility that under the Supreme Court decision where the

decree could be set as ld e, where only one of the part le s

lived in the state having this statute. Nevertheless, in

that situation we have property rights involved which would

be subject to the attack against that judgment under the

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- Supreme Court decision ra.ther than under thle statute.

Aren't we seeking here to minimize as much as possible those

problems that arlse not only as between the personal rela-

tions of the parties but property rights as well? We come

along with the statute we propose, or a statute of limitations

which fixes the time after whic h the property rights are set-

tled. That may be the reason and Justification for Mr.

Teiser's suggestion.

I think as Mr. Stanley does; as far as the parties

themselves are concerned we should not have too much concern

about them where they are not both living in the local state,

but when it comes to property rights and related matters of

that kind, I think there might be some merit in that.

MR. MERRILL: Mr. Chairman, Section 1 has already

been passed tentatly ely. The Chairman of the committee has

no further motion to make in respect to it.

Sections 4, 5 and 6 and 7, as they now become, are

purely formal which I think call for no discussion.

MR. KUHNS: Mr. Chalrman, perhaps they do not, but

I would like to ask one question. Suppose thls Act becomes

effective in Nebraska in July, 1949, and the Act reads in

Section 7 that it takes effect such and such a date. What

does it do first? Well, I would say first on pending cases,

cases in which the suit has been filed, but you have not

got to the point of introducing the proof.

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MR. LADD: It would apply at once.

MR. MERRILL: I think it applies.

MR. KUHNS: You mean applies immediately?

MR. MERRILL: Immediately on the day of effective-

ness.

MR. KUHNS: All right. Now, it would make no differ-

ence whatever as to the time periods involved in Section 2

if they had expired at that time?

MR. MERRILL: I think not.

MR. KUHNS: I want to spell this out in the record fir

my information.

On Mr. Schnader's amendment, is the application of

the effective date of the Act going to be a commencement

of the statutory period as of the effective date of the Act

as to all decrees2 Suppose you insert three years.

MR. SCHNADER: That is procedural and would be im-

mediately effective.

MR. KUHNS: I am concerned about pending actions--

that is what I am thinking about--as applied to your case in

the second Section where I can see it is a matter of proof.

It depends on when the case comes up. But I am wondering what

happens to pending actions in your case. Does the statute

of limitations become a defense if it wasn't when the suit

was started?

MR. SCHNADER: That is my understanding, yes.

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-- MR. KUHNS: Suppose the answer has been filed and

has not set it up, and then the Act becomes effective. Is

there a good defense then?

MR. LADD: It has to be pleaded.

MR. KUHNS: The issues are made up but the case

is not trled. What I am getting at ls, in our Uniform Statute

of Limitations Act, for example, I think we covered that

situation with a specific paragraph as to the effect of the

Acts on pending cases. I do not think our purely formal

section on the date this Act shall become effective, "This

Act shall become effective such-and-such a date, " will work

here.

In other words, I think it will lead us into trouble.

I do not like the idea. You say it is procedural, but it le

evidence. It is going to make a difference on what day the

case happens to be tried, as a matter of fact, not even on

the pleadings, as far as Section 2 18 concerned.

MR. HAVIGHURST: Mr. Chairman, the discussion on

Section 1 has suggested to me a matter which involves both

Sections 1 and 2.

Section 1, while it says what kind of a divorce

would not be recognized, does not say that all other divorces

should be. And if the court as a matter of non-statutory

law should take the view which Mr. Telser has presented and

regard the divorce in another jurisdiction as valid even

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even though one of the parties was domiciled elsewhere, then

the prima facie evidence rule of Section 2, the way it is

worded, would be applicable to such a proceeding, because

Section 2 only refers to the case of a person obtalning a

Z divorce in another jurisdiction..1.-<

U MR. MERRILL: I beg your pardon. We made a change

in Section 2 to conform with Section 1. I think that was

done before you entered the room this evening. We have a

parallelism of language there that refers to a divorce from

the bonds of matrimony.

MR. HAVIGHURST: What I say has nothing to do with

the adding of the words "the bonds of matrimony."

MR. MERRILL: Section 2 would not apply to this

othe r type of dlvorce.

MR. HAVIGHURST: It would still be a divorce from

the bonds of matrlmony.

MR. MERRILL: I see your point.

MR. HAVINGHURST: But Sgction 2 only refers to"a per-

son obtaining a divorce in another jurisdiction was domiciled

in this state, " and so would apply even though the other

party to the marriage were domiciled in another state.

MR. MERRILL: It might be the effect.

MR. HAVIGHURST: If the intention is to confine

the effect of Section 2 to dases which come within Section 2,

then some reference to Section 1 might be desirable in

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-- Sectlon 2.

MR. MERRILL: Personally, I would not regard it

as a matter of grave Importance lf the effect of the language

you point out were given. It is a matter for the Committee

of the Whole, I suppose.

MR. HAVIGHURST: I would leave that as a sugges-

tlon.

0 MR. KUHNS: Are you not go ing to do anything about

Section 7?

MR. MERRILL: The floor is open for a motion, I

presume.

If there are no further suggestions, Mr. Chairman,

I move that the committee rise and report to the Conference

that it has had under consideration the proposed Uniform

Divorce Recogntion Act, that it has considered the same Section

by Section, and that it approves it and recommends it to

the Conference for adoption.

CHAIRMAN BARRETT: Is there a second to the

motion?

MR. JAMES: I second it.

CHAIRMAN BARRETT: It has been moved and seconded

that the Committee of the Whole report that it has considered

the Uniform Divorce Recognition Act Section by Section,

approved it, and recommends its adoption by the Conference.

MR. EHEY: Mr. Chairman, I would like to ask Mr.

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Merrill one question, if in his opinion this Act with the

various amendments tentatively adopted at the committee meet-

ing today, does. not mean that if any state changes its

divorce laws and, for instance, adopts the Mexican mail order

divorce system, the effect of this statute is to make such

divorees absolutely binding in the states which adopt this

statute after the prescribed period of limitation.

MR. MERRILL: I mentioned that fact to Mr. Schnader.

I think that is a possibility. It is a remote possibility.

CHAIRMAN BARRETT: The question is on the motion.

MR. TEISER: Do I understand the motion to mean

this is a final draft?

MR. MERRILL: It W111 be redrafted to include the

amendments that have been voted here.

MR. TEISER: We are voting on it before we see

the final draft?

MR. MERRILL: I think the amendments are clear. It

will, of course, be mimeographed.

CHAIRMAN BARRETT: The motion is that the Committee

of the Whole has tentatively approved it and recommends its

adopt ion by the Conference.

MR. LLEWELLYN: Mr. Chairman, before that motionls

put I want to come back 0 the combination, of the question

from the floor by a gentleman whom I do not know, and the

answer by the Chairman of the Section.

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-- Is it seriously considered in this Conference that

without amendment to take care of the contingency an Act

should be approved by the Committee of the Whole which, on

question from the floor and answer from the Chairman of the

committee, envisages the posslbility-*explicitly envisages

the possibility-that the effect of the Act is to approve the

type of divorce which, in its disregard of what was the

language of the committee, the domestic regulation of the in-

stitution of matrimony, would even encourage recognition of

mall order divorces?

Mr. Chairman, this does not seem to me an intelli-

gent question to ask except that the answer appears to be yes.

MR. MERRILL: Mr. Llewellyn, the real answer, of

course, and I answered the·question on the basis on which it

was asked, assuming sucn an institution were set up. But

as you no doubt are aware, no state so long as the Supreme

Court of the United States retains its present constitutional

doctrine, could set up such an institution as the Mexican

mail order divorce.

MR. ILEWELLYN: Of course no state could, but Mexico

remains. Now, knowing that Mexico remains, and being not

completely ignorant of the fact that a business (to use a

term which you and I both understand) flourishing in some

parts of our country might find it desirable to migrate,

is there any reason for not adding a Section to the Act--we

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have tlme enough at this Conference -- which would take care of

people who did not even in the process of getting the divorce,

move out of their home state?

CHAIRMAN BARRETT: Mr. Llewellyn, would you care to

make a substitute motion?

MR. LLEWELLYN: Slr, at the moment I do not see how--

Well, yes, I can, too, can't I? I can make a substitute

motion to the effect that the committee be instructed to pre-

pare and bring in at this session of the Conference a section

which will exclude the danger of mail order divorces.

I think it is easy to do; very easy. I am sure we

can make time for it, I do not think it will interfere with

the essential purpose of the Act, and I suggest that we would

feel kind of safer in our gizzards if that were done.

[The motion was seconded.]

CHAIRMAN BARRETT: The question is on the substitute

motion of Mr. Llewellyn. Those in favor let it be known by

saying "aye"; opposed by the same sign. Now the ayes appear

to have lt ---

MR. BROSSARD: I call for a division.

CHAIRMAN BARRETT: A division is called for. Those

in favor of the substitute motion of Mr. Llewellyn raise your

hand. Seventeen in favor. Those opposed to the substitute

motion? Fifteen. The substitute motion carried by seventeen

to fifteen. I believe that dispenses with the original

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motion.

MR. MERRILL: Mr. Chairman, may I ask Mr. Llewellynts

consent to at least submit to him and to bring in, if he

thinks it meets his suggestion, the amendment which he has

just proposed? I believe that can be done here and now.

MR. LLEWELLYNT If you've got it, I'd love it. I do

not like this whole Act, but I like a clean job done when we

are doing a job.

MR. MERRILL: Let us take the present Section 3

which reads, if you have kept up with the progress of the

changes, "The validity of a decree of divorce granted by the

courts of another jurisdiction shall not be subject to attack

directly, indirectly or collaterally, in any civil or criminal

proceeding in the courts of this state after the expiration

of blank years from the date upon which such decree became

absolute."

Let us then take that Section and change it to read:

"The validity of a final decree of divorce granted by the

courts of another Jurisdiction within the Unit ed States, " and

so on; That brlngs Into effect the constitutional doctrine.

It puts the divorce granted by the foreign Jurisdiction

entirely outslde the purview of this limitation.

MR. LLEWELLYN: I think that avoids the negative

implication.

MR. MERRILL: Then, Mr. Chairman, I move the

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- amendment of Section 3 ---

MR. SCHNADER: Mr. Chairman, that language was in

there originally.

MR. DALY: Mr. Chairman, that still does not Rx-

clude the possibility referred to by Mr. Llewellyn, of someone

of our states going into the mail order divorce business.

MR. MERRILL: As long as the Constitution of the

United States as presently interpreted stands, I think it

does.

MR. DALY: I agree wlth the professor that if you

are going to do the job, do it completely.

I suggest further that you make aproviso, sir, to

the effect "provlding the moving party in the divorce was

personally present in the state granting it." That keeps

away from any question of domicil but excludes the mail order

business.

MR. MERRILL: Let us put it without a proviso, and

put lt thls way.

MR. DALY: That is just the idea.

MR. EHEY: I wanted to make this statement, Mr.

Chairman. I used the extreme example that I used because

it seemed to me it brought the matter into sharp focus. I

think the problem goes much deeper than that, nor do I. r

think the suggestion made by the Chairman or, I think;

Professor Llewellyn's suggestion, meet the situation.

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Let me give you another example which I am sure the

Chairman of the committee would agree could happen Consti-

tutionally.

Suppose the State of Nevada or the State of Florida

or any state in the United States decides to go into the

U divorce mill business, and provides for thirty days' residence,

ten daysi residence or five daysi residence, in order to get

a divorce.

Then I ask whether under the entire Act, wlth the

amendments put in it here today, does not give that a stamp

of absolute approval beyond any question of shaking lt, as

soon as the period of limitations has elapsed.

MR. MERRILL: There you put your finger on the

objection which the committee had to entering into the question

of repose or limitations in this Act. The sense of the

house was to overrule the committee on that point.

MR. EHEY: If that is so, aren't we in adopting this

Act with the amendments, not at all meeting the objection

which we are trying to meet, but encouraging a divorce mill

business in dozens of states?

MR. MERRILL: Not to the extent that action is

taken within a reasonably prompt time as regarded by the

majority of the Committee of the Whole, evidenced by its

action this evening. The committee would agree with you in

policy, I think, but the sense of the Committee of the Whole

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__ i S the o the r way.

MR. EHEY: Wouldn't it also apply even though

there is no provision for notice to the absent spouse, so

that you could ha ve a. divorce without any notice at all to

the absent spouse?

MR. MERRILL: Of course, there you are again

getting into the question of due process and such limitations

on jurisdiction of states.

MR. EHEY: Then suppose publication is held due

process in divorce cases.

MR. MERRILL: That, as I repeat, goes to the issue

of the policy of putting in a statute of repose in this Act.

The commltteee no doubt would be glad to have that reconsid-

ered.

CHAIRMAN BARRETT: Dld you propose an amendment to

Section 3, Mr. Merrill?

MR. MERRILL: Yes, I did. "Validity of a decree

of divorce granted by the court of another jurisdiction

within the United States in an action where the plaintiff

was present personally."

MR. SCHNADER: Who is putting those words in?

CHAIRMAN BARRETT: I understand, Mr. Schnader,

and the Chair so rules, that the committee 18 offering that as

an amendment to your No. 3. At any rate, if that is not true

I want to be corrected now.

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-- MR. SCHNADER: I raise a point of order. Isn't

this ever going to terminate? We have passed that Section 3.

MR. EHE Y: I rise to a polnt of Information, Mr.

Chairman. Wasn't the vote on Professor Llewellyn's motion

as a substitute for Mr. Schnader's motion, a vote of approval,

final approval, of all of the Sections of the Aft, with the

amendment to be drafted by the committee?

CHAIRMAN BARRETT: I understood Mr. Llewellyn' s

motlon to be to refer to the committee the direction to bring

in a section that would protect the situation about which

he is talking. Am I right, Mr. Llewellyn?

MR. LLEWELLYN: Without any other reference, sir,

to the action of the house hltherto, or to the approval of the

rest of the Act.

CHAIRMAN BARRETT: Correct, professor.

MR. EHEY: Then the question of the approval of the

Act in its entirety le still before the committee?

CHAIRMAN BARRETT: Yes, slr.

MR. LLEWELLYN: And., Mr. Chairman, may I rise to a

polnt of personal privilege? Have I got to be cussed by

the title of "professor" every time I am referred to?

[Laughter]

CHAIRMAN BARRETT: It is a matter of habit now, sir.

MR. MERRILL: Mr. Chairman, what is your ruling

now on the present parliamentary situation?

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-- CHAIRMAN BARRETT: It is this: The committee is

directed to bring in a section to protect the situation dis-

cussed by Mr. Llewellyn. Now, if you want to present that now

we will permit you to do so. If you are not prepared to do so,

I suggest that you report progress and ask leave to sit

again.

MR. MERRILL: Will we have time at which we may sit

again in time to present this matter finally before the Con-

ference?

MR. LLEWELLYN: Sir, since I have some control of

the time of the Commercial Acts Section, I will promise you,

since it was my intervention that dispossessed you for the mo-

ment, tlme.

MR. MERRILL: With that understandlng, Mr. Chairman ---

MR. CLIFFORD: Mr. Chairman, I suggest we recess

for ten minutes. I so move.

[The motion was seconded.]

CHAIRMAN BARRETT: It is moved that the Committee

of the Whole recess for ten minutes. Those in favor signify

by saying "aye"; opposed "no." It is carried.

[Brief recess.]

CHA IRMAN BARRETT: The Commlttee of the Whole will

reconvene. The Chairman recognizes Mr. Merrill.

MR. MERRILL: Mr. Chairman, I move that the

Committee of the Whole rise, report progress on the Uniform

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- Divorce Recognition Aft, and begs leave to slt again.

[The motion was seconded.]

CHAIRMAN BARRETT: The motion is that the Committee

of the Whole rise, report progress on the Uniform Divorce

Recognition Act, and beg leave 50 sit again. All in favor

signify by saying "aye"; opposed "no." The motion le carried.

MR. CONNOR: Mr. Chairman, I suggest that the

Chairman of the Committee of the Whole simply report to the

president, so the record will have it. Then we can adjourn.

CHAIRMAN BARRETT: I so report for the record.

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Proceedings in Committee of the Whole

Friday Morning, September 19, 1947

An Act Concerning the Recognition, of a Dlvorce

Obtained in Another Jurisdiction

And to Make Uniform the Law with Reference Thereto

Mr. William L. Beers, of Connecticut, acting as

Chairman of the Committee of the Whole; Mr. Maurice H.

Merrill, of Oklahoma, Chairman of the Committee on the pro-

posed Act.

CHAIRMAN BEERS: The Committee of the Whole will

come to order, and the Chairman of the committee will present

a redraft of An Act Concerning the Recognition of a Divorce

Obtained in Another Jurisdiction and to Make Uniform the Law

with Reference Thereto.

A good deal of this has been discussed at a pre-

vious considerations I will therefore ask the Reporter to

proceedzby reading each Section and indicating in what way,

if any, it has been changed slnce the earller draft before

the discussion begins.

MR. MERRILL: Mr. Chairman, as you will note we did

not recopy in the revision the voluminous-and possibly too

4 voluminous--notes which accompanied the original. We assume

that the Commissioners have kept their copies of the original

and will be able to refer to those notes if it should become

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- necessary.

Section 1. A divorce from the bonds of matri-

mony obtained in another jurisdiction shall be of

no force or effect in this state, if both parties

to the marriage were domiciled in this state at

the time the proceeding for the divorce was commenced.

J The only change. is the insertion of the words

"from the bonds of matrimony" following "A divorce" which

was voted as an amendment by the Committee of the Whole at

the last consideration. There is no other change.

CHAIRMAN BEERS: If there is no new comment with

reference to Section 1 which is unchanged from the decision

of the Committee before, we will proceed to Section 2.

MR. MERRILL: Section 2. Proof that a person

obtaining a divorce from the bonds of matrlmony in

another jurisdiction(a) was domiclled in this state

within twelve months prior to the commencement of

the proceeding therefor and resumed residence in

this state within eighteen months after the date of

his departure therefrom, or (b) at all times after

his departure from this state and until his return

maintained a place of residence within this state,

shall be prima facie evidence that the person

was domiciled in this state when the divorce proceeding

was commenced.

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- That Section as redrafted simply embodies the amend-

ment which was voted at the last session of the Committee.

There are a few changes in form. We have not repeated "proof

of the fact that, " because we felt it would be governed by

the simple statement in the beginning, "Proof that, " and we

have inserted the small letters in parenthesls (a) and (b)

to make clear the alternative basis for drawing the inference.

Are there any questions concerning Section 29

* Now we come to Section 3 which was the principal

point upon which the Act was referred to us at the last meet-

1ng of the Commlttee of the Whole.

Section 3. The validity of a decree of divorce

from the bonds of matrimony granted by the courts

of another jurisdiction shall not be subject to

attack, directly, indirectly, ar collaterally in any

civil or criminal proceeding in the courts of this

state, after the expiration of C 1 years from

the date when such decree became absolute; pro-

vided, such decree was obtained in a Jurisdiction

in which the plaintiff was actually and continu-

ously present immediately prior to the commence-

ment of the proceeding for a period at least equal

to the minimum period of residence required by any

jurisdiction within the United States as a condi-

tion for maintaining a proceeding for divorce from

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- the bonds of matrlmony. This Section shall not

apply to any proceeding pending on the effective

date of this Act.

By thls Section we do a number of things, of course,

all connected. In the first place we embody the folicy which

this committee voted at the prior session of placing a period

of repose Into the policy of the Act, the pollcy of provld-

ing a period of repose for divorces which may have been ob-

talned under conditions which would otherwise render them

unacceptable for recognition under the general policy of the

Act.

We do that by the first clause which is unchanged

* from the form in which it was voted in the Committee of theA.

Whole. The committee has left advisedly the period blank,

the number of years, and our recommendatlon to the Committee

j of the Whole is that it be left blank and be submitted to the

states so.

We believe that that ls not a matter on which the

uniformity of the law is important. We feel that it le a

matter for the domestic policy of each state. You will under-

stand I am slmply statlng the recommendation of the committee

at thls tlme, gentlemen; there will be opportunity to discuss

later.

Then we come to the proviso, and there we have

undertaken (and I think we have done the job) to dispose of

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- the problem that was ralsed concerning the giving of some

sort of blessing or repose to mail order divorces. That

spector was raised at the last meeting, and we have tried to

lay it to rest. We acknowledge with gratitude the assistance

of Mr. Llewellyn and of other gentlemen who have brought up

the polnt.

We do lt thls way, that we provide that the decree

is obtained in the jurisdiction in which the plaintiff was

actually and continuously present immediately prior to the

commencement of the proceeding for a period at least equal

to the minimum period of residence required by any jurisdic-

tion within the United States as a condition for maintaining

a proceedlng for divorce from the bonds of matrimony.

It was the consensus of this committee that the

Nevada divorces (to take the state with the shortest require-

ment) should be included within the statute of repose. There

ls no desire apparently to set up any limit there. On the

other hand, if we restrlcted the limitation to divorces

granted within the jurisdiction of the United States as we

originally thought we might, we were faced with the problem

that there might be situations in which a man actually went

to a jurisdiction in which it would be possible for him to

secure a mall order divorce but dld not do that. He left

there and obtained his divorce under exactly the same

conditions of residence that would satlsfy the condltlons of

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- residence in some American jurisdictions.

It might be the case of Mr. Gould, for instance,

in the New York case which appears in the notes to our re-

port, where the residence was for many years in France and

yet domicll was not acquired under the facts of the case.

If we come in with a statute whlch undertakes to

grant repose to Mr. Williams who went to Nevada for the six-

week period and then returned to his home state, we do not

grant repose to Mr. Gould who came from.1France after a period

of many years, assuming they both come to the same state.

We have a neat problem, and one which we think

probably would be a dlfflcult one to justify in the question of

equal protection of the law. Therefore we drafted the statute

in this way, and think it covers everything that can be

thought of.

The last thing we do is to embody the suggestion

whlch Mr. Kuhns presented to the group in the last sentence:

"This Section shall not apply to any proceeding pending on

the effective date of this Act." That will be done in a great

many states, is automatically done in my state by the Constl-

tution of the state, but in order to avoid any question in

states where that might not be covered by existing constl-

tutional procedural statues, we have incorporated it.

MR. BARRETT: Mr. Chairman, the question I wanted

to ask was whether the "minimum period of residence" in lines

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- 0 and 9 had reference to the jurisdiction in which the decree

was entered.

MR. MERRILL: No, slr.

MR. BARRETT: Or ls a minimum of six weeks which

I understand ls the shortest perlod there ls.

MR. MERRILL: That was intended to grant the prlvi-

lege of repose as we understood the Committee of the Whole

to deslre, to any jurisdiglion in the country.

MR. MILLER: Mr. Chairman, I want to elaborate the

same question, and for this purpose: I wonder if you really

mean to say what you do, or whether you mean to say what I

think you do. You say "the minimum" requirement. It so

happens that in Iowa if you get a divorce against a non-

resident you have to live in the state for a year in good faith

and not for the purposes of obtaining a divorce only. But

if you are getting a divorce from a defendant who lives in

the state and who ls served by personal service, you only have

to be there, well', fifteen minutes.

If they are both residents of Iowa and the defendant

is served in the state, there is no period of residence

required.

Now, as I interpret this statute, and if I am cor-

rect in what I say about the minimum requirement in Iowa,

then your pro vision does not mean anything, because there ls

no minimum requirement in Iowa, and Iowa being one of the

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forty-eight states you would take the minimum in Iowa as it.

What I think you mean to say is "the minimum re-

quirement of any state for the purpose of obtaining a divorce

against a non-resident." If you actually do say that, well,

then, in Iowa lt ls a year.

MR. MERRI LL: I was not aware that any state had

such a provision as you credit Iowa with having.

MR. MILLER: You do not find it in the statutes;

you find it in the fact that it le not in the statute and

the court says, if they both live in Iowa--- Let me be

speciflc. Our statute says that the court of the county in

which either party ls a resident has jurisdiction. Then it

says that if the defendant is not served wlth notice in the -

county the petltion must recite that the plaintiff has 1lved

in the state a year and that the residence has been in good

faith and not for the purpose of obtaining a divorce only.

It is not what is in the statute that will cause

us trouble; it is what is not in the statute that will cause

us trouble. The statute makes no requirement for the resi-

dence in the state -lf they both live there.

CHAIRMAN BEERS: Judge Miller, a point of informa-

tion to explain that. If two people, say, living in New

York should move to Iowa--both of them--and establish a resl-

denae today, could one of them bring suit against the other

tomorrow?

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- MR. MILLER: Absolutely; absolutely. To make it

very definite, here is a case that actually was submitted. A

man living in Sioux City, Iowa, married a woman living in

Minneapolis. I shall not go into the details of the cause

of the divorce, but the cause of divorce occurred within two

weeks. She went down to some relatives of hers in Fayette

County and commenced an action for a dlvorce, and the court

had jurisdiction because he was a resldent of Iowa and wasEG=Z served with notice in Iowa. There was no requlrement as to

the length of the plaintiff's residende.

What I think you thought you were saying was "the

minimum requirement for residence of a plaintiff who is

obtaining a divorce from a non-resident."

MR. MERRI LL: We were, of course, havlng in mlnd

the general terms of the statutes whlch usually simply state

that the plaintiff must be a resident of the state for a

certain period of time. They do not usually put in that quall-

flcatlon that you make, that your Iowa court has put in by

judicial construction.

I think you have a point there which I think can

be covered if we add at the end of that sentence at the top

of page 2 "proceeding for divorce from the bonds of matrl-

mony from a non-resident defendant."

MR. MILLER: That is right. I think it is very lm-

portant.

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- MR. MERRILL: That certainly will take care of

any argument that could be based on your Iowa course of de-

cisions.

MR. MILLER: It really describes what I think you

are talking about.

MR. MERRILL: That ls true, except that we never

knew that any state had made that distinction*

1 CHAIRMAN BEERS: Mr. Reporter, I-might add one other

thlng. In Connecticut we have the provision that the girl

can always go home to Mother. If a Connecticut girl goes

and lives in Iowa for ten years, she can come back to her

Mother in Connecticut to remain and start her divorce case

the day she gets there, although her husband is still in

Iowa.

If the plaintiff was domiciled in the state at the

time of the marriage and has returned with the intention

of permanently remaining, there is no time limit required.

How is a thing like that going to fit into your Act. I am

not sure. You may be driven to putting in an arbitrary period

of months or weeks.

MR. MERRILL: That could be done. We played wlth

that.

MR. SMITH: Mr. Chairman, may I direct attention

to a double time limit in Missouri. We have the standard

provislon of one year's residence, and we have another

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- provision which says in substance that if one of the partles

at the time of institution of the suit--if the plaintiff

is a resident of the state, there is no time limit at all on

the length of residence.

If the act for which the complaint is made occurred

while he was a resident of the state, even if it was one

day before the suit was filed and one day after he established

his residence, he can still get the divorce. There is no reel-

denae requirement at all where the act for which the complaint

was made occurred while one of the parties was a resident

of the state.

MR. DALY: Mr. Chalrman, I move, in vlew of these

statements of counsel from dlfferent states, that you change

the words "a period at least equal to the mlnimum period of

residence required by any jurisdiction with the United

States as a condition for maintaining a proceeding for divorce

from the bonds of matrlmony, " to the words, " for a period of

81x weeks."

MR. MERRILL: Would you say "for a perlod of at

least six weeks"?

MR. DALY: "At least six weeks." That will also

take in the possibilities which have been suggested of some

of these states reducing the so-called residence to even less

than six weeks.

MR. BAILEY: Mr. Chairman, lt seems to me that

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Section 3 provides the period of repose in the state to which

the party has returned after the divorce, and if that be true,

it further seems to me that the test as to the period that the

party should have been resident in the jurisdiction in which

the dlvorce was obtained should be the minlmum period re-

quired by the laws of the state to which he has returned.

Fl.other words, you are dealing wlth the repose

in the state ln which a11 of the property and all of the

children and all of the interested parties are resident or

located.

Therefore, as a substitute for the motion that has

been made, I move that line 9 be changed by striking out

the words "any jurisdiction within the United States, " and

substituting therefor "the statutes of this state."

CHAIRMAN BEERS: We have two motions that have been

made. Mr. Daly has made a motion that the period of at

least six Weeks be inserted, and the motion by the gentleman

from North Carolina is to the effect that the period be

measured by the laws of the state where the case arises.

One of the motlons cannot very well be an amendment

to the other, so I belleve we should take Mr. Daly's motion

first, if it is seconded.

MR. MILLER: It need not be seconded.

MR. BAILEY: Mr. Chairman, I ride to a point of

parliamentary inquiry. I made mine as a substitute motion.

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I think a substitute motion takes priority, if mine has a

second.

MR. MILLER: The motion to substithte takes priority.

CHAIRMAN BEERS: I sustain that point of order.

The question is on the motion to substitute the

second motion for the first. I take it that a vote to do so

would not itself pass the motion. We would have to take lt up

again. So w111 you remark upon the motion to substitute a

motion for the period provided by the laws of the state in

place of the six weeks proposed by Mr. Daly?

MR. SCHNADER: Mr. Chairman, I think Mr. Daly's

motion would kill the section. The purpose of the section

is to provide that unless an action to contest a foreign di-

vorce is brought within a certain period of years in this

state, such action cannot. be brought.

Now, if someone goes to Nevada and gets a divorce

after six weeks' residence, and the laws of Pennsylvania, re-

quire one year's residence, there will be no statute of liml-

tations at all, so I think it is really not a substitute

motion, it is a motion to strike the section out of the Act.

MR. DINKELSPIEL: Mr. Chairman, speaking along that

line, unfortunately I was not here the other evening when

the question of policy for the committee was enunciated, but

I have spoken to my co-Commissioners from California, and

we feel that any period of repose in this statute t, jould be

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j 104

Improper. We feel very strongly that judgments of other

types that affect property rights as to California residents,

both in and out of California, are subject to attack under

certain proper circumstances, and that in the case of dir, orce

which we are trying from the social standpoint to make a

little more difficult to obtain, and the intranslt divorce

and the tourist camp divorce, etc., by giving these people

an opportunity after three, four or seven years to say,

"Well, even though the entire proceeding was a fraud, and the

so-called residence was purely fictltious, and all the rest

of it, we are now protected by the very law that was supposed

to make lt dlfficult for us to get such a divorce. "

I am making that statement very definitely so the

Conference w111 know that at least as far as the present mem-

bers of the Commission are concerned, if this Act were to

pass in its present form we would not urge its passage in

California.

CHAIRMAN BEERS: The question of pollcy was de-

bated at an earlier meeting of the Committee of the Whole and

the committee was instructed to draft something along the

line of Section 3. That of course does not settle that ques-

tion; that ls, there will be an opportunity to vote again

on the approval of the Section. But for the purpose of the

pending motion, are there further remarks on the motion to

substltute?

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MR. SIMMONS: It occurs to me that we might get

around Judge Miller's objection by inserting the word

"statutory" in line 9. That would read as follows, starting

with line 7, "present immediately prior to the commencement

of the proceeding for a period at least equal to the statutory

minimum period of residence required." Insert the word.

"statutory" there.

CHAIRMAN BEERS: We cannot pile one motion upon the

other. That is beyond my parliamentary capabilities.

MR. SIMMONS: I am not trying to present a motion,

I am presenting a suggestion which would defeat Mr. Daly's

motlon.

MR. MILLER: I do not think lt would.

MR. MERRI LL: Judge Miller thinks it would. not. I

think it is the fact that it le an interpretation of a statute,

and therefore that would be a statutory minimum.

MR. MILLER: That is right.

MR. BAILEY: Mr. Chairman, Mr. Schander said that

the motlon I made would destroy the Sectlon. He has, of

course, longer experience in this Commission and in the law

than I have, I grant, but as I read the Section the action

to attack the divorce granted in another jurisdiction can be

brought in North Carolina, say, within seven years lf "seven

years" is substituted in the bracketed section, "provided

such decree was obtained in a jurisdiction, " etc., and the

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party was present in that other jurisdiction for the perlod

of time required by the law of North Carolina for a man to be

a resident of the State of New York to obtain a divorce from

the bonds of iriatrimony.

CHAI RMAN BEERS: One question, Mr. Bailey. Does

North Carolina have a requirement for residence of substantial

length--a year or more?

MR. BAI LEY: Yes, sir.

CHAIRMAN BEERS: If a North Carolina resident went

to Nevada and got a divorce after being physically and con-

tlnuously present there 81x weeks, and. then came back to

North Carolina, under your proposed wor ding woul d thi s statute

of repose ever validate that divorce?

MR. BAILEY: I think it would, but of course he would

have to have stayed there longer than the requlrement in

Nevada.

What I am arguing is, since it is the question of pro-

tecting the interests of the people who are in North Carollna,

then lf he gets a divorce out there he should at least stay

long enough to meet the requirements in North Carolina.

CHAIRMAN BEERS: Mr. Bailey, I did not intend

from the Chair to debate any question of policy. I wanted to

ask if you thought, under your suggested wording, that if he

only stayed six weeks and came back, then would Section 3 ever

validate that divorce?

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MR. BAI LEY: I doubt that it would.

CHAI RMAN BEERS: That ls, I think, what Mr. Schnader

le attempting to bring out.

MR. SCHNADER: Mr. Chalrman, I object to the use

o f the phrase "validate this divorce. "

CHAIRMAN BEERS: I withdraw that.

MR. BAI LEY: I would like to ask why.

MR. SCHNADER: That ls not the purpose of the Sec-

tion. The purpose of the Section as drawn is to put an end

to litigation and settle questions of legitimacy and property

rights, and unless persons who have interests which are ad-

versely affected by the divorce come into court within a

certaln number of years, it is my theory that they ought to

be estopped later to question the validity of the divorce.

It is just as invalid as ever, but the courts of the state

are closed on the ground that the persons having an adverse

interest have not moved in time.

CHAIRMAN BEERS: The question is on the motion to

substitute. As many as are in favor of substituting Mr.

Bailey's motlon for Mr. Daly's motion will say "aye"; as many

as are opposed will say lino." The noes have it.

We are now on Mr. Daly's motion to substltute the

specific time of six weeks instead of the language in line 7

. and following. Will you remark further on that?

MR. ALLEN: I do-not understand where that is to

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log

be inserted.

CHAIRMAN BEERS: As the Chair understands it it is

this: "provided such decree was obtained in a jurisdiction

in which the plaintiff was actually and continuously present

Immediately prior to the commencement of the proceedlng. "

Then the rest is omitted until you get to "the bonds of

matrimony."

MR. MILLER: I think we inserted the words "at

least slx weeks" in line 8 after "period. " That is what

I understood Mr. Daly'a motion to be.

MR. DALY: I think it is immaterial.

CHAIRMAN BEERS: The commlttee w111 see that it gets

into the right place. The main thing ls, is it going to be

six weeks or some other period? Will you remark further

on that motion?

[The questlon was called for.]

CHAIRMAN BEERS: As many as are in favor of

substituting "six weeks" to indicate the period of actual

and continuous presence in the state where the divorce is

granted--"at least slx weeks"-- will say waye"; as many as are

opposed say "noy The ayes have it.

Now then, Mr. Merrill, would you be good enough

to read Section 3 as it now is with the six weeks substituted?

MR. MERRILL: Section 3. The validity of a

decree of divorce from the bonds of matrlmony granted4

109 ·

-- by the courts of another jurisdiction shall not

be subject to attack, directly, indirectly, or

collaterally in any civil or criminal proceeding

in the courts of this stats after the expiration

of C ] years from the date when such decree

became absolute; provided, such decree was obtained

in a jurisdiction in which the plaintiff was actual-

ly and continuously present immediately prior to

the commencement of the proceeding for a perlod of

at least six weeks.

MR. MILLER: Then the last sentence.

MR. MERRILL: Yes. This Section shall not

apply to any proceeding pdnding on the effective

date of thls Act.

MR. STANLEY: Mr. Chairman, I am still a little con-

fused by what le the effect of this. It looks to me as lf

the committee wants to say--and I may be wrong--that if you

have a divorc6 obtained, we will say, in a state where six

weeks' residence is essential to confer jurisdiction upon

the court, to all intents and purposes as far as this par-

tlcular state is concerned that decree, standing alone without

attack, represents as far as that state is concerned a valid

decree of divorce, after the period has been complied; with,

j and in all probability, as in most divorces, it is the

recitations contained in the decree affirming the statutory

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- residence for the ferlod necessary to obtain the decree.

That being true, should not that be maintained in

< this? That is to say, suppose the state, as a basis for ob-

talningthisdivorce, hassixmonthsorhasa year, thls

divorce that ls being attacked in this other state that

you are trying to put into a state of repose. That le what

I am talking about. It looks to me as lf all your six

weeks is doing here, or le intended to do, is to cut off

the opportunity for these correspondence affairs and mall

order divorces that are purely and strictly fraudulent.

But do we not want here to continue to maintain

the actual recited jurisdiction of the state where this de-

cree was obtained? If it is in Kansas, it is a year's resi-

dence; if it is in Nevada, it is six weeks, or whatever the

case may be.

Therefore it seems to me that some appropriate

phrasing should be put in here. I think Mr. Daly's motion

of at least slx weeks puts the block on your correspondents

completely, but certainly unless this divorce in Nevada

is on the basis of the statutory requirements of Nevada and

is so shown on the divorce, we go a little far when we

leave that situation wide open, it seems to me.

CHAIRMAN BEERS: Mr. Merrill, have you a suggestion

in regard to that?

MR. MERRILL: I do. I think Mr. Stanley has a point

111'

-- that ls well taken, and lt can be taken care of lf we revert

to the language as printed before the change that has been

suggested: "Provided, such decree was obtained in a jurlsdic-

tion in which the plaintiff was actually and continuously

: present 1mmedlately prior to the commencement of the pro-

ceeding, " here we start our new language, "for the periodU

required by the laws of that jurisdiction.4-„

0 MR. STANLEY: That is lt.3

MR. MERRILL: 1' --R as a condition for maintaining

a proceedlng for dlvorce from the bonds of matrlmony, not

in any case less than six weeks."

CHAIRMAN BEERS: Mr. Daly, do you wlsh to remark

on that?

MR. DALY: Yes. It seems to me that we are golng

to mix up two things. This Section 3, just as Mr. Schnader

pointed out, is not designed to validate an invalid divorce;

it is designed only to put a time limit beyond which you are

not allowed to come in and contest or to show that the

divorce is invalid in a clvll or criminal proceeding in the

courts.

The divorce may still be invalid for many other

purposes, and the invalidity of it may still have plenty

of legal consequences. If you attempt to include any refer-

ence to recitals or to incorporate directly or indirectly

by reference any provisions of residence whlchvary widely--

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1n Massachusetts, for example, they vary according to

whether the marriage was in MaBsachusetts, whether they are

living together as man and wife, ' whether the offense took

place in Massachusetts--you are again going to be mixed up

with all these local distinctions.

Having in mind that this is nothing more nor less

than a statute of repose, I think the simpler you keep it

the better, and that the statute as written with the arbitrary

tlme of six weeks, that being the smallest perlod allowed

in any state in the United States, answers just the purpose

you have got without mixing anything else with it.

I think the situation is intended to meet this case,

where people go up and get a divorce in Nevada right away

by collusion. They adjust thelr 1lves to lt. Ten years

after one is dissatisfied and comes in and says, "That

divorce was no good anyway, and I want it all upset. I want

everything started all over." And if it is the wife, "I

want support from now on." That is what ls intended to be

stopped.

I am afraid that if you introduce anything except

an arbitrary period of six weeks--or, lf you want, eight

weeks or anything else; six weeks is simply taken from Nevada--

you are going to get into complications not served by

< this statute.

CHAIRMAN BEERS: Is it your thought that if the

- divorce took place in Iowa within a period of one year, and

the man was only there six weeks in violation of the Iowa

laws where he got the divorce, that still, after the pre-

scribed period of years--three, five, seven, or whatever it

le--the divorce should not be questioned in Massachusetts.

MR. DALY: Absolutely. And I think that is the

precise purpose for which this is drawn.

CHAIRMAN BEERS: The question is on Mr. Daly's mo-

tion. As many as are in favor of the language which substi-

tutes a flat period "at least six weeks" in place of any

other language will say "aye"; as many as are opposed "no."

The Chalr ls in doubt. As many as are in favor of

substituting the flat six weeks as a minimum will raise

their hands. I count 26. As many as are opposed will raise

thelr hands. Nlne. The motion is carried.

We cannot complete the final consideration of the

Act this morning. Have you a motion, Mr. Merrill?

MR. MERRILL: Mr. Chairman, I move that the com-

mlttee rlse, report progress, and beg leave to sit again this

afternoon at the time to be provided.

CHAIRMAN BEERS: As many as are in favor of the

motion will say "aye"; those opposed "no." It is carried.

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114.

Proceedlngs in Committee of the Whole

Friday Afternoon, September 19, 1947

An Act Concerning the Recognition of a Divorce

Obtained in Another Jurisdiction

And to Make Uniform the Law with Reference Thereto

Mr. William L. Beers, of Connecticut, acting as

Chairman of the Committee of the Whole; Mr. Maurice H.

Merrill, of Oklahoma, Chairman of the Committee on the pro-

posed Act.

CHAIRMAN BEERS: The Committee of the Whole will

come to order, and the Chairman of the committee, Mr. Merrill,

will proceed with the discussion from where we left off.

MR. WRIGHT: Mr. Chairman, in our seal to cut off

or to give sanction to mail order divorces as expressed by

Mr. Llewellyn, I feel we have fallen into grievous error.

As redrafted, Section 3 embodies two entlrely dif-

ferent thoughts which cannot be composed in one sentence. In

the first we say that repose shall exist after the running

of a period of time to be agreed on; provided, however, there

le an actual residence of six weeks.

I say, Mr. Chairman, that repose which depends 1upon the establishment of a fact in the manner that this fact

in residence would be proved, is no repose at all. For

example, an erring spouse flies to Nevada (it is always a bad

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state, I never use Arkansas [laughter]) and obtains a divorce.

Thirty-five years later, to use an extreme example, Mama,

finding conditions changed, deems it desirable to upset the

dlvorce. She comes in and says, "I saw Papa back in New York

during the period he was supposed to be in Nevada, " and

1 1raises the fact question as to whether there has been compli-

ance with the residential provisions.

If we intend to have repose, I say it should be by

the passage of a fixed, unequivocal period of time and not

made dependent upon oral testimony.

In the first place, a fact issue can be made by the

innocent spouse by the simple statement, but worse than that,

witnesses who are in a position to establish or disestablish

are dead or removed many years later.

I have talked with Mr. Llewellyn about this, and he

has given me his blanket power of attorney to tell the Com-

mittee of the Whole that he has withdrawn entirely his objec-

tion.

MR. STANLEY: As to mail order divorces? [Laughter]

MR. WRIGHT: As to mall order dlworces--they are

the words the President put in my mouth, they are not mine.

He withdraws his objection to the statute as originally

* phrased, in the recognition that the language to. cure the

vice is worse than the vice, and he concurs in the motion I

am now making to strike all of the language in Section 3

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- beginning in line 5 immediately following the semicolon, so

that the Act would simply be one of repose.

[The motion was seconded. ]

[The question was called for.]

MR. MERRILL.: May I inquire, Mr. Wright, do you

wish to include the last sentence of the Section?

MR. WRIGHT: Thank you. I did not mean to strike it,

Strlke all of the first sentence beginning with "provided"

in line 5 to the end of the sentence.

CHAIRMAN BEERS: Will you remark upon the motion?

MR. MERRILL: Mr. Chairman, the committee will concur.

CHA IRMAN BEERS: Ae this has been bandied about so

much, I think it might be just as well to have a vote on

it, even if the committee does concur. As many as are in favor

of Mr. Wright's motion will signify by saying "aye"; as many

as are opposed "no." The ayes seem to have lt, the ayes have

it.

Will you proceed to Section 4?

MR. IMERRILL: We have not perhaps approved Section 3

as yet.

CHAIRMAN BEERS: Let's get rid of 4 and 5; that

won't take you long.

MR. BROSSARD: Mr. Chairman, I move a reconsideration

of that vote for fear Mr. Llewellyn might come in later and

give us a new setup. [Laughter. 1

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117.

MR. MERRILL: That is not serious.

CHAIRMAN BEERS: We were continuing with Section 4

at the time you made the motion, Mr. Brossard.

MR. BROSSARD: I withdraw the motion.

MR. MERRILL: Sections 4, 5 and 6 are the ordinary

formal Sections. Also, 7.

Section 4. This Act shall be so interpreted

and construed as to effectuate its general purpose

to make unlform the law of those states whlch enact

it.

Section 5. This Act may be cited as the Uni-

form Divorce Recognition Act.

Section 6. All Acts or parts of Acts which

are inconsistent with provisions of this Act are

hereby repealed.

Sectlon 7. Thls Act shall take effect

for reasons we gave in the note to the flrst mlmeographed

sheet, namely, that a great many if not the majority of juris-

dictions have no constitutional provisions to take care

of thls.

CHAIRMAN BEERS: If there are no comments on 4,

5, 6 or 7, we revert to the question of the approval of the

entire Act as recently amended.

MR. McLAREN: Mr. Chairman, may I ask a question?

I was not certain whether the motion to strike did or did not

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' 110.

include the last sentence.

CHAIRMAN BEERS: I understand that the motion to

' strike struck out the words in line 5 beginning with "pro-

vided" down through the end of the sentence, but the second

sentence on lines 10 and 11 is still in.

Therefore we have the mimeographed copy handed to

you today, Sections 1 and 2 unchanged, Section 3 changed

as this house has just changed lt. Now we are on the question

of the approvel of the Act as a whole.

MR. SCHNADER: Mr. Chairman, I have only one ques-

tion, that is, whether the committee is satisfied with the

name of the Act. I think it is misleading. It would certainly

be with us if we passed an Act referring, even in the title,

to the recognition of divorces of other jurisdictions.

As far as I can see the Act has nothing to do

with that now. It is a procedural and evidence Act.

MR. MERRILL: Section 1 18 a substantive provision.

MR. SCHNADER: That is non-recognition.

MR. MERRILL: It relates to recognition, I should

say.

MR. SCHNADER: Why not call it the Foreign Divorce

Act?

MR. MERRILL: The title Foreign Divorce Act which

Mr. Schnader suggests would, of course, suggest a much wider

scope than we have here. That would be my only reaction to

--- it. I think the committee is satisfied. Personally, I am

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- satisfied.

MR. MILLER: In Section 5 you have the short title.

MR. MERRILL: Yes. That is Mr. Schnader's objection,

the phrasing of the title.

CHAIRMAN BEERS: Is there a motion with respect to

the title? If not, we will proceed with the discussion of the

approval of the Act as a whole.

MR. DINKELSPIEL: Mr. Chairman, if I am in order I

should like to address myself to the remaining provisions of

Section 3.

As I understand the original intent of the Confer-

ence in undertaking the study of this subject, it was from

a social viewpoint in order to make it more difficult for

people to jump state lines and obtain their divorces, and the

method of attack set forth--that is, the method of attack

in an endeavor to make it more difficult and to create ob-

stacles to people, a married couple in one state, to jump the

line and go into another stat e, is taken care of ln Sectlons

1 and 2.

Then you come along and you change the presently

existing law which has acted as a deterrent (I speak from

personal experience in our office, and I am sure that experl-

ence can be multiplied by everyone present) -- you come along

and you say, "Well, even if you have jumped the state line

and you have taken chances under Sections 1 and 2, since

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- we have made it more difficult for you now in Sections 1 and

2 to get your divorce and come back into this state, you will

have to have that divorce recognized--notwithstanding that

fact, you will be given a little bonus to be good about it.

We will give you Section 3 which says that after three, four

or five years, whatever the statutory enactment might be,

everything le going to be fine, and nobody can attack it."

It seems to me that today judgments of any kind or

character obtained in one state where there is lack of jurls-

diction or where there 18 a fatal defect as to the validity

of the judgment, can be attacked dhdireb~tly and sometlmes

directly in an action instituted on that judgment in another

state or in a collateral proceeding.

I see no reason, frankly, for giving people who are

creating a social evil or are the object of what we are trying

to correct in Sections 1 and 2 the benefit of what Section 3

will definitely give them. If we are going to do that, why

not go beyond the scope of Section 3 as now set forth in the

Act and say that it applies to all judgments--to any and all

judgments?

You cannot attack any judgment of another state

after four or five years. The argument has been made that the

legitimacy of children is involved. After all, there is an

old saying that if you make your bed you have to lie in it,

and if these people in the face of Sections 1 and 2 and the

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- condition and status of their present law, go into another

state to obtain a divorce and then return, remarry and have

children, that is one of the chances they take. That le one

of the things that will deter them from doing the very thing

we are seeking to prevent in Sections 1 and 2.

But with Section 3 and with a reasonable limitation

period--say a five-year limitation period which is not too

long or too short--they will gamble, they will take a chance

notwithstanding the provisions of 1 and 2. They will come

back and keep their fingers crossed for five years, and you

will get the same result; you will have the same result, only

possibly multiplied, that you have in existence today and

whlc h you are seeklng to stop.

I feel quite strongly about it, and feel this Con-

ference should give it every consideration before adopting

as a matter of policy where they are laying this Act before

the publle and the legislatures of the several states, in

. an Act we might otherwise be proud of, Section 3 which in

effect nullifies and emasculates the provisions of 1 and 2.

CHAIRMAN BEERS: Mr. Dinkelspiel, you seem to be a

mind reader, because the committee has handed me a written

memorandum in which the committee states that the two ob-

jectives seem impossible to be combined in the same measure,

and the committee recommends striking Sedtion 3 and recommit-

ting to the committee for the preparation of a statute of

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repose, not limited to this narrow purpose of the transient

divorces but to consider generally the preparation of a statute

of repose relating to divorce decrees generally.

The purpose of the committeeria to urge the approval

of the Act containing Sections 1 and 2, and then come back

next year with a statute of repose.

So the motion made by the committee, which I take

it is the same as yours, Mr. Dinkelspiel, 18 that Section 3

be stricken and that the subject of a statute of repose be

recommitted to the committee for the preparation of a separate

Act. In that case, of course, a state could take one or

both of the Acts, as it seemed wise.

Would there be any further discussion on that? The

motion le to strike Section 3 but to recommit te the committee

the preparation of a statute of repose relating to divorces.

MR. ALLEN: Mr. Cha 1rman, as I understand the. motion

to be put it amounts to an approval, a definite approval,

of Sections 1 and 2.

CHAIRMAN BEERS: There would have to be a separate

approval or vote to approve 1 and 2; that is, if this motion

should pass, Section 3 will be out for the time being--that

is, will be out altogether, and the committee will go back

to work on a statute of repose. But we will have further dis-

cussion and a separate vote on the approval of the Act and

including Sections 1 and 2.

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- Are you ready for the question?

MR. LANE: Mr. Chairman, I remember old Professor

Miner, of Virginia, used to tell us that a domicil was a thing

of intent, of your mind. You have you' domicll of origin

and your domicil of choice.

Should we not put in there a voting domicil? I can

say now I am domiciled in Connecticut.

CHAIRMAN BEERS: You wouldn't get away with it, Mr.

Lane. [Laughter]

MR. LANE: I believe most of our personal property,

we have our old law where a man starts out from New York to

go to Wyoming ---

MR. T MERRILL: Mr. Chairman, I rise to a point of

order. What does "domicil" have to do with the motion before

the house?

CHAIRMAN BEERS: Mr. Lane?

MR. LANE: Oh, it wasn't important.

CHAIRMAN BEERS: Mr. Lane, the motion relates toZ

I. striking Section 3. When we come back to the approval of 1

J and 2 your remarks on the subject of domicil will be entirely

in order.

MR. SCHNADER: Mr. Chairman, I just don't get what

the committee is driving at. We had this all out yesterday

morning at great length. The sense of the Conference was

taken as favoring a combination of these two things. There is

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no rush to get Sections 1 and 2 finally approved this year.

There are only a handful of legislatures that will meet next

year, and 1949 is the first legislative year.

If any part of this Act is to go over, why do we

'not let the whole thing go over and let the commlttee bring

in two Acts which dovetail together, ' and give us what the

Conference voted on affirmatively yesterday.

MR. BARRETT: Mr. Chairman, a point of order.

Is the committee's position to strike Section 3

equivalent to an approval of Sections 1 and 2?

CHAIRMAN BEERS: No. If the motion should pass, Sec-

tion 3 will be out, and then we will take a separate vote

on the approval of Sections 1 and 2.

MR. BARRETT: Then I should like to offer a substi-

tute motion for the committeet s motion, that the entire mat-

ter be recommitted to the committee, and that it be asked

to draft an Act approaching the problem of the recognition

of divorces from the positive viewpoint rather than the

negative viewpoint. That ls, that the draft set up some

statutory guide by which we may determine when a decree of di-

vorce ls entltled to recognltion rather than the present draft

which merely presents circumstances from which it is inferrable

that it is not entitled to recognition.

CHAIRMAN BEERS: Is there further discussiony If

not, the motion is to recommit the entire matter and that no

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125.

- final action on any part of it be taken this year. The ques-

tion will be on the substitution now. Will you remark upon

that? Are you ready for the question?

MR. LADD: Mr. Chairman, I think that it would be

a great mistake to recommit the entire Act. I think that is

true because I do not think there can be done constitutionally

what Mr. Barrett has referred to, and this was discussed

fully and at length in this first session, including a study

of the cases and the problem -- fully.

I think that the entire matter should not be recom-

mitted to the committee, and if we do so, they get another

committee because that committee has given this matter as

thorough and as careful a study as can be given in view of

existing conditions. They have come out with Sections 1 and

2 which, whether you like it or not, le about the maximum

of what can be done in any way wlth any amount of study

this body may put upon lt, unless they propose something

that we know the states will not adopt whlch we are really

hitting at, and require domicll for the period of one year

prior to obtaining a divorce in those states.

The social conditions tied up with other state

aspects of this problem are what either call for a Federal

law or this as the next-best second, and I believe no amd)unt

of effort will change much the product that has been presented.

I think we ought to decide it one way or another.

I am in favor of striking Section 3 and recommitting it as an

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126.

independent matter. But upon Sections 1 and 2 I think we

know as much now as we ever w111 know, and that we ought to

take some actlon on them one way or the other, and then

close lt.

MR. McLAREN: Mr. Chairman, I regret feeling that I

should speak again upon this question. I am opposed to the

dropping of Section 3 for two reasons.

CHAIRMAN BEERS: That is not the motion before the

house. The motion now is to substitute Mr. Barrett's motion

to recommit the whole thing.

MR. McLAREN: I'm sorry.

ME. HOWARD: If this le not out of order procedur-

ally I should like to suggest we do one thlng at a time'. If

I may, I should like to offer as a substitute for the last

motion that we stfike. 3 Section 3 of this Act.

CHAIRMAN BEERS: That is the original motion for

which the substitute is offered.

MR. HOWARD: The original motion was more than that;

it provided for a recommital to bring out two Acts.

CHAIRMAN BEERS: I rule we have got to put Mr.

Barretf s motion to substitute first.

MR. PRYOR: I move as a substitute motion that we

bracket Section 3.

CHAIRMAN BEERS: That is out of order, I'm sorry to

say. The question is upon Mr. Barrett' s motion to

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- substitute, which is to substitute his motion to recommlt the

whole subjedt to the committee.

MR. JAMES: With specific instructions to bring in

a positive Act.

CHAIRMAN BEERS: I do not think it is in order to

make the motion to recommit as detailed as that. I rule

the last part of Mr. Barrett's motion out of order. I think

the only part that is effective is the motion to recommit.

The committee will have to do its own study if recommitted.

As many as are in favor of substituting Mr. Barrettls

motion will indicate by saying "aye"; as many as are opposed,

" no." The noes have it and the motion to substitute is lost.

We are now upon the motion to strike Section 3 and

recommit the subject of Sectlon 3 to the committee.

MR. PYROR: Mr. Chairman, I now move as a substi-

tute motion that we bracket Section 3.

[The motion was seconded.]

MR. DINKELSPIEL: I should like to speak to the

latest substitute motion. I make the same argument that I

made in the original wording of Section 3, namely, if we in-

sert in any draft that goes out of this Conference, in

bracketed form or otherwise, the benefits that Section 3 in my

mind-will connote and mean, I think that the publicity on

any action taken by this Conference or this Committee of the

Whole would be extremely disadvantageous to us.

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- Furthermore, I think it would be a proper gulde

for legislators or otherwise. I think that in view of the

recommendation of the committee who have spent a number of

years on the study of this matter -- and most of us here will

recall the first draft presented and the brief that went

wlth it, a complete, detailed outline--we should give some

credence to the Judgment of the committee.

I for one would be very much against the substitute

motion.

CHAIRMAN BEERS: The question is on the substitute

motion.

MR. MERRILL: Mr. Chairman, may I speak for the

committee? I should like to say for the committee, particu-

larly with reference to Mr. Schnader's suggestion about the

statute of repose, the committee has the feeling after having

dealt with this and after having seen the various attempts

that have been made to workoout. something that.would be

satisfactory, that the problem of repose and the conditions

whlch have to be met in any statute of repose are so complex

we could not work them out within the next year.

We would expect it would take two or three years

to produce an adequate draft on that subject, and in the

~ meantime the problem of protecting the states against their

runaway domiciliarles will be there, and the pressure will

be building up for Federal intervention which may conceivably

take the form of a statute which will completely override

states' rights. We feel it is desirable, therefore, to put

the machinery in motion for dealing with this particular

problem.

MR. MacCHESNEY: Mr. Chairman, I am unimpressed

by the statement of the Chairman as to the undeslrability

of the proposed action. I believe that having considered

Section 3 as a statute of repose they are in a position,

with their study and intelligence, to act much more rapidly

than is anticipated.

I am in complete agreement with Mr. Dinkelspiel,

both with what he said the first time he spoke and when he

spoke the second tlme. It seems to me that this Act going

out with Sections 1 and 2 will go as far as we can go and

will stem the tendency toward Federal legislation. On the

other hand, I agree with Mr. Ladd that Sections 1 and 2

are needed. It has been thoroughly discussed and I think

we should try to approve lt. The effect of putting Sectlon 3

in brackets would be to prevent its approval possibly at

this conference, because many people are opposed to it and

certainly would raise a great many questions with the public

and with the leglslatures.

I am in favor of the motion of striking Section, 3

and recommitting it to the committee with the suggestlon that

they study the whole question of the statute of repose, to

be followed by a motion to approve the Act with Sections 1

and 2 in it.

CHAIRMAN BEERS: The question is on the proposal

to substitute bracketing in place of striking and recommitting,

As many as are in favor of leaving Section 3 in in bracketed

form signify by saying "aye"; those opposed "no." The noes

have it.

The question is upon the motion to strike Section

3 and recommit the subject of Section 3 to the committee. As

many as favor will indicate by saying "aye "; as many as are

opposed will indicate by saying "no." The ayes have.

Section 3 is therefore out of the draft, and the

subject matter has been recommitted to the Section.

Now the question is upon the approval of the Act

as it remains, and the committee makes this motion, that the

Commlttee of the Whole recommend the following vote to the

Conference: Voted that the Uniform Divorce.Jurlsdictlbn

Act be approved, but that the Act be promulgated only upon

resolution by the Executive Committee.

I am informed that the reason for delaying the

immediate promulgation is the possibility of the effect of

a pending case in the Supreme Court of the United States,

, so that during the winter the Executive Committee would have

a chance to hold back the promulgation if that seemed wlse.

MR. MILLER: Mr. Chalrman, I have one questlon on

131,

that. How about the approval of the Bar Association?

CHAIRMAN BEERS: It is contemplated that the Con-

ference will approve it. It will be submitted to the Bar

Association but will not be set out for redommendation to be

adopted by the states until the Executive Committee so re-

solves.

MR. STANLEY: I would like to hear comment from

Mr. Kuhns on that.

MR. KUHNS: Mr. Chairman, I have two questions.

One is this: I was interrupted, and did not hear the answer

to the question with regard to the name of the Act. How

does that stand? Mr. Beers said Divorce Jurisdiction Act.

MR. MERRILL: It le Divorce Recognition Act.

MR. KUHNS: On the matter of asking the Bar Asso-

ciation to approve the Act but not to promulgat e it, I want

to suggest this, that if you want a vote on this Act and

vote by states, would it not be better that the understanding

be that we vote by states and then perhaps allow the Execu-

tive Conimittee to refer the Act for approval to the American

Bar Association at some later date?

I rather dislike the suggestion of urglng upon the

House of Delegates of the American Bar Association approval

of an Act with the explanation that we do not intend to pro-

mulgate it. I think it would be better policy to do that

a little later. We can give it to them for study, but not

-- ask for action.

CHAIRMAN BEERS: I rule the only question before

the Committee of the Whole ls approval of the Ast. Tomorrow

when it comes up in the Conference, any question of promul-

gation will be taken up by the Conference as distinct from

the Committee of the Whole.

The motion is that the Committee of the Whole recom-

mend to the Conference that the Uniform Divorce Recognition

Act be approved. Is there further discussion?

MR. WRIGHT: Mr. Chairman, a point of order.

MR. SIMMONS: Mr. Chairman, Section 3, then, is

out, and Section 4 will be Section 3, and you will change

the numbers?

MR. MERRILL: Yes.

MR. WRIGHT: Mr. Chairman, is the approval of the

Conference in order with the prior direction that Section 3

be recommitted to the committee?

CHAIRMAN BEERS: Section 3 has been stricken from

this draft, and the approval by the Committee of the Whole

will be on what is left. The recommiting of the subject of

Section 3 is an entirely separate matter. That is just for

another Act some day.

MR. WRI GHT: I did not so understand the motion.

I want the ruling of the Chair on that. My understanding

of the motion was that Section 3 was being recommitted to

the committee.

CHAIRMAN BEERS: The question I put was that

Section 3 be stricken and that the subject matter of Section 3

< be recommitted to the committee for further action.

MR. WRIGHT: I want to appeal from the ruling of

the Chair because that was not my understanding.

CHAIRMAN BEERS: I will put it again if there is

any question about it. The question is, shall Section 3 be

stricken from the draft and the subject matter of 3 be

recommitted to the committee for the possibility of another

Act.

As many asi Are in favor in dlcate by saying "aye";

those opposed "no." It is carried.

Therefore we have left before us for consideratlon

by this Committee of the Whole the Act as mlmeographed with

the exception of Section 3 which has gone out, and 4, 5, 6

and 7 each go up one number. As many as favor approval

of the Act 1ndlcate by saying "aye"; as many as are opposed

indicate by saying "no." It seems to me the ayes have it.

I declare that the ayes do have it. It is carried.

That completes the business before the Commit tee

of the Whole.

MR. KUHNS: Mr. Chairman, while we are still in

J the Committee of the Whole, may I raise one question? I

< discussed it briefly with Mr. Stanley and Mr. Schnader.

I think we want to avoid any misunderstanding about

this. Under the Constitution of the Conference it is neces-

sary before an Act is voted on by states, for a draft in

the form in which it is finally subm lt ted to the Converence

to be on the desks of the Commissioners one full session be-

fore we vote. We can have thls draft wlth Sections 1 and

2 and the numbers changed, remimeographed before eight o'clock

tonight if it is necessary to do that, and have a session

in order strictly to comply with our constitutional require-

ments.

I thought we had better raise that now rather than

have someone raise it tomorrow morning when we vote on the

Act. It may be that it can be ruled that this Act, with

simply the change in the numbers of the Sections, as we

have it on our table this afternoon is a sufficient draft.

MR. MILLER: Is it proper to suggest that enough

of the Commissioners change their draft to conform, so the

Chair can rule that it is on our desks?

CHAIRMAN BEERS: As many as are in favor of consld-

ering that this Act which le complete and unchanged except

for the elimination of Section 3, and the renumbering of

4, 5, 6 and 7, is the complete copy--as many as are in favor

of adopting that as a complete copy of the Act---

MR. SCHNADER: If you are trying to avoid a techni-

cal objection tomorrow morning, I call your attention to the

fact that that motion will not do lt.

CHAIRMAN BEERS: I don't believe it will, either.

MR. SCHNADER: We can waive that part of Section g

about which you are talking in the same way that we passed

that resolution this morning.

CHAIRMAN BEERS: Should it be waived by the Com-

mittee of the Whole or by the Conference?

MR. MERRILL: The Conference has to do it.

CHAIRMAN BEERS: Therefore there is no further

business before the Committee of the Whole. A motion to

adjourn is ln order.

MR. MERRILL: Mr. Chairman, I move that the Com-

mittee of the Whole rise, report the approval of the Uniform

Divorce Recognition Act, having considered the same Section

by Section, line by line, and recommend that it be adopted

by the Conference.

MR. MILLER: I second lt.

CHAIRMAN BEERS: Are there any remarks? As many

as are in favor thereof will signify by saying "aye"T those

opposed will signify by saying "no." The ayes have lt. The

motion le carried.

Case records

Open case page

Docket: 2023-0585

Date	Record Text	Type	Party	PDF
June 24, 2025	Wagner v. Chislett	Opinion	Supreme Court	Pre-Reporter
January 14, 2025	Carol Wagner v. Sally Chislett et al.	Oral argument text	Carol Wagner; Sally Chislett & a.
January 14, 2025	Jan 14 2025	Supreme Court oral argument calendar	-	PDF
May 28, 2024	Petitioner-Appellant v. Sally Chislett Et Al. Current page	Brief		PDF
May 6, 2024	Petitioner-Appellant v. Estate of John Chislett, Et. Al	Brief	ESTATE OF JOHN CHISLETT	PDF
March 6, 2024	Petitioner-Appellant v. Sally Chislett Et Al.	Brief		PDF
December 31, 2023	2023 Fourth Quarterly Status Report	Supreme Court case status list	-	PDF

TABLE OF CONTENTS

Table of Cases

TABLE OF CASES

ARGUMENT

I. RESPONDENTS IGNORE THAT THE LEGISLATIVE INTENT BEHIND RSA 459:1 WAS TO ELIMINATE ESTOPPEL-LIKE ARGUMENTS IN FAVOR OF A PROHIBITED DIVORCE.

II. RESPONDENTS RELY ON A PRESUMPTION OF PREJUDICE, RATHER THAN EVIDENCE.

III. RESPONDENTS IGNORE THAT THE REASONABLENESS OF CAROL’S ACTIONS PRESENTS A FACTUAL QUESTION FOR PURPOSES OF THE DISCOVERY RULE AND FRAUDULENT CONCEALMENT.

CERTIFICATIONS

Footnotes

ADDENDUM

PROCEEDINGS

COMMITTEE OF THE WHOLE AN ACT CONCERNING THE RECOGNITION OF A DIVORCE OCTAINED IN ANOTHER JURISDICTION AND TO MAKE UNIFORM THE LAW WITH REFERENCE THERETO

NATIONAL CONFERENCE OF COMMISSIONERS

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