Williams v. North Carolina

Mr. Justice Rutledge,

dissenting.

Once again the ghost of “unitary domicil” returns on its perpetual round, in the guise of “jurisdictional fact,” to upset judgments, marriages, divorces, undermine the relations founded upon them, and make this Court the unwilling and uncertain arbiter between the concededly valid laws and decrees of sister states. From Bell and Andrews to Davis to Haddock to Williams and now back to Haddock and Davis through Williams again1 — is the maze the Court has travelled in a domiciliary wilderness, only to come out with no settled constitutional policy where one is needed most.

Nevada's judgment has not been voided. It could not be, if the same test applies to sustain it as upholds the North Carolina convictions.2 It stands, with the marriages founded upon it, unimpeached. For all that has been determined or could be, unless another change is in the making, petitioners are lawful husband and wife in Nevada. Williams v. North Carolina I, 317 U. S. 287; Williams v. North Carolina II, ante, p. 226. They may be such everywhere outside North Carolina. Lawfully wedded also, in North Carolina, are the divorced spouse of one and his wife, taken for all we know in reliance upon the Nevada decree.3 That is, unless another jury shall fmd they *245too are bigamists for their reliance. No such jury has been impanelled. But were one called, it could pronounce the Nevada decree valid upon the identical evidence from which the jury in this case drew the contrary conclusion. That jury or it and another, if petitioners had been tried separately, could have found one guilty, the other innocent, upon that evidence unvaried by a hair. And, by the Court’s test, we could do nothing but sustain the contradictory findings in all these cases.

I do not believe the Constitution has thus confided to the caprice of juries the faith and credit due the laws and judgments of sister states. Nor has it thus made that question a local matter for the states themselves to decide. Were all judgments given the same infirmity, the full faith and credit clause would be only a dead constitutional letter.

I agree it is not the Court’s business to determine policies of divorce. But precisely its function is to lay the jurisdictional foundations upon which the states’ determinations can be made effective, within and without their borders. For in the one case due process, in the other full faith and credit, commands of equal compulsion upon the states and upon us, impose that duty.

I do not think we perform it, we rather abdicate, when we confide the ultimate decision to the states or to their juries. This we do when, for every case that matters, we make their judgment conclusive. It is so in effect when the crucial concept is as variable and amorphous as “domi-cil,” is always a conclusion of “ultimate fact,” and can be established only by proof from which, as experience shows, *246contradictory inferences may be made as strikes the local trier’s fancy. The abdication only becomes more obviously explicit when we avowedly confess that the faith and credit due may be determined either way, wherever “it cannot reasonably be claimed that one set of inferences rather than another” could not be drawn concerning the very matter determined by the judgment; and the final choice upon such a balance is left with the local jury.

No more unstable foundation, for state policies or marital relations, could be formulated or applied. In no region of adjudication or legislation is stability more essential for jurisdictional foundations. Beyond abnegating our function, we make instability itself the constitutional policy when the crux is so conceived and pivoted.

I

What, exactly, are the effects of the decision ? The Court is careful not to say that Nevada’s judgment is not valid in Nevada. To repeat, the Court could not so declare it, unless a different test applies to sustain that judgment than supports North Carolina’s. Presumably the same standard applies to both; and each state accordingly is free to follow its own policy, wherever the evidence, whether the same or different, permits conflicting inferences of domicil, as it always does when the question becomes important.4

This must be true unless, contrary to the disclaimer, this Court itself is “to retry the facts.” The Court no more could say that the Nevada evidence permitted no conclusion of domicil there than it now can say the North Carolina evidence would not allow a finding either way. This apparently is conceded. The proof was not identical. But it was not so one-sided in either case that only one conclusion was compelled. The evidence in Nevada was *247neither that strong nor that weak.5 Seldom, if ever, is it so.

The necessary conclusion follows that the Nevada decree was valid and remains valid within her borders. So the marriage is good in Nevada, but void in North Carolina, just as it was before “the jurisdictional requirement of domicil [was] freed from confusing refinements about 'matrimonial domicil/ see Davis v. Davis, 305 U. S. 32, 41, and the like.” See also Haddock v. Haddock, 201 U. S. 562.

The characterization “in rem” has been dropped. But it is clear from the result and from the opinion that the more “confusing refinements” and consequences, including the anomalous status Haddock approved, have not completely disappeared. We are not told definitely whether Nevada’s adjudication or North Carolina’s must be respected, when the question is raised in some one of the other forty-six states. But one thing we do know. “The State of domiciliary origin should not be bound by an unfounded, even if not collusive, recital in the record of a court of another State.” The opinion goes on to repeat: “If a finding by the court of one State that domicil in another State has been abandoned were conclusive upon the old domiciliary State, the policy of each State in matters of most intimate concern could be subverted by the policy of every other State.” (Emphasis added.)

The question is not simply pertinent, it is imperative, whether “matrimonial domicil” has not merely been recast *248and returned to the play under the common law’s more ancient name of “domicil of origin.” For North Carolina is the only state which, upon the facts, conceivably could qualify either as “matrimonial domicil” or as “domicil of origin,” whether or not they differ. Under the former conception it was at least doubtful whether sheer reexamination of “the jurisdictional fact” previously determined could be made outside the state granting the divorce and the state of “matrimonial domicil.”6 Now we are told the decree “must be respected by the other forty-seven States provided — and it is a big proviso — the conditions for the exercise of power by the divorce-decreeing court are validly established whenever that judgment is elsewhere called into question.” (Emphasis added.)

If this means what it says, the proviso is big. It swallows the provision. Unless “matrimonial domicil,” banished in Williams I, has returned renamed in Williams II, every decree becomes vulnerable in every state. Every divorce, wherever granted, whether upon a residence of six weeks, six months or six years, may now be reexamined by every other state, upon the same or different evidence, to redetermine the “jurisdictional fact,” always the ultimate conclusion of “domicil.” For the grounds of the decision wholly negate that its effect can be limited to decrees of states having so-called “liberal” divorce policies; or to decrees recently granted; or to cases where different evidence is presented. It is implicit and inherent in the “unitary-domicil, jurisdictional-fact, permissible-inference” rule that any decree, granted after any length of time, upon any ground for divorce, and however'solid the proof, may be reexamined either by “the state of domiciliary origin” or by any other state, as the case uncertainly may be. And all that is needed, to disregard it, is some evidence from which a jury reasonably may conclude there was no domiciliary intent when the decree was rendered. That is, unless the Court means to reserve *249decision upon the weight of the evidence and thus “to retry the facts,” contrary to its declared intention, in some case or cases not defined or indicated.

II

Obviously more is involved than full faith and credit for judgments of other states. Beneath the judgment of Nevada lie her statutory law and policy. These too are denied recognition. This is not a case in which the denial extends, or could extend, to the judgment alone. For the North Carolina verdict and judgment do not purport to rest on any finding of fraud or other similar ground, whereby the petitioners procured judgments from the Nevada courts which the manner of their procurement vitiates.7

No such issue, impeaching the Nevada decree, has been made. The state asked no instructions on such a theory and none were given.8 The verdict and judgment there*250fore have not determined and do not rest upon any such ground.

In view of this fact I am completely at loss to understand what is meant, in the context of this case, by “an unfounded, even if not collusive, recital” which the state of domiciliary origin, perhaps others too, is free to disregard. The statement itself negates collusion as a ground for the decision. And, as I read the remainder of the opinion, it concedes and must concede, if the two judgments are to be tested alike, that the Nevada decree was not unfounded. The shape the issues have taken compels this conclusion.

Accordingly the case must be considered as shorn of any element of fraud, deceit or evasion of Nevada’s law, of showing that the Nevada court was imposed upon in any way or did other than apply the Nevada law according to its true intent and purpose. It must be taken also as devoid of any showing that Nevada failed in any way to comply with every requirement this Court has made respecting jurisdiction or due process of law, for rendering a valid divorce decree. Williams v. North Carolina, 317 U. S. 287.

The case therefore stands stripped of every difference, presently material, from the Nevada proceedings save two. There was none, jurisdictionally, in the issues. There was only different evidence upon which the same issue was determined in opposite fashions. And the states had different policies concerning divorce.

The difference in the evidence affected solely events taking place after the Nevada decree, the return to North Carolina and the cohabitation there. Ordinarily, valid judgments are not overturned, Schneiderman v. United States, 320 U. S. 118, or disregarded upon such retroactive proof.9 But here this proof was not tendered in attack *251upon the Nevada decree. It was offered and admitted exclusively to relitigate the same issue that decree had determined, upon adequate evidence and in full compliance with Nevada law and the federal law giving Nevada jurisdiction to determine it. Williams I; Williams II. Its sole function was to show that petitioners did not have the very intent the Nevada court, with eyes not blinded,10 had found they possessed.

Moreover, the character of the Court’s ruling makes the difference in the evidence, as it bore upon the controlling issue, of no materiality. It is not held that denial of credit will be allowed, only if the evidence is different or depending in any way upon the character or the weight of the difference. The test is not different evidence. It is evidence, whether the same or different and, if different, without regard to the quality of the difference, from which an opposing set of inferences can be drawn by the trier of fact “not unreasonably.” Presumably the Court will not “retry the facts” in either case.

But it does not define “not unreasonably.” It vaguely suggests a supervisory function, to be exercised when the denial strikes its sensibilities as wrong, by some not stated standard. So to suspend the matter is not law. It is only added uncertainty.

If the Court means not “to retry the facts,” the suggestion is wholly out of place. Then the test will be as it is in other cases where the question is whether a jury’s verdict will be sustained, upon an issue alleging want of supporting evidence. There will be no “weighing.” There will be only examination for sufficiency, with the limits marked by “scintillas” and the like.11

*252If this is the test, for all practical purposes the Court might as well declare outright that states of domiciliary origin are free to deny faith and credit to divorces granted elsewhere. For the case will be rare indeed where, by this standard, “domicil” can be determined as a matter of law, when divorce has been secured after departure from such a state. These are the only cases that matter. The issue does not arise with stay-at-homes. With others, it always can be raised and nearly always with “some” evidence, more than a “scintilla,” to sustain both contentions.

But if the test is different, “weighing” necessarily becomes involved and implicitly is what has been done in this case, notwithstanding the disclaimer. In that event, the crux of jurisdiction becomes the difference in the evidence; in this case, the return to North Carolina and cohabitation there.

If this is the decision’s intended effect, it should be squarely so declared. Too much hangs for too many people and for the states themselves upon beclouding it with a “different set of inferences — refusal to retry the facts” gloss or otherwise. It cannot be assumed that the matter will affect only a few. For this has become a nation of transient people. Lawyers everywhere advise for or against divorce and courts grant or deny it, depending not on the probability that the case will come here, but on what is done here with the few cases which do come. The matter is altogether too serious, for too many, for glossing over the crucial basis of decision.

Whether the one test or the other is intended, or perhaps still another not suggested, North Carolina’s action comes down to sheer denial of faith and credit to Nevada’s law and policy, not merely to her judgment; and the decision here, to approval of this denial. The real difference, in *253my opinion the only material one, as the issues and the decision have been made on this record, is that one suit and judgment took place in Nevada, the other in North Carolina, and the two states have different policies relating to divorce. Nor does the degree or quality of the difference hr.policies matter. It also is not weighed.12 The difference may be small for anything that is said, yet there is freedom to withhold credit.

If this is the test, every divorce granted a person who has come from another state is vulnerable wherever state policies differ, as they do universally if no account is taken of the weight of difference.

It is always a serious matter for us to say that one state is bound to give effect to another’s decision, founded in its different policy. That mandate I would not join in any case if not compelled by the only authority binding both the states and ourselves. Conceivably it might have been held that the full faith and credit clause has no application to the matters of marriage and divorce. But the Constitution has not left open that choice. And such has not been the course of decision. The clause applies, but from today it would seem only to compel “respect” or something less than faith and credit, whenever a jury concludes “not unreasonably,” by ultimate inference from the always conflicting circumstantial evidence, that it should not apply. Wherever that situation exists, the finding that there was no “bona fide” domiciliary intent comes in every practical effect to this and nothing more.

Permitting the denial is justified, it is said, because we must have regard also for North Carolina’s laws, policies and judgments. And so we must. But thus to state the question is to beg the controlling issue. By every test remaining effective, and not disputed, Nevada had power to alter the petitioner’s marital status. She made the alteration. If it is valid, neither North Carolina nor we *254are free to qualify it by saying it shall not be effective there, while it is effective in Nevada, and stands without impeachment for ineffectiveness there.

Just that denial is what the terms of the Constitution and the Act of Congress implementing them forbid. It is exactly for the situation where state policies differ that the clause and the legislation were intended. Without such differences, the need for constitutional limitation was hardly one of magnitude. The apparent exceptions for fraud and want pf jurisdiction were never intended to enable the states to disregard the provision and each other’s policies, crystallized in judgment, when every requisite for jurisdiction has been satisfied and no showing of fraud has been presented. They have a different purpose, one consistent with the constitutional mandate, not destructive of its effect. That purpose is to make sure that the state’s policy has been applied in the judgment, not to permit discrediting it or the judgment when the one validly crystallizes the other. Such an exception, grafted upon the clause, but nullifies it. It does so totally when the weight and quality of the difference in policies has no bearing on the issue.

Lately this fact has been recognized increasingly in relation to other matters than divorce.13 The very function of the clause is to compel the states to give effect to the contrary policies of other states when these have been validly embodied in judgment. To this extent the Constitution has foreclosed the freedom of the states to apply their own local policies. The foreclosure was not intended only for slight differences or for unimportant matters. It was also for the most important ones. The Constitution was not dealing with puny matters or inconsequential limitations. If the impairment of the power of the states is large, it is one the Constitution itself has made. Neither *255the states nor we are free to disregard it. The “local public policy” exception is not an exception, properly speaking. It is a nullifying compromise of the provision’s terms and purpose.

The effort at such compromise, in matters of divorce and remarriage, has not been successful. Together with the instrument by which the various attempts have been made, i. e., the notion of “unitary domicil” constitutional-ized as “jurisdictional fact,” this effort has been the source of the long confusion in the circle of decision here. To it may be attributed the reification of the marital status, now discarded in name if not in substance, and the splitting of the res to make two people husband and wife in one state, divorced in another. Haddock v. Haddock, supra; cf. Williams II. Now it leads to practical abandonment of the effort, of this Court’s function, and of the obligation placed upon the states, by committing to their juries for all practical effects the final choice to disregard it.

Ill

I do not concur in the abdication. I think a major operation is required to prevent it. The Constitution does not mention domicil. Nowhere does it posit the powers of the states or the nation upon that amorphous, highly variable common-law conception. Judges have imported it. The importation, it should be clear by now, has failed in creating a workable constitutional criterion for this delicate region. In its origin the idea of domicil was stranger to the federal system and the problem of allocating power within it. The principal result of transplanting it to constitutional soil has been to make more complex, variable and confusing than need be inherently the allocation of authority in the federal scheme. The corollary consequence for individuals has been more and more to infuse with uncertainty, confusion, and caprice those human relations which most require stability and depend for it upon how the distribution of power is made.

*256In my opinion these consequences are inevitable as long as “unitary domicil” usurps the role of “jurisdictional fact” and is applied under the “permissible inference” rule to turn questions of power first for creating jurisdiction, then for nullifying the effects of its exercise, to settle and then unsettle the human relations resting upon the power’s exertion. The conception has outlived its jurisdictional usefulness unless caprice, confusion and contradiction are the desirable criteria and consequences of jurisdictional conceptions.

Stripped of its common-law gloss, the basic constitutional issue inherent in the problem is whether the states shall have power to adopt so-called “liberal” divorce policies and grant divorces to persons coming from other states while there transiently or for only short periods not sufficient in themselves, absent other objective criteria, to establish more than casual relations with the community. One could understand and apply, without decades of confusion, a ruling that transient divorces, founded on fly-by-night “residence,” are invalid where rendered as well as elsewhere; in other words, that a decent respect for sister states and their interests requires that each, to validly decree divorce, do so only after the person seeking it has established connections which give evidence substantially and objectively that he has become more than casually affiliated with the community. Until then the newcomer would be treated as retaining his roots, for this purpose, as so often happens for others, at his former place of residence. One equally could understand and apply with fair certainty an opposite policy frankly conceding state power to grant transient or short-term divorces, provided due process requirements for giving notice to the other spouse were .complied with.

Either solution would entail some attenuation of state power. But that would be true of any other, which would not altogether leave the matter to the states and thus *257nullify the constitutional command. Strong considerations could be stated for either choice. The one would give emphasis to the interests of the states in maintaining locally prevailing sentiment concerning familial and social institutions. The other would regard the matter as more important from the standpoint of individual than of institutional relations and significance. But either choice would be preferable to the prevailing attempt at compromise founded upon the “unitary domicil-jurisdictional fact-permissible inference” rule.

That compromise gives effect to neither policy. It vitiates both; and does so in a manner wholly capricious alike for the institutional and the individual aspects of the problem. The element of caprice lies in the substantive domiciliary concept itself and also in the mode of its application.

Domicil, as a substantive concept, steadily reflects neither a policy of permanence nor one of transiency. It rather reflects both inconstantly. The very name gives forth the idea of home with all its ancient associations of permanence. But “home” in the modern world is often a trailer or a tourist camp. Automobiles, nation-wide business and multiple family dwelling units have deprived the institution, though not the idea, of its former general fixation to soil and locality. But, beyond this, “home” in the domiciliary sense can be changed in the twinkling of an eye, the time it takes a man to make up his mind to remain where he is when he is away from home. He need do no more than decide, by a flash of thought, to stay “either permanently or for an indefinite or unlimited length of time.”14 No other connection of permanence is *258required. All of his belongings, his business, his family, his established interests and intimate relations may remain where they have always been. Yet if he is but physically present elsewhere, without even bag or baggage, and undergoes the mental flash, in a moment he has created a new domicil though hardly a new home.

Domicil thus combines the essentially contradictory elements of permanence and instantaneous change. No legal conception, save possibly “jurisdiction,” of which it is an elusive substratum, affords such possibilities for uncertain application. The only thing certain about it, beyond its uncertainty, is that one must travel to change his domicil. But he may travel without changing it, even remain for a lifetime in his new place of abode without doing so. Apart from the necessity for travel, hardly evidentiary of stabilized relationship in a transient age, the criterion comes down to a purely subjective mental state, related to remaining for a length of time never yet defined with clarity.

With the crux of power fixed in such a variable, small wonder that the states vacillate in applying it and this Court ceaselessly seeks without finding a solution for its quandary. But not all the vice lies in the substantive conception. Only lawyers know, unless now it is taxpayers15 and persons divorced, how rambling is the scope of facts from which proof is ever drawn to show and negate the ultimate conclusion of subjective “fact.” They know, as do the courts and other tribunals which wrestle with the problem, how easily facts procreative of conflicting inferences may be marshalled and how conjectural is the *259outcome. There is no greater legal gamble. Rare is the situation, where much is at stake, in which conflicting circumstances cannot be shown and where accordingly conflicting ultimate inferences cannot be drawn.

The essentially variable nature of the test lies therefore as much in the proof and the mode of making the conclusion as in the substantive conception itself. When what must be proved is a variable, the proof and the conclusion which follows upon it inevitably take on that character. The “unitary domicil-jurisdictional fact-permissible inference” variable not only is an inconstant, vacillating pivot for allocating power. It is inherently a surrender of the power to make the allocation.

That effect is not nullified by vague reservation of supervisory intent. For supervision in any case that matters, that is, wherever the issue is crucial, nullifies the test. I think escape should be forthright and direct. It can be so only if the attempt to compromise what will not yield to compromise is forsworn, with the ancient gloss that serves only to conceal in familiar formula its essentially capricious and therefore nullifying character. This discarded, choice then would be forced between the ideas of transiency with due process safeguards and some minimal establishment of more than casual or transitory relations in the new community, giving the newcomer something of objective substance identifying him with its life.

With this choice made, objective standards of proof could apply, for the thing to be proved would be neither subjective nor so highly variable as inference of state of mind in ambiguous situation always must be. Neither domicil’s sharp subjective exclusions between the old and the new nor its effort to probe the unprovable workings of thought at some past moment, as in relation to the length of time one purposed remaining or whether there was vestigial and contingent intent to return, would be material.

*260With the subjective substratum removed, the largest source of variable and inconstant decision would .disappear. This would be true, whether transiency guarded by due process or some more established but objectively determinable relation with the community were chosen for the standard to turn the existence of power. Either choice would be preferable to the variable which can give only inconstant and capricious effects, nullifying both policies.

If by one choice states of origin were forced to modify their local policies by giving effect to the different policies of other states when crystallized in valid judgments, that would be no more than the Constitution in terms purports to require. And it may be doubted their surrender would be much greater in practical effects than the present capricious and therefore deceptive system brings about.16 If by some more restrictive choice states now free to give essentially transient divorce were required *261to modify that policy for locally valid effects, within the limits of any objective standard that conceivably would be acceptable for constitutional purposes, the obligations they owe to the nation and to sister states would seem amply to justify that modest curtailment of their power. It is hard to see what legitimate substantial interest a state may have in providing divorces for persons only transiently there or for newcomers before they have created, by reasonable length of stay or other objective standards, more than fly-by-night connections.

I therefore dissent from the judgment which, in my opinion, has permitted North Carolina at her substantially unfettered will to deny all faith and credit to the Nevada decree, without in any way impeaching or attempting to impeach that judgment’s constitutional validity. But if she is not to be required thus to give the faith and credit due, in my opinion she should not be allowed to deny it by any standard of proof which is less than generally is required to overturn or disregard a judgment upon direct attack. Cf. Schneiderman v. United States, 320 U. S. 118. The solemnity of the judicial act and the very minimum of “respect” due the action of a sister state should compel adherence to this standard, though doing so would not give the full faith and credit which the Constitution commands. To approximate the constitutional policy would be better than to nullify it.

Cf. text infra Part I.

Presumably it would be our function “to retry the facts” no more if the Nevada decree were immediately under challenge here than it is to do so when the North Carolina judgment is in issue. It would seem therefore that we owe the same deference to Nevada’s finding of domi-cil as we do to North Carolina’s. Cf. text at note 4 et seq.

The record indicates that Mr. Hendrix “had brought no divorce proceeding against the feme defendant prior to the first trial of this *245cause, . . . but that he has since and remarried.” Although the evidence shows institution of this proceeding, it does not show a decree was entered prior to his remarriage. Whether or not he actually relied upon the Nevada decree, thousands of spouses so divorced do so rely, thus founding new relations which are equally subject to invalidation by jury finding and are always beclouded by a judgment like that rendered in this case.

Cf. text at notes 2, 5, 7, 9, 11 et seq.

The Nevada court knew that petitioners recently had come from North Carolina, resided in tourist quarters, an auto court, and by inference at least that they had come together. There was in the facts sufficient basis for conclusion that they had no “bona fide” intention of remaining permanently or indefinitely, after the decrees were rendered, if the court had wished to draw that conclusion. Credibility in such circumstances is always for the trier of fact. Worcester County Trust Co. v. Riley, 302 U. S. 292, 299; Burbank v. Ernst, 232 U. S. 162, 164.

Haddock v. Haddock, 201 U. S. 562, 572.

The case was not tried on any theory that Nevada’s court was defrauded or her law evaded. No effort was made to bring it within that well recognized exception to the binding effect of judgments generally. United States v. Throckmorton, 98 U. S. 61; Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399. Nor is that ground asserted here to support the denial of credit. It was not suggested, and is not now, that Nevada either would, or could be required to, set aside her judgment or reach a different result, upon the evidence this record presents; or that she now is bound to give full faith and credit to North Carolina’s decision. Nor has it been contended that the Nevada evidence was not adequate to support her finding.

Petitioners’ motion for judgment by nonsuit, which the court denied, was grounded in part upon the absence of evidence of fraud upon the Nevada court or law and alleged incompetence of such evidence if tendered. They also objected to the portions of the charge which submitted the issue of “bona fide domicil” without reference to the effect of the evidence as tending to vitiate the Nevada decree. “Bona fides” is inherently an element in domiciliary intent. Merely adding the phrase as qualifying adjective does not raise an issue of fraud. For this reason, founded in the state of the record, the Court eschews grounding the decision upon fraud or collusion.

Cf. Cochrane v. Deener, 95 U. S. 355; United States v. Maxwell Land-Grant Co., 121 U. S. 325, 381; United States v. San Jacinto Tin *251Co., 125 U. S. 273, 300; Lalone v. United States, 164 U. S. 255; United States v. American Bell Tel. Co., 167 U. S. 224. See 9 Wigmore, Evidence (3rd ed.) § 2498.

Cf. note 5.

Cf. Commissioners of Marion County v. Clark, 94 U. S. 278, 284; Jones v. East Tennessee, V. & G. R. Co., 128 U. S. 443, 445; Tiller v. *252Atlantic Coast Line R. Co., 318 U. S. 54, 68; Bailey v. Central Vermont R. Co., 319 U. S. 350, 353, 354; Tennant v. Peoria & P. U. R. Co., 321 U. S. 29, 35; 9 Wigmore, §2494.

Cf. note 16,

Cf. Milwaukee County v. M. E. White Co., 296 U. S. 268; Titus v. Wallick, 306 U. S. 282; Texas v. Florida, 306 U. S. 398, 410.

Citation of authority is hardly needed for reference to the difficulties courts have encountered in the effort to define this intent. “Animus manendi” is often a Latin refuge which succeeds only in evading, not in resolving, the question with which Job wrestled in his suffering.

Cf. Tilt v. Kelsey, 207 U. S. 43; Iowa v. Slimmer, 248 U. S. 115; Worcester County Trust Co, v. Riley, 302 U. S. 292; Texas v. Florida, 306 U. S. 398; Sweeney v. District of Columbia, 113 F. 2d 25, cert. denied, 310 U. S. 631. Compare District of Columbia v. Murphy, 314 U. S. 441, with District of Columbia v. Pace, 320 U. S. 698. See 121 A. L. R. 1200; Tweed and Sargent, Death and Taxes Are Certain — But What of Domicile? (1939) 53 Harv. L. Rev. 68.

The residence requirements of the states for absolute divorce vary depending at times on the ground for divorce relied on, the place where the cause of action arose, or other factors. Speaking generally, approximately 33 states require one year’s residence in most divorce actions. Nine states are more severe, 7 of these requiring 2 years’ residence and two a longer period. Six states are less severe. Of these North Carolina at present requires a 6 months’ residence and the others six weeks to three months. See Warren, Schouler Divorce Manual (1944) 705-720. Thus, practically speaking, 39 states require one year or less, only 9 longer.

It seems questionable, at any rate, that the grounds for divorce as such have “jurisdictional” significance. Presumably, if length of residence is the controlling factor, all of the states would be required to give effect to divorces granted by the 42 requiring one year or longer, unless the greatly preponderant legislative judgment is to be disregarded. The permissible denial accordingly would extend at the most to decrees granted by the six states requiring less than one year. It is difficult to see how greatly disruptive effects would be created for them or for the other states by requiring them to approximate the generally prevailing judgment as to the length of the period appropriate for granting impeccable divorce.