350
THE GREEN BAG
both the degree of extraterritorial effect, the impingement upon and affecting of the status of the person in fact permanently located in another state was the same. The only difference between the cases seems to be that in the Atherton case the wife had at one time been in fact domiciled in the state granting the divorce, and in the Haddock case she had not. The reason, however, upon which the right to grant a divorce is based is, as the court pointed out in the Andrews' case (ante) the interest and necessary control that a state must have as to the status of persons composing it, citizens as distinguished from those temporarily sojourning therein. If the hus band and wife have their matrimonial domi cile in New York and then separate, she going to Massachusetts and he to Connecti cut, and they there settle down and become members of the respective communities, the state where each is domiciled has just as much interest in and, it is submitted, ought to have just as much power to affect the status of that person as though he or she had lived there from the beginning of their married life. If one of them remains in New York the real reason why New York ought to be able to speak in regard to that one's status is not because they both have lived there but because that one is living there. Why the mere fact that the wife had at one time been domiciled in the state where the husband is still domiciled should determine the right of the court to find conclusively that she still was in legal theory there domiciled is not clear. Is the case then to be regarded as prac tically if not technically overruling the Atherton case? As already pointed out the court professes no such intention and it is possible to make a distinction between them. But it is submitted that there is a .funda mental difference in the principles under lying the two cases. The Atherton case expressly says (181 U. S., at 162, 163) that the rule as to notice in divorce suits is dif ferent from that in suits in personam. It
cites with approbation cases where divorce decrees granted by states where only one of the parties was domiciled were sustained and enforced elsewhere as against the other spouse, and it is believed that the gist of the case is embodied in the following language (page 162). "The marriage tie when . . . dissolved as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law." That is to say: The husband being domiciled in Connecticut that state must necessarily and inherently have the power to fix the status of one of its own citizens. If it does so and by a proper decree declares him to be an unmarried man he thereupon becomes such, not only in Connecticut but elsewhere. But to say that he is unmar ried necessarily means that he has no wife; for the court of another state to attempt in one breath to say that he is unmarried and in the next to proceed with a divorce suit against him by a plaintiff who can have a locus standi only on the theory that she is still his wife is to attempt to combine two necessarily conflicting ideas. As to the rule laid down in the Haddock case, on the other hand, it is not entirely clear whether any effect need be given to the Connecticut decree outside the state. The older New York view as laid down in Baker v. Baker, 76 N. Y., 78 (1879) was that the New York court would recognize the right of the state where the husband was domiciled to fix his status and would respect it as so established even in New York, that is, would treat the husband as single while they still regarded the wife as married. The unfortunate complications that might readily result from such a view are obvious; but the New York courts in claiming to control absolutely the status of their own citizens recognized a logically similar right on the part of other jurisdictions. In the present case it is not clear that the court considered that the decree would be entitled to any weight in New York. The court savs :
