Haddock v. Haddock/Dissent Wendell Holmes, Jr.
Mr. Justice Holmes, with whom concurred Mr. Justice Harlan, Mr. Justice Brewer, and Mr. Justice Brown, dissenting:

I do not suppose that civilization will come to an end whichever way this case is decided. But as the reasoning which prevails in the mind of the majority does not convince me, and as I think that the decision not only reverses a previous wellconsidered decision of this court, but is likely to cause considerable disaster to innocent persons, and to bastardize children hitherto supposed to be the offspring of lawful marriage, I think it proper to express my views. Generally stated, the issue is whether, when a husband sues in the court of his domicil for divorce from an absent wife on the ground of her desertion, the jurisdiction of the court, if there is no personal service, depends upon the merits of the case. If the wife did desert her husband in fact, or if she was served with process, I understand it not to be disputed that a decree of divorce in the case supposed would be conclusive, and so I understand it to be admitted that if the court of another state, on a retrial of the merits, finds them to have been decided rightly, its duty will be to declare the decree a bar to its inquiry. The first form of the question is whether it has a right to inquire into the merits at all. But I think that it will appear directly that the issue is narrower even than that.

In Atherton v. Atherton, 181 U.S. 155, 45 L. ed. 794, 21 Sup. Ct. Rep. 544, a divorce was granted, on the ground of desertion divorce was granted, on the ground of desertion, a wife who had established herself in New York. She did not appear in the suit and the only notice to her was by mail. Before the decree was made she sued in New York for a divorce from bed and board, but pending the latter proceedings the Kentucky suit was brought to its end. The husband appeared in New York and set up the Kentucky decree. The New York court found that the wife left her husband because of his cruel and abusive treatment, without fault on her part, held that the Kentucky decree was no bar, and granted the wife her divorce from bed and board. The New York decree, after being affirmed by the court of appeals, was reversed by this court on the ground that it did not give to the Kentucky decree the faith and credit which it had by law in Kentucky. Of course, if the wife left her husband because of his cruelty, and without fault on her part, as found by the New York court, she was not guilty of desertion. Yet this court held that the question of her desertion was not open, but was conclusively settled by the Kentucky decree.

There is no difference, so far as I can see, between Atherton v. Atherton and the present case, except that in Atherton v. Atherton the forum of the first decree was that of the matrimonial domicil, whereas in this the court was that of a domicil afterwards acquired. After that decision any general objection to the effect of the Connecticut decree on the ground of the wife's absence from the state comes too late. So does any general objection on the ground that to give it effect invites a race of diligence. I therefore pass such arguments without discussion, although they seem to me easy to answer. Moreover, Atherton v. Atherton decides that the jurisdiction of the matrimonial domicil, at least, to grant a divorce for the wife's desertion without personal service, does not depend upon the fact of her desertion, but continues even if her husaband's cruelty has driven her out of the state, and she has acquired a separate domicil elsewhere, upon the principles which we all agree are recognized by this court.

I can see no ground for giving a less effect to the decree when the husband changes his domicil after the separation has taken place. The question whether such a decree should have a less effect is the only question open, and the issue is narrowed to that. No one denies that the husband may sue for divorce in his new domicil, or, as I have said, that if he gets a decree when he really has been deserted, it will be binding everywhere. Hawkins v. Ragsdale, 80 Ky. 353, 44 Am. Rep. 483, cited 181 U.S. 162, 45 L. ed. 799, 21 Sup. Ct. Rep. 544; Cheely v. Clayton, 110 U.S. 701, 705, 28 L. ed. 298, 299, 4 Sup. Ct. Rep. 328. It is unnecessary to add more cases. The only reason which I have heard suggested for holding the decree not binding as to the fact that he was deserted, is that if he is deserted, his power over the matrimonial domicil remains so that the domicil of the wife accompanies him wherever he goes, whereas if he is the deserter he has no such power. Of course this is a pure fiction, and fiction always is a poor ground for changing substantial rights. It seems to me also an inadequate fiction, since by the same principle, if he deserts her in the matrimonial domicil, he is equally powerless to keep her domicil there, if she moves into another state. The truth is that jurisdiction no more depends upon both parties having their domicil within the state, than it does upon the presence of the defendant there, as is shown not only by Atherton v. Atherton, but by the rights of the wife in the matrimonial domicil when the husband deserts.

There is no question that a husband may establish a new domicil for himself, even if he has deserted his wife. Yet in these days of equality I do not suppose that it would be doubted that the jurisdiction of the court of the matrimonial domicil to grant a divorce for the desertion remained for her, as it would for him in the converse case. See Cheever v. Wilson, 9 Wall. 108, 19 L. ed. 604. Indeed, in Ditson v. Ditson, 4 R. I. 87, which, after a quotation of Judge Cooley's praise of it, is stated and relied upon as one of the pillars for the decision of Atherton v. Atherton, a wife was granted a divorce, without personal service, in the state of a domicil acquired by her after separation, on the sole ground that in the opinion of the court its decree would be binding everywhere. If that is the law it disposes of the case of a husband under similar circumstances,-that is to say, of the present case, a fortiori; for I suppose that the notion that a wife can have a separate domicil from her husband is a modern idea. At least Ditson v. Ditson confirms the assumption that jurisdiction is not dependent on the wife's actually residing in the same state as her husband, which has been established by this court. Atherton v. Atherton, supra; Maynard v. Hill, 125 U.S. 190, 31 L. ed. 624, 8 Sup. Ct. Rep. 723; Cheerer v. Wilson, supra. When that assumption is out of the way, I repeat that I cannot see any ground for distinguishing between the extent of jurisdiction in the matrimonial domicil and that, admitted to exist to some extent, in a domicil later acquired. I also repeat and emphasize that if the finding of a second court, contrary to the decree, that the husband was the deserter, destroys the jurisdiction in the later acquired domicil because the domicil of the wife does not follow his, the same fact ought to destroy the jurisdiction in the matrimonial domicil if, in consequence of her husband's conduct, the wife has left the state. But Atherton v. Atherton decides that it does not.

It is important to bear in mind that the present decision purports to respect, and not to overrule, Atherton v. Atherton. For that reason, among others, I spend no time in justifying that case. And yet it appears to me that the whole argument which prevails with the majority of the court is simply an argument that Atherton v. Atherton is wrong. I have tried in vain to discover anything tending to show a distinction between that case and this. It is true that in Atherton v. Atherton, Mr. Justice Gray confined the decision to the case before the court. Evidently, I should say, from internal evidence, in defence to scruples which he did not share. But a court, by announcing that its decision is confined to the facts before it, does not decide in advance that logic will not drive it further when new facts arise. New facts have arisen. I state what logic seems to me to require if that case is to stand, and I think it reasonable to ask for an articulate indication of how it is to be distinguished.

I have heard it suggested that the difference is one of degree. I am the last man in the world to quarrel with a distinction simply because it is one of degree. Most distinctions, in my opinion, are of that sort, and are none the worse for it. But the line which is drawn must be justified by the fact that it is a tittle nearer than the nearest opposing case to one pole of an admitted antithesis. When a crime is made burglary by the fact that it was committed thirty seconds after one hour after sunset, ascertained according to mean time in the place of the act, to take an example from Massachusetts (Rev. Laws, chap. 219, § 10), the act is a little nearer to midnight than if it had been committed one minute earlier, and no one denies that there is a difference between night and day. The fixing of a point when day ends is made inevitable by the admission of that difference. But I can find no basis for giving a greater jurisdiction to the courts of the husband's domicil when the married pair happens to have resided there for a month, even if with intent to make it a permanent abode, than if they had not lived there at all.

I may add, as a consideration distinct from those which I have urged, that I am unable to reconcile with the requirements of the Constitution, article 4, § 1, the notion of a judgment being valid and binding in the state where it is rendered, and yet depending for recognition to the same extent in other states of the Union upon the comity of those states. No doubt some color for such a notion may be found in state decisions. State courts do not always have the Constitution of the United States vividly present to their minds. I am responsible for language treating what seems to me the fallacy as open, in Blackinton v. Blackinton, 141 Mass. 432, 436, 55 Am. Rep. 485, 5 N. E. 830. But there is no exception in the words of the Constitution. 'If the judgment is conclusive in the state where it was pronounced, it is equally conclusive everywhere.' Christmas v. Russell, 5 Wall. 290, 302, 18 L. ed. 475, 478. Marshall, Ch. J., in Hampton v. M'Connel, 3 Wheat. 234, 4 L. ed. 378; Mills v. Duryee, 7 Cranch, 481, 485, 3 L. ed. 411, 413; Story, Const. § 1313. See also Hancock Nat. Bank v. Farnum, 176 U.S. 640, 644, 645, 44 L. ed. 619, 621, 622, 20 Sup. Ct. Rep. 506. I find no qualification of the rule in Wisconsin v. Pelican Ins. Co. 127 U.S. 265, 32 L. ed. 239, 8 Sup. Ct. Rep. 1370. That merely decided, with regard to a case not within the words of the Constitution, that a state judgment could not be sued upon when the facts which it established were not a cause of action outside the state. It did not decide or even remotely suggest that the judgment would not be conclusive as to the facts if in any way those facts came in question. It is decided as well as admitted that a decree like that rendered in Connecticut in favor of a deserting husband is binding in the state where it is rendered. Maynard v. Hill, supra. I think it enough to read that case in order to be convinced that at that time the court had no thought of the divorce being confined in its effects to the territory where it was granted, and enough to read Atherton v. Atherton to see that its whole drift and tendency now are reversed and its necessary consequences denied. 

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