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(91 Conn. 608; 101 Atl. 13.) ciple, triumphed in Le Mesurier v. to agree that a decree of separation Le Mesurier.”

does not affect the marital status. On the other hand, it was said in “In our mind the judgment of Armytage v. Armytage, L. R. (1898] separation from bed and board is P. 178, that jurisdiction in a suit not a final proceeding. The relafor judicial separation need not be tion of husband and wife still exists. referred to the legal domicil of the A reconciliation may put an end to parties, but that the action might the judgment." State ex rel. Stuart be maintained in and a decree of v. Ellis, 50 La. Ann. 559, 23 So. 445. separation granted by the courts of “Such a divorce does not dissolve the place where the parties resided, the marriage, though it separates though that was not their legal dom- the parties and establishes separate icil. Incidentally the question interests between them.

The whether the decree of separation divorce is only a legal separation, affects the status was discussed. terminable at the will of the parties, And in speaking of the ecclesiastical the marriage continuing in regard to divorce a mensa et thoro, the court everything not necessarily withsaid (p. 196): A woman divorced drawn from its operation by the difrom her husband a mensa et thoro vorce.” Dean v. Richmond, 5 Pick. and living separate and apart from 461. her husband remained a feme co- "The decree of divorce a mensa et vert. "The effect of the sentence thoro between these parties did not was to leave the legal status of the affect their status of marriage; it parties unchanged."

merely justified their separation." The court then discusses the ques

Drum v. Drum, 69 N. J. L. 557, 55 tion of whether the Act of 1857,

Atl. 86. which had the further effect of plac- “The parties still remained husing a wife, after a decree of judicial band and wife in the eye of the law.

An action for a limited disole in certain respects, had changed vorce is really an appeal to a court the situation so that a decree of sep

of equity by one of the parties to a aration did affect status, and reaches marriage contract for a modificathe conclusion that the decree of tion of the marriage relations, duseparation does not affect status in ties, and obligations as they exist the sense that it can only be granted

at common law." People ex rel. in the courts of the legal domicil. Public Charities & C. Comrs. v. CulIn the present case it does not ap- len, 153 N. Y. 629, 44 L.R.A. 420, 47 pear that the New York sentence of N. E. 894. . separation produced any change at

“The relation of husband and wife all in the wife's legal capacity or

is not dissolved. It only undergoes property rights, and so, according a very inconvenient suspension and to the English view, it stands on the

which is intended to operate as a same basis as the old ecclesiastical continual invitation to the parties divorce a mensa et thoro, and does to return to their first love." Channot affect status.

cellor Kent, Barrere v. Barrere, 4 In this country there has been

Johns. Ch. 187-197. some conflict of opinion upon the

Independently of authority, a point, which in England was cov

decree that simply creates a terminered by the act of Parliament, as to

able abnormal relation between hus. whether a divorce a mensa et thoro

band and wife cannot be said to afrelieved the wife, temporarily, from fect the underlying marital status. the disabilities of coverture; but, At any rate, we give to this decree with the possible exception of West of separation all the effect the New Virginia, where a peculiar force and York courts claim for it when we effect is apparently given to such treat it as a temporary or at least divorces by the special provisions of a terminable modification of the pertheir Code, the reported cases seem sonal rights and obligation of the

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parties arising out of the marriage ties, an ex parte decree for judicial contract, without the slightest in- separation is necessarily local in its tention of rescinding the contract it- operation on the nonappearing deself. It leaves the contract and the fendant. permanent contractual relation un- The state of New York has no touched, and it excuses one of the right to regulate, and we do not supparties from the obligation of co- pose this decree attempts to reguhabitation, while still holding the late, the manner in which the nonother party to the performance of resident,

resident, nonappearing

nonappearing husband his other contractual duties. Such should conduct himself toward his a decree must rest on the jurisdic- wife in Connecticut. The decree tion of a court of equity to regulate does not purport to authorize or rethe conduct of the parties before it. quire Mr. and Mrs. Pettis to live From the wife's standpoint it is a in Connecticut in a state of marital personal license to refuse to live celibacy unknown to our law. It with her husband. In theory, a merely purports to afford the wife a court of equity intervenes to protect local protection against the asserher against the assertion of a legal tion by her husband of his right of right on the part of the husband on cohabitation. And, if we assume the ground that it is unsafe and im- that in spite of its ex parte character proper to require her to submit to it accomplishes that purpose, we cohabitation. From the husband's give it all the effect, so far as Mr. standpoint, he is, in effect, prevented Pettis is concerned, which can be from exercising his right to cohabit- claimed for it. ation, although, as Chancellor Kent

We have thus shown that a decree

a says, the right of cohabitation is not of judicial separation does not affect destroyed, but is merely suspend- status; that it is not

-jadicial ed; and in theory a court of a final decree, but is separationequity assumes the right to control terminable at any his conduct for the time being for time by the reconciliation of the the protection of his wife.

parties; that it rests upon the jurisSuch being the nature and effect diction of equity to control the conof the decree when both of the par- duct of parties before it, and that, ties are before the court, it is dif- in so far as it purports to regulate ficult to see upon what theory any the conduct of a defendant not withextraterritorial ef

in its jurisdiction, it is necessarily Judgment

fect can be claimed local in its operation. Such a dejustification for the decree as

cree has no resemblance to a judgagainst a nonresi

ment in rem. It is purely personal, dent, nonappearing defendant, not

and therefore, as against a nonresiserved with process. When both parties are before the

dent, nonappearing defendant, en

titled to no extraterritorial effect, court, the decree is conclusive as to the issues of fact upon which it is

by way of comity or otherwise. based. Harding v. Harding, supra.

There is no error. But, in so far as it attempts to regu- The other judges concur, except late the future conduct of the par- Wheeler, J., who dissents.



of desertion.


Extraterritorial recognition and effect of divorce a mensa et thoro.

It will be observed that the court in the reported case (PETTIS V. PETTIS, ante, 852) was not only of the opinion that, New York not being the matrimonial domicil of the parties, the de

cree of divorce a mensa et thoro, ren. dered in that state upon constructive service of process upon the husband, a nonresident, who did not appear, was not within the full faith and credit

provision of the Federal Constitution, but also held that it would not, even as a matter of comity, be recognized in Connecticut as a justification for the wife continuing to live apart from her husband, so as to prevent the husband from obtaining a decree of divorce in Connecticut upon the ground of the wife's desertion. The opinion, in effect, concedes that, the other circumstances being the same, the New York decree would have been recognized in Connecticut as a matter of comity, if it had been a decree a vinculo rather than one a mensa et thoro. The court takes the position that as a decree of divorce a mensa et thoro does not affect the status of the parties, it cannot be regarded as a decree in rem or quasi in rem, but must be regarded as a personal decree, which cannot be recognized in another state even as a matter of comity, unless it was based on personal jurisdiction over the defendant, either by personal service within the state or by defendant's appearance.

Some doubt is cast upon the correctness of the premise of this conclu. sion,--that is, the correctness of the position that a divorce a mensa et thoro is necessarily in personam and must therefore rest upon jurisdiction of the person of defendant, and cannot partake of the nature of a decree in rem, which may rest on constructive service—by the case of Thompson v. Thompson (1913) 226 U. S. 551, 57 L. ed. 347, 33 Sup. Ct. Rep. 129 (affirming (1910) 35 App. D. C. 14) which held that a decree of divorce a mensa et thoro, rendered in Virginia, the matrimonial domicil, in favor of the husband upon constructive service of process upon the wife, who had left the jurisdiction, was entitled to full faith and credit under the Federal Constitution and statutes, and was a bar to a suit by the wife in the District for maintenance. It is true that, the divorce a mensa having been rendered at the matrimonial domicil, the case is distinguishable from the reported case so far as the duty to recognize the decree under the full faith and credit provision is concerned. In other words, the facts of the Thomp

son Case, apart at least from the fact that the foreign decree was a mensa and not a vinculo, brought it within the doctrine of the Atherton Case (Atherton v. Atherton (1901) 181 U. S. 155, 45 L. ed. 794, 21 Sup. Ct. Rep. 544), and therefore within the full faith and credit provision, whereas the facts of the reported case apparently brought it within the doctrine of the Haddock Case (Haddock v. Haddock (1906) 201 U. S. 562, 50 L. ed. 867, 26 Sup. Ct. Rep. 525, 5 Ann. Cas. 1), so that, under the present condition of the authorities, at least, it would not come within the full faith and credit clause, even apart from the fact that it was a mensa and not a vinculo. Apparently, however, the theory upon which the doctrine of the Atherton Case proceeds is that a decree of divorce may be regarded as one in rem or quasi in rem, so that it may rest upon constructive service of process upon

nonresident who does not appear. Although the decree involved in that case was an absolute decree, and not a decree a mensa, the Thompson Case in applying the doctrine of the Atherton Case to a decree a mensa apparently assumed that a decree a mensa is not necessarily, from its nature, in personam. The opinion in the Thompson Case, however, though it in another connection mentions the fact that the Virginia decree was a mensa, and not a vinculo, does not discuss, or even suggest, the question as to whether there is any distinction between a decree a mensa and a decree a vinculo so far as its character as a decree in rem or its recognition in other states under the full faith and credit clause is concerned. It is further to be observed that the views of the United States Supreme Court as to the character of such a decree would not be binding upon a state court when, as in the reported case, the facts are not otherwise such as to bring it within the full faith and credit provision, and its recognition depends upon the principles of comity.

In Barber v. Barber (1859) 21 How. (U. S.) 582, 16 L. ed. 226, a suit in a Federal district court in Wisconsin to enforce an alimony provision of a de

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cree of divorce or separation a mensa band, adjudging in effect that the wife et thoro, rendered by a court of New had always behaved herself properly York which had personal jurisdiction towards the husband, but that on a of the parties, the court, without certain day, and on divers days and drawing any distinction in this regard various times and frequently since between a decree a vinculo and a de- that day, the defendant had treated cree a mensa, declared generally that lier with extreme cruelty and had re"such a judgment or decree rendered fused her proper and sufficient supin any state of the United States, the port and maintenance. In a suit in court having jurisdiction, will be car- Maine by the husband against the wife ried into judgment in any other state, for divorce a vinculo, the trial court to have there the same binding force held that the Massachusetts decree that it has in the state in which it was conclusively established the fact that originally given,” and affirmed a de- on the date named in that decree the cree of the district court, sitting as a husband had treated the wife with court of equity, enforcing the alimony extreme cruelty, as alleged in the comprovision of the New York decree. plaint, and that she had at the date of There was a further recognition of that libel been refused proper and sufthe New York decree in this case by ficient support and maintenance, but holding that it had the effect to per- admitted other evidence of the hus. mit the wife to acquire a separate band's conduct toward the wife and of domicil in Wisconsin and to maintain the wife's conduct toward him prior a suit there without joining the hus- to the time of the separation in Massaband. In this case, it will be observed,

chusetts. This was held error on apunlike the PETTIS CASE and the Thomp- peal, the appellate court taking the son Case, the court which rendered view that the Massachusetts decree the decree a mensa had personal juris- was conclusive between the parties as diction over the defendant.

to their conduct up to the time of the In Harding v. Harding (1905) 198 date of that decree. In reply to the U. S. 317, 49 L. ed. 1066, 25 Sup. Ct. citation of the case of Sheafe v. Sheafe Rep. 679, it was held that an Illinois (1852) 24 N. H. 564 (which affirms decree in favor of the wife in a suit that where the same court which has for her separate maintenance, under once heard a case of divorce is prothe Illinois statute authorizing such

ceeding under statutory authority to relief where the wife is living sepa

revise its own decree therein, the evirate and apart from the husband with

dence also may be reconsidered and out her fault, was conclusive upon the

evidence heard tending to exculpate husband in the courts of California on

the party against whom the decree the issue whether the separation upon

passed), the court said that that case which that decree was based consti

could not be deemed an authority tuted a wilful desertion on her part,

which would justify another court, and that the California courts violated

having no power conferred by statthe full faith and credit provision in

ute to revise decrees of this sort refusing to give it such effect as a bar

passed by the courts of other states, to a suit in the latter state for deser

in admitting evidence upon the very tion based upon the same separation points which had been previously litiIn this case also the Illinois decree gated and determined between the rested upon personal jurisdiction over parties before another tribunal, whose the defendant so that there was no doings are entitled to full faith and question as to the effect of such a de- credit, and added it was the statucree rendered upon constructive serv- tory power to revise the decree which ice of process against a nonresident. authorized the re-examination of the

In Slade v. Slade (1870) 58 Me. 157, testimony in the Sheafe Case, and a decree of divorce a mensa et thoro if the libellant in the case at bar was rendered in Massachusetts upon desired such a revision as that, he a libel by the wife after personal serv- should apply to the court which heard ice upon and appearance by the hus- the original case.

In Van Orden v. Van Orden (1899) judgment in the cause, was not enforce58 N. J. Eq. 545, the court in affirm- able in West Virginia even as to ining an order which maintained a bill stalments for such alimony due and praying that the defendant be com- unpaid, was upon the ground that the pelled to pay the money awarded to judgment was not a final one and for the plaintiff by a decree of divorce a that reason was not enforceable, in mensa et thoro, rendered in New York, view of the New York statutory provisaid: "The bill is, in substance, one sions and their interpretation by the for alimony, the New York decree be

courts of that state, under which such ing merely the evidence (whether

an order is wholly discretionary as to conclusive or not we need not now de

its enforcement with the New York cide) of her right thereto." In this

court, so that it may be wholly set case, also, the New York court seems

aside so as to destroy the right to the to have had personal jurisdiction of

accrued and unpaid instalments. The both parties.

court observed that likely the New The decision in Hill v. Hill (1916) 62 Pa. Super, Ct. 439, that a decree of

York court would not, under the cirdivorce a mensa et thoro, rendered in

stances, set it aside; but that was not Michigan by a court having personal

the test, the question being as to its jurisdiction of both parties, would not

power and authority over it. bar a suit for divorce by the wife in

In Vischer V. Vischer (1851) 12 Pennsylvania, was upon the ground

Barb. (N. Y.) 640, one of the earliest, that subsequently to the Michigan de

if not the earliest case, to adopt the cree the parties had become recon

New York doctrine which refuses to ciled and resumed the relation of hus

recognize a decree of divorce rendered band and wife in Pennsylvania, it

upon constructive service against a being assumed, in the absence of evi.

nonresident, the wife, while the pardence to the contrary, that the law of

ties were in New York, had obtained Michigan in that regard was like

a divorce a mensa et thoro in that the law of Pennsylvania by which the

state; subsequently the husband went reconciliation of the parties has the

to Michigan and obtained a decree of effect to restore the marital relation

divorce on a charge of wilful deserand to annul the decree a mensa et

tion, the wife not having appeared nor thoro.

having notice except by publication. The decision in McClung v. McClung

The court held that the decree a mensa (1882) 11 W. N. C. (Pa.) 122, to the

et thoro had the effect to prevent the effect that an allowance of alimony

wife's domicil following the husband's made by a decree of divorce a mensa

when he went to Michigan; but otheret thoro in New Jersey would not sup

wise that decree does not seem to port an action in Pennsylvania, was

have cut any figure in the case, the upon the ground that, the New Jersey

refusal to recognize the Michigan dedecree having been opened, the order

cree, as already stated, having been

on the ground that the court of Michifor alimony to remain as before, that

gan could not under the circumstances order became in effect an interlocutory

acquire jurisdiction on constructive order, which the court making it might

service against a nonresident to renenforce, but which would not support der a decree which a court of New an action in another state. The court

York would recognize. conceded that an action would lie up- In Zavaglia v. Notarbartolo (1915) on a final decree.

137 La. 722, 69 So. 152, Ann. Cas. The decision in Henry v. Henry 1916B, 924, it was held that if it were (1914) 74 W. Va. 563, L.R.A.1916B, otherwise possible for a court of 1024, 82 S. E. 522, that an order of the Louisiana to render a judgment, at New York court, made on a motion the instance of a husband, decreeing a in a suit for separation not matured separation from bed and board in fafor final hearing, granting to the vor of his wife, who had obtained such plaintiff alimony pending suit, and a judgment against him in Italy, where never in any sense carried into final they were both domiciled at the time

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