REININK
v.
REININK
Docket No. 7,427.
Michigan Court of Appeals.
Decided May 28, 1970.*203 James W. Bussard, for plaintiff.
Robert J. Scheuerle, for defendant.
Before: HOLBROOK, P.J., and BRONSON and E.W. BROWN,[*] JJ.
BROWN, J.
Appellant Catherine Reinink seeks reversal of the decision of the Ottawa county circuit court denying her motion for a new trial and dismissing her suit for separate maintenance. At the hearing held in appellant's separate maintenance suit on June 24, 1968, the defendant placed in evidence a judgment of divorce which he had secured in Arkansas on March 25, 1968. The trial court found that "the Arkansas divorce was obtained in good faith and is valid" and dismissed plaintiff's separate maintenance suit on the ground that the court was "without power to award a sum to plaintiff for her support or to set aside defendant's property for plaintiff's benefit or support."
Appellant contends that the trial court erred in finding that Mr. Reinink acquired a bona fide domicile in Arkansas and that the foreign judgment of divorce was entitled to full faith and credit as provided by the United States Constitution. There is, of course, no question of the right of a state to inquire into and determine whether or not domicile was acquired in a foreign jurisdiction in which a divorce decree is granted. Gray v. Gray (1948), 320 Mich. 49; Henry v. Henry (1960), 362 Mich. 85. Nor is there any question that in attacking a presumptively valid decree of divorce issued by a sister *204 State, the full faith and credit clause demands that the attacking party bear the burden of proof that no domicile was established. Henry, supra, at p 102.
The Reininks were married in Holland, Michigan, on December 19, 1929, and lived together as husband and wife until August 14, 1965. In 1966 Mr. Reinink instituted an action for divorce in Ottawa county, Michigan. The action was dismissed after trial. On November 7, 1967, Mrs. Reinink commenced suit for separate maintenance under CL 1948, § 552.7 (Stat Ann 1957 Rev § 25.87). Mr. Reinink left for Arkansas on December 19, 1967. He obtained a pro confesso divorce in an Arkansas state court on March 25, 1968.
Defendant had worked for the city of Holland for eight years. When he went to Arkansas he took a three-month leave of absence from his employment. He took with him what personal belongings he could carry in his car. He retained his membership in the Lion's Club and VFW in Holland. He promptly returned to Holland two or three days after he secured his divorce and resumed his former employment with the city of Holland. Against this indicia of lack of domicile in Arkansas there is nothing in the record but the bland statement of defendant that he intended to permanently reside in Arkansas and returned to Michigan only because he could not find suitable employment there.
The trial court, we opine, was somewhat charitable in finding that defendant acquired a bona fide domicile in Arkansas. It is true that this Court hears divorce cases de novo and we do not generally reverse or modify unless convinced that we would have had to reach a different result had we occupied the position of the trial court. Wells v. Wells (1951), 330 Mich. 448; Ethridge v. Ethridge (1948), 322 Mich. 578. On the basis of the record in this case, we conclude *205 that we would have had to reach a different result. Our review of the testimony requires the conclusion that defendant did not acquire a bona fide domicile in the State of Arkansas and that his pro confesso judgment of divorce there is not entitled to full faith and credit in Michigan. As was said in Henry, supra, p 88:
"Michigan law provides no quick and easy divorce. Nor, when a married couple is domiciled in Michigan, may one party go to another State solely in order to procure a divorce with the expectation that it will subsequently be recognized in Michigan. Gray v. Gray (1948), 320 Mich. 49. This appeal illustrates the tragic results of ignoring this long-established rule."
Even if we were to accept the trial court's finding that the Arkansas decree is entitled to full faith and credit, that decree would not affect plaintiff's right to support because Michigan, in Malcolm v. Malcolm (1956), 345 Mich. 720, adopted the concept of "divisible divorce" developed by the New York courts and the United States Supreme Court.
The United States Supreme Court gave constitutional approval to the idea in Estin v. Estin (1948), 334 U.S. 541 (68 S. Ct. 1213, 92 L. Ed. 1561). Mrs. Estin brought an action for separate maintenance in New York before her husband sued for divorce in Nevada. Nevada's pro confesso decree purported to terminate any support obligation of the husband. In affirming a subsequent New York determination that Mr. Estin's obligation continued despite the Nevada decree, Justice Douglas said:
"New York was rightly concerned lest the abandoned spouse be left impoverished and perhaps become a public charge. The problem of her livelihood *206 and support is plainly a matter in which her community had a legitimate interest." 334 US at 547. * * *
"The result of this situation is to make the divorce divisible to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony. It accommodates the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern." 334 US at 549.
In Vanderbilt v. Vanderbilt (1957), 354 U.S. 416 (77 S. Ct. 1360, 1 L. Ed. 2d 1456), the Supreme Court made clear that the time sequence of the actions in Estin made no difference; the separate maintenance action could be brought after the foreign divorce decree.
In Malcolm, supra, as in the present case, the wife sued for separate maintenance in Michigan a few months before her husband obtained a pro confesso decree of divorce in Nevada. The trial court awarded support for the wife and the Supreme Court affirmed saying:
"Failure of the Nevada court to pronounce * * * judgment respecting support by Mr. Malcolm of Mrs. Malcolm left our circuit court free to adjudicate upon the matter * * *. This would be so even if the Nevada court had expressly assumed to determine judicially that the husband need no longer support his original mate." 345 Mich. 726.
Thus it would appear clear that a pro confesso decree of divorce obtained in another state does not terminate the Michigan spouse's right to support.
Reversed. Costs to plaintiff.
All concurred.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.