Cook v. Cook/Opinion of the Court
Shortly after petitioner and respondent were married on February 5, 1943, respondent discovered that petitioner was the lawful wife of one Mann. At that time petitioner and respondent were living in Virginia and agreed that petitioner would go to Florida and obtain there a divorce from Mann, so that they could be remarried. That course was followed, respondent paying a part of the expenses of the trip to Florida and of the divorce action. Petitioner received a Florida decree and a few weeks later, December 18, 1943, again married respondent. Marital difficulties developed and petitioner secured in Hawaii a decree of separation and maintenance. Thereafter respondent brought the present action in the Vermont courts to have the marriages declared null and void. Petitioner was served by publication and appeared. There was a trial, after which the Windsor County Court granted a judgment of annulment. It found that under Florida law it was necessary for petitioner to have had an intention to live and remain in Florida, which she did not have; that she testified falsely in the Florida proceedings respecting her domicile in Florida; and that she secured the Florida decree by deceiving the Florida court as to her domicile. The Windsor County Court annulled the marriage of February 5, 1943, and dismissed the petition as respects the second marriage. The Supreme Court of Vermont affirmed the judgment annulling the first marriage but reversed the dismissal as to the second marriage and held it also null and void. 116 Vt. 374, 76 A.2d 593. The case is here on certiorari. 341 U.S. 914, 71 S.Ct. 732, 95 L.Ed. 1350.

On this record we do not know what happened in the Florida divorce proceedings except that the Florida court entered a divorce decree in favor of petitioner and against Mann. So far as we know, Mann was a party to the proceedings. So far as we know, the issue of domicile was contested, litigated and resolved in petitioner's favor. If the defendant spouse appeared in the Florida proceedings and contested the issue of the wife's domicile, Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429, or appeared and admitted her Florida domicile, Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, or was personally served in the divorce state, Johnson v. Muelberger, 340 U.S. 581, 587, 71 S.Ct. 474, 477, 95 L.Ed. 552, he would be barred from attacking the decree collaterally; and so would a stranger to the Florida proceedings, such as respondent, unless Florida applies a less strict rule of res judicata to the second husband than it does to the first. See Johnson v. Muelberger, supra. On the other hand, if the defendant spouse had neither appeared nor been served in Florida, the Vermont court, under the ruling in Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, could reopen the issue of domicile.

But the burden of undermining the decree of a sister state 'rests heavily upon the assailant.' Williams v. State of North Carolina, supra, 325 U.S. at page 234, 65 S.Ct. at page 1097; Esenwein v. Commonwealth of Pa. ex rel. Esenwein, 325 U.S. 279, 280-281, 65 S.Ct. 1118, 1119, 89 L.Ed. 1608. A judgment presumes jurisdiction over the subject matter and over the persons. See Titus v. Wallick, 306 U.S. 282, 287, 59 S.Ct. 557, 560, 83 L.Ed. 653. As stated for the Court by Justice Stone in Adam v. Saenger, 303 U.S. 59, 62, 58 S.Ct. 454, 456, 82 L.Ed. 649, 'If it appears on its face to be a record of a court of general jurisdiction, such jurisdiction over the cause and the parties is to be presumed unless disproved by extrinsic evidence, or by the record itself.'

The Florida decree is entitled to that presumption. That presumption may of course be overcome by showing, for example, that Mann never was served in Florida nor made an appearance in the case either generally or specially to contest the jurisdictional issues. The Vermont Supreme Court recognized that there were no findings on those issues in the present record. The Court in referring to the case of Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, said, 'It was there held that the question of bona fide domicile was open to attack, notwithstanding the full faith and credit clause when the other spouse neither had appeared nor been served with process in the state. The findings here do not show either of these criteria.' 116 Vt. 374, 378, 76 A.2d 593, 595. Yet it is essential that the court know what transpired in Florida before this collateral attack on the Florida decree can be resolved. For until Florida's jurisdiction is shown to be vulnerable, Vermont may not relitigate the issue of domicile on which the Florida decree rests. It was said on argument that the first husband appeared in the Florida proceeding. But the record does not contain the Florida decree nor any stipulation concerning it.

We deal only with the presumption, not with the issues on which the Vermont court made its findings. We also reverse the question, discussed on argument, whether respondent would now be in a position to attack the Florida decree collaterally if it were found to be collusive and he participated in the fraud.

The judgment is reversed and the cause is remanded to the Supreme Court of Vermont for proceedings not inconsistent with this opinion.

Reversed. 

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