HELEN LAFORGE BOWDITCH vs. WILLIAM I. BOWDITCH.

DOLAN, J. This is a petition for guardianship of the estate in this Commonwealth of the respondent as a spendthrift. The petitioner alleges that she is the wife of the respondent; and that by excessive drinking, gaming, and idleness he so spends, wastes and lessens his estate as to expose his family to want and suffering, and also thereby exposes the "town of Newton" to expense for her and their support. See G. L. (Ter. Ed.) c. 201, Section 8; Dexter v. Dexter, 283 Mass. 327. The respondent filed a plea in abatement as follows: "Now comes William I. Bowditch and says that on the eighth day of November, 1940, the District Court of the Third Judicial District of the State of Idaho, in and for the County of Ada, a court of competent jurisdiction, ordered and adjudged that the marriage theretofore existing between William I. Bowditch and Helen LaForge Bowditch (the petitioner) be dissolved; that they be divorced absolutely and that thereafter they and each of them occupy the status of single, unmarried persons. Wherefore the petitioner is not a proper person to file a petition under section 8 of Chapter 201 of G. L. (Ter. Ed.) and your respondent respectfully requests that said petition be dismissed." If the petitioner was not the wife of the respondent, not being otherwise related to him, she would have no standing as party petitioner. See G. L. (Ter. Ed.) c. 201, Section 8; Mitchell v. Mitchell, 312 Mass. 154, 159-162. At the hearing of the plea a stenographer was appointed to report the

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evidence. After hearing the judge entered the following decree: "After a full hearing on the respondent's `plea in abatement', it appearing to the court that the allegation of fact contained in said plea has not been proved: It is adjudged that said plea in abatement is disproved, and is therefore dismissed." Being of opinion that this interlocutory decree so affects the merits of the controversy that the matter ought, before further proceedings, to be determined by this court, the judge reported the same together with "the evidence and all questions of law" for the determination of this court. See G. L. (Ter. Ed.) c. 215, Section 13.

Material facts disclosed by the evidence follow: The parties were married in Newton on February 24, 1934. They then went to live at 1662 Commonwealth Avenue in that city, in a house owned by the petitioner since 1925. This house continued to be the home of the parties. On September 10, 1939, the respondent entered the McLean Hospital in Belmont and remained there until April 9, 1940, when he left the Commonwealth. Arriving at the hospital to visit the respondent on that day, the petitioner found that he was not there. On March 29, 1940, he sent a letter to the trust officer of a trust company that was the trustee under his father's will, in which he said: "I am about to leave on an indefinite trip which is not likely to bring me back to this vicinity for some time." On his departure he took none of his personal effects from his home except a panama hat and a black suit. In answer to interrogatories the respondent stated that he left this Commonwealth because his wife had ceased to care for him, if she ever did, and was interested in having him committed to some institution and having a guardian appointed; that he became acquainted with one Nan Dissel in Seattle, Washington, in 1926; that her husband died in August, 1938; that he had corresponded with her between that date and April 10, 1940, made a telephone call to her in May, 1939, and talked with her; that he saw her occasionally during June and the early part of July, 1940, in Seattle, where he lived at the Hotel Mayflower; that he went to Idaho about the middle of July, 1940, and remained there until the first of the year

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1941; that since that date he has lived in Seattle, Washington; and that on May 28, 1941, he and Nan Dissel were married in Coeur d'Alene, Idaho. There was evidence that on October 3, 1940, the respondent filed an action to procure a divorce from the petitioner in the District Court of the Third Judicial District of Idaho for the county of Ada, on the ground of extreme cruelty. On that day a summons was issued from that court directing the petitioner herein to appear and plead to the complaint within twenty days of the service. She was served with the summons together with a copy of the complaint at her home in Newton, but she did not appear nor take any part in the proceedings. A decree was entered in the District Court of the Third Judicial District of Idaho on November 8, 1940, wherein it was ordered and adjudged that the marriage "heretofore existing between plaintiff and defendant be dissolved, that they be divorced absolutely and that hereafter they and each of them occupy the status of single, unmarried persons." It was further ordered that neither of the parties should again become married, "unless each to the other, for a period of six (6) months next following the date of judgment herein." There is nothing in the respondent's answers to the interrogatories and cross-interrogatories propounded to him to show at what address he lived in Idaho during the period from about the middle of July, 1940, to the first of the year 1941. But a deposition of the manager of the Hotel Boise, Boise, Idaho, was admitted in evidence from which it appears that the respondent had registered at that hotel on three different occasions in 1940, and that the records of the hotel showed the following registrations by him: "Address: 1662 Commonwealth Avenue, West Newton, Massachusetts. Arrived: April 29, 1940. Departed: April 30, 1940. Address: 1604-43rd North, Seattle, Washington. Arrived: July 20, 1940. Departed: July 30, 1940. Address: Seattle, Washington. Arrived: October 3, 1940. Departed: October 6, 1940." So far as these records disclose he had spent not more than two days at that hotel in April, 1940, only ten days in July, 1940, and only three days in October, 1940. On one of those occasions he gave

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his address as West Newton, Massachusetts, and on two of those occasions he gave his address as Seattle, Washington, in one instance as of a stated street and number in Seattle. Significantly, the third date of registration is the same date as that upon which he filed the complaint for divorce in the District Court of the Third Judicial District of Idaho.

Certified copies of the parts of the Idaho Code Annotated (1932) relative to divorce and service of process were brought to the attention of the judge. Section 31-701 of the code as amended provides, so far as here material, as follows: "Residence Required by Plaintiff. -- A divorce must not be granted unless the plaintiff has been a resident of the state for six full weeks next preceding the commencement of the action."

A consideration of the entries in the hotel register, to which we have referred, in the light of the failure of the respondent to prove any other places in the State of Idaho at which he might have resided, leads strongly to the conclusions that the respondent has not sustained the burden of proving that he ever acquired a domicil in the State of Idaho, and that the decree or judgment entered in that action was void for lack of jurisdiction.

The constitutional provision "that full faith and credit shall be given in each State to the judicial proceedings of other States, does not preclude inquiry into the jurisdiction of the court in which the judgment is rendered, over the subject matter, or the parties affected by it, or into the facts necessary to give such jurisdiction." Thormann v. Frame, 176 U.S. 350, 356. In Bell v. Bell, 181 U.S. 175, 177, 178, it was decided that a bona fide residence on the part of the petitioner was essential to the validity of a decree of divorce, and that recitals in the divorce proceedings of facts necessary to show jurisdiction may be contradicted. We think that these principles are still good law.

There is nothing in conflict with the principles just stated in the case of Williams v. North Carolina, 317 U.S. 287, so largely relied upon by the respondent in support of his contention that the jurisdiction of the Idaho court to grant the divorce in question cannot be questioned in the present proceeding.

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In the Williams case the court stated that North Carolina "admits that there probably is enough evidence in the record to require that petitioners be considered `to have been actually domiciled in Nevada'" (page 291), the State in which the divorces under attack were granted. A bona fide domicil of the petitioners in that case was assumed by the court (page 302) which stated that "each state, by virtue of its command over its domiciliaries and its large interest in the institution of marriage, can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent," and held that there is no constitutional barrier if the form and nature of the substituted service meet the requirement of due process (pages 298-299); and said, in substance, that under the full faith and credit clause and the act of May 26, 1790, c. 11, U. S. C. Title 28, Section 687, when a decree of divorce, granted by a State to one who is at the time bona fide domiciled therein, is rendered in a proceeding complying with due process, such decree, if valid under the laws of that State, is binding upon the courts of other States (page 299). It was further said that the issue in the Bell case was not reached in the Williams case. That is because it was conceded in the Williams case that there was enough evidence in the record to require that the petitioners be considered to have been actually domiciled in Nevada.

As we interpret the decision under discussion, we are of opinion that it is still competent for the courts of other States to inquire into the validity of a divorce so far, at least, as its validity depends upon the jurisdiction of the State where the divorce was granted, and that a domicil by one of the parties in the State in which the divorce was granted is essential to jurisdiction. See Williams v. North Carolina, 317 U.S. 287, 297, 298. That there is nothing in the Williams case contrary to the rule that one who relies upon a foreign divorce must not only plead and prove it, but must also prove his bona fide domicil at the time the divorce relied upon was granted in the foreign State, is the interpretation placed upon the Williams case in cases since decided by a State court (though not of last resort).

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See Schnabel v. Schnabel, 179 Misc. (N. Y.) 620; Jiranek v. Jiranek, 179 Misc. (N. Y.) 502; Meyers v. Meyers, 179 Misc. (N. Y.) 680. We are of opinion that there is nothing in the Williams case in conflict with Bell v. Bell, 181 U.S. 175, which holds that at least the petitioner must be genuinely domiciled in the State that granted the divorce.

In the present case it is our duty under the familiar rule to examine the evidence and to decide the case according to our own judgment, giving due weight to the findings of the judge, expressed or implied in the decree entered by him, which will not be reversed unless plainly wrong. An examination of the evidence satisfies us that it supports the conclusion that the respondent has not sustained the burden of proving the affirmative defence that he has been divorced from the petitioner by a court of competent jurisdiction.

There is nothing in Davis v. Davis, 305 U.S. 32, cited by the respondent, that is in conflict with the result here reached. In that case it was expressly found that the petitioner had been domiciled for the requisite time in the State in which he had been granted an absolute divorce.

The decree entered by the judge overruling the plea in abatement is affirmed.

Ordered accordingly.