Boardman v. Boardman , 135 Conn. 124 ( 1948 )

The majority reach the conclusion that a wife may acquire a domicile apart from her husband regardless of her reasons for separating from him and that under a joint guardianship law the domicile of their child is that of his mother if he is residing with her. They conclude that "In such circumstances she comes within the statement in Cheever v. Wilson, 76 U.S. 108, 124, 19 L. Ed. 604, that a wife may establish a domicile of her own `whenever it is necessary or proper that she should do so.'" The sentence following that quoted is: "The right springs from the necessity for its exercise, and endures as long as the necessity continues." No necessity appears in the case before us for the acquirement of a separate domicile by the defendant mother.

The majority opinion recognizes, as it must under established law, that the judgment of the New York court, so far as it relates to the separation of the parties, is entitled to full faith and credit under the federal constitution. Article IV, 1, of the constitution requires full faith and credit to be given to the "judicial Proceedings of every other State." The judgment of another state "should have the same credit, validity and effect in every other court in the United States which it had in the state where it was pronounced. . . ." Bank of North America v. Wheeler,28 Conn. 433, 439; Wehrhane v. Peyton, 134 Conn. 486,495, 58 A.2d 698; Williams v. North Carolina, 317 U.S. 287, 293, 63 S. Ct. 207, 87 L. Ed. 279. The copy of the judgment before us as an exhibit shows that it was based upon a finding that the defendant had abandoned the plaintiff without just cause, and we must accept this as an established fact. The New York court first took jurisdiction of the parties, and the defendant has made no appeal to the courts of this state for custody of the child except in defense to the action of habeas corpus.

In Torlonia v. Torlonia, 108 Conn. 292, 296,142 A. 843, we stated that a rule of "practically unanimous acceptance in the United States is that a wife may acquire another and separate domicile from that of her husband, giving jurisdiction for proceedings for divorce, where the theoretical unity of husband and wife has been dissolved, as where the husband has given cause for divorce, or there is a separation of the parties by agreement, or where cruel treatment or other similar misconduct on the part of the husband has produced a permanent separation." In Glass v. Glass,260 Mass. 562, 565, 157 N.E. 621, it is said: "A married woman may acquire a domicile different from that of her husband in appropriate circumstances. . . . But in the absence of some neglect of parental duty on the part of the father, or some provision of statute, that does not affect the domicile of minor children of the two born in lawful wedlock." In Sherrer v. Sherrer,334 U.S. 343, 354, 68 S. Ct. 1087, 92 L. Ed. 1055, decided June 7, 1948, it is stated that the obligation of one state to another is to give full faith and credit to the divorce decrees of another state, italicizing "full." In that case earlier cases are reviewed and it is said (p. 351): "Those cases stand for the proposition that the requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister State where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the State which rendered the decree." In that case the defendant participated in the trial in the sister state. In this case she did not, but she had "full opportunity to contest the jurisdictional issues." She had personal notice of the action by receipt of the complaint, and custody of the child was requested therein. It is added in the Sherrer case (p. 352) that "If respondent failed to take advantage of the opportunities afforded him, the responsibility is his own." Where custody is involved, a decree of divorce disposes of the custody of the child as between husband and wife. Matter of Thorne, 240 N.Y. 444, 449, 148 N.E. 630.

The majority seek to fortify their position by resort to a general rule "that the courts of a state where a child actually resides are in the best position to determine the persons in whose custody he should for his best interests be placed." The trial court in the instant case found that the care of the child, whichever parent had custody, must fall largely on his grandparents and that the parents of both parties could furnish an entirely adequate home for the child, but it concluded that he should have his mother's care. This was an issue that the New York court must necessarily have taken into consideration. The trial court has found that there has been no material change in the circumstances of the parties as far as they have a bearing on the custody of the child from the date of the commencement of the New York action to the date of the hearing in this action. There was therefore no justification for the courts of this state to take jurisdiction on this ground. Freund v. Burns, 131 Conn. 380,385, 40 A.2d 754.

I cannot concur in a ruling that a wife may abandon her husband and home in one state under such circumstances as these and establish a domicile for herself and their child in another state so as to justify the courts of the latter state in ignoring the judgment of the former as to custody of the child. It seems apparent that the effect of such a judgment will be limited. It can hardly be expected that the New York court will take our view of its lack of jurisdiction. The purpose of the full faith and credit provision will be defeated. See Estin v. Estin, 334 U.S. 541,68 S. Ct. 1213, 92 L. Ed. 1078. It is noted that the trial court's decision does not permit the plaintiff to have custody of his child outside the state. He is restricted to visitation at reasonable times. The practical result of the decision is that the father, who has been abandoned by his wife without just cause, is further deprived of all custody of his child by that act.

In this opinion MELLITZ, J., concurred.