The defendant wife's former husband Felix Ernest Kaufman in 1954 obtained a divorce from her in a district court at Juarez in Chihuahua, Mexico. Plaintiff and defendant were married in New York in 1956 and this action by the husband seeks to annul that marriage on the ground the 1954 divorce is invalid and that, therefore, the defendant wife was incompetent in 1956 to contract a marriage.
In seeking the divorce in Mexico Mr. Kaufman went to El Paso, Texas, where he registered at a motel and the next day crossed the international boundary to Juarez. There he signed the Municipal Register, an official book of residents of the city, and filed with the district court a certificate showing such registration and a petition for divorce based on incompatibility and ill treatment between the spouses.
After about an hour devoted to these formalities, Mr. Kaufman returned to El Paso. The following day his wife, the present defendant, appeared in the Mexican court by an attorney duly authorized to act for her and filed an answer in which she submitted to the jurisdiction of the court and admitted the allegations of her husband's complaint. The decree of divorce was made the same day. The judgment is recognized as valid by the Republic of Mexico.
The Divorce Law of the State of Chihuahua provides that the court may exercise jurisdiction either on the basis of residence or of submission. Article 22 provides that the Judge "competent to take cognizance of a contested divorce" is the Judge "of the place of residence of the plaintiff" and of a divorce "by mutual consent", the Judge "of the residence of either of the spouses".
For the purposes of article 22, the statute further provides that the residence "shall be proven" by the "certificate of the Municipal Register" of the place (art. 24). Article 23, which has application to Wood v. Wood, provides that judicial competence "may also be fixed" by express or tacit submission.
After a trial at Special Term in the present husband's action for annulment, the court, holding that New York would not recognize the Mexican decree, granted judgment for the plaintiff and annulled the marriage; the Appellate Division reversed this judgment and dismissed the complaint. [*71]
In the background of this problem is a long series of decisions over a period of a quarter of a century in the New York Supreme Court at Appellate Division and at Special Term recognizing the validity of bilateral Mexican divorces which we consider has some relevancy to the question before us. [1]No New York decision has refused to recognize such a bilateral Mexican divorce.
It has been estimated that many thousands of persons have been affected in their family and property status by these decisions (cf. Flint, Divorce by Personal Jurisdiction of the Parties — A Support for the Mexican Bi- lateral Divorce, 29 Albany L. Rev. 328, and Report of the Joint Legislative Committee on Matrimonial and Family Laws, N. Y. Legis. Doc., 1957, No. 32; id., N. Y. Legis. Doc., 1961, No. 19). In this respect the problem in New York differs somewhat from that in New Mexico, New Jersey and Ohio which have as a matter of their own public policy refused to accept as valid such Mexican divorces (Golden v. Golden, 41 N. M. 356; Warrender v. Warrender, 42 N. J. 287; Bobala v. Bobala, 68 Ohio App. 63).
There is squarely presented to this court now for the first time the question whether recognition is to be given by New York to a matrimonial judgment of a foreign country based on grounds not accepted in New York, where personal jurisdiction of one party to the marriage has been acquired by physical presence before the foreign court; and jurisdiction of the other has been acquired by appearance and pleading through an authorized attorney although no domicile of either party is shown within that jurisdiction; and "residence" has been acquired by one party through a statutory formality based on brief contact. [*72]
In cases where a divorce has been obtained without any personal contact with the jurisdiction by either party or by physical submission to the jurisdiction by one, with no personal service of process within the foreign jurisdiction upon, and no appearance or submission by, the other, decision has been against the validity of the foreign decree (Caldwell v. Caldwell, 298 N. Y. 146 [1948]; Rosenbaum v. Rosenbaum, 309 N. Y. 371 [1955]).
Although the grounds for divorce found acceptable according to Mexican law are inadmissible in New York, and the physical contact with the Mexican jurisdiction was ephemeral, there are some incidents in the Mexican proceedings which are common characteristics of the exercise of judicial power.
The former husband was physically in the jurisdiction, personally before the court, with the usual incidents and the implicit consequences of voluntary submission to foreign sovereignty. Although he had no intention of making his domicile there, he did what the domestic law of the place required he do to establish a "residence" of a kind which was set up as a statutory prerequisite to institute an action for divorce. This is not our own view in New York of what a bona fide residence is or should be, but it is that which the local law of Mexico prescribes.
Since he was one party to the two-party contract of marriage he carried with him legal incidents of the marriage itself, considered as an entity, which came before the court when he personally appeared and presented his petition. In a highly mobile era such as ours, it is needful on pragmatic grounds to regard the marriage itself as moving from place to place with either spouse, a concept which underlies the decision in Williams v. North Carolina I (317 U. S. 287; see, especially, Justice Frankfurter's concurrence p. 304).
The voluntary appearance of the other spouse in the foreign court by attorney would tend to give further support to an acquired jurisdiction there over the marriage as a legal entity. In theory jurisdiction is an imposition of sovereign power over the person. It is usually exerted by symbolic and rarely by actual force, e.g., the summons as a symbol of force; the attachment and the civil arrest, as exerting actual force.
But almost universally jurisdiction is acquired by physical and personal submission to judicial authority and in legal theory there seems to be ground to admit that the Mexican court at [*73] Juarez acquired jurisdiction over the former marriage of the defendant.
It is true that in attempting to reconcile the conflict of laws and of State interests in matrimonial judgments entered in States of the United States, where the Constitution compels each to give full faith and credit to the judgments of the others, a considerable emphasis has been placed on domicile as a prerequisite to that compulsory recognition (Williams v. North Carolina I, supra; Michael Cardozo, Divorce Without Domicile, 39 Cornell L. Q. 293, 301). But domicile is not intrinsically an indispensable prerequisite to jurisdiction (cf. Stimson, Jurisdiction in Divorce Cases: The Unsoundness of the Domiciliary Theory, 42 Amer. Bar Assn. J. 222 [1956]; Griswold, Divorce Jurisdiction and Recognition of Divorce Decrees — A Comparative Study, 65 Harv. L. Rev. 193, 228).
The duration of domicile in sister States providing by statute for a minimal time to acquire domicile as necessary to matrimonial action jurisdiction is in actual practice complied with by a mere formal gesture having no more relation to the actual situs of the marriage or to true domicile than the formality of signing the Juarez city register. The difference in time is not truly significant of a difference in intent or purpose or in effect.
The State or country of true domicile has the closest real public interest in a marriage but, where a New York spouse goes elsewhere to establish a synthetic domicile to meet technical acceptance of a matrimonial suit, our public interest is not affected differently by a formality of one day than by a formality of six weeks.
Nevada gets no closer to the real public concern with the marriage than Chihuahua. New York itself will take jurisdiction of a matrimonial action without regard to domicile or residence if it happened, by mere fortuity, that the marriage was contracted here, even between people entirely foreign to our jurisdiction (Domestic Relations Law, § 170, subd. 2; see, e.g., David- Zieseniss v. Zieseniss, 205 Misc. 836; Becker v. Becker, 58 App. Div. 374).
A leading New York decision on the recognition of a divorce granted in a foreign nation where we are under no constitutional compulsion to give full faith and credit is Gould v. Gould (235 N. Y. 14 [1923]) and there the court sustained a judgment of [*74] divorce in France between parties not domiciled in France at a time when the husband, who instituted the French action, was domiciled in New York. Indeed, the New York law was applied by the French court because "the plaintiff Gould" was a resident of New York (p. 21).
The decision is not a clear precedent for the case now at bar; there are differences, e.g., the parties had substantial personal ties with France; the ground for the French divorce was the New York law; and this court laid down a number of precautionary warnings about the scope of its decision and what it was leaving open (pp. 29, 30).
Still the fact is that this court accepted as valid a judgment affecting marital status of a New York domiciliary granted by a court in a foreign nation, without requiring domiciliary status in that nation; and this aspect of the decision does have relevance here since it is not helpful on the question of French jurisdiction that the French court acted on its conception of New York law. It applied New York law for the very reason that Gould was not a domiciliary of France but of New York.
The opinion in Caldwell v. Caldwell (298 N. Y. 146, supra), dealing with divorces obtained on no personal presence or submission by either party in Mexico, the "mail-order decree", discusses domicile, but the question was not decisive of that case (cf. dissenting opinion, Conway, J., Matter of Rathscheck, 300 N. Y. 346, 355).
A balanced public policy now requires that recognition of the bilateral Mexican divorce be given rather than withheld and such recognition as a matter of comity offends no public policy of this State.
The order should be affirmed, with costs.
Although the Mexican decree of divorce in Wood v. Wood was entered under a provision of the Chihuahua Divorce Law (art. 23) which does not require proof of registration as a resident and which allowed jurisdiction to be taken by submission, the personal appearance in Chihuahua before the court of one party and the appearance through a duly authorized attorney by the other require that for the purposes of New York public policy decision in this case be consistent with that in Rosenstiel. [*75]
On the wife's appeal from an affirmance of the dismissal of her complaint for separation based on cruelty, it is enough to say that if the facts as found and affirmed are accepted it was not error as a matter of law to dismiss the complaint.
The order should be affirmed, with costs, to plaintiff.
Although for reasons hereafter stated I would not void past-granted Chihuahua divorces, I emphatically reject the proposition that New York State must continue to recognize these one-day decrees awarded to our residents in manner and on theories repugnant to our basic ideas.
There is no justification in positive law, public policy, natural justice or morals for a validation by this court of the practice of some of the citizens of our State of going to Mexico for divorces of the sort attacked on these appeals. My vote against recognizing them for the future is based on these self-evident propositions:
1. Divorce decrees rendered in foreign countries and purporting to dissolve New York marriages are entitled to recognition and effect in New York State only when such recognition is consistent with the public policy of our State (Gould v. Gould, 235 N. Y. 14, 29; Rosenbaum v. Rosenbaum, 309 N. Y. 371, 375; see Russian Republic v. Cibrario, 235 N. Y. 255, 259; Martens v. Martens, 284 N. Y. 363, 365). The Gould case (supra) is illustrative. There the New York courts upheld a divorce granted in France but only because the parties had actually lived for years in their Paris home and the decree was granted after an actual court contest without collusion and on a ground recognized in New York, that is, adultery.
2. Mexican "bilateral" divorces where one party crosses a bridge from El Paso, Texas, spends a day in Juarez and, by arrangement, the other appears by attorney, followed by a pro forma one-hour court appearance with no real hearing, or persuasive evidence or independent judicial determination lack almost all the elements which New York State considers requisites for a valid divorce. The residence requirements of the State of Chihuahua are minimal and inadequate to form a recognizable domiciliary jurisdictional base since in Mexico and contrary to our views neither spouse need have a true or real [*76] domicile in Mexico (see Williams v. North Carolina, 325 U. S. 226, 229-230; Estin v. Estin, 296 N. Y. 308, 312, affd. 334 U. S. 541). Domicile as the law uses the term means a fixed, permanent and principal home to which a person wherever temporarily located always intends to return (Black's Law Dictionary, 4th ed.).
3. No attention is paid in Juarez divorces to the principle, fundamental with us, that marriage is an institution in which the public as a third party has a vital interest (Fearon v. Treanor, 272 N. Y. 268; Maynard v. Hill, 125 U. S. 190; 2 Bishop, Marriage, Divorce and Separation, § 480). The Mexican State does not concern itself with maintenance of the marriage or reasons for its dissolution. In these latter respects the one-day judgments here attacked differ in no essential respect from the mail-order writs described in Caldwell v. Caldwell (298 N. Y. 146).
4. Such decrees are blatantly and obviously the fruit of consensual divorce arrangements and as such are forbidden by New York public policy statute (now General Obligations Law, § 5-311; see Caldwell v. Caldwell, 298 N. Y. 146, 150, supra; Viles v. Viles, 14 N Y 2d 365).
5. Although there is a line of lower court decisions in the State upholding these "Chihuahua" decrees (e.g., Leviton v. Leviton, 6 N. Y. S. 2d 535, 254 App. Div. 670) they are, so we are told and so it would seem, refused recognition everywhere else (see Warrender v. Warrender, 42 N. J. 287; Golden v. Golden, 41 N. M. 356; Bobala v. Bobala, 68 Ohio App. 63; Bethune v. Bethune, 192 Ark. 811; Griswold, Divorce Jurisdiction and Recognition of Divorce Decrees — A Comparative Study, 65 Harv. L. Rev. 193; 1 Rabel, Conflict of Laws [2d ed., 1958] p. 513). Approval of these lower court decisions puts our State in the uneasy and inappropriate position of sole acceptor of Mexican "quickie" divorces. The suggestion in the majority opinion that these trial court and Appellate Division decisions, together with the fact that Mexico has issued numerous divorces to New Yorkers, plus the fact of advices by New York attorneys to their clients, force this court into a totally wrong public policy is a suggestion that answers itself. We are forgetting that the public policy of this State as to divorce "exists to promote the permanency of the marriage [*77] contracts and the morality of the citizens of the state" (Hubbard v. Hubbard, 228 N. Y. 81, 85).
Of course, it is in the modern manner to shrug off all this, to ask what is the difference between a one-day "domicile" in Juarez and a six weeks' "domicile" in Reno, to pile scorn and ridicule on New York's one-ground divorce law as archaic, cruel or worse. The approach is too facile. For 160 years New York as a State has recognized one cause only for divorce (Domestic Relations Law, § 170) and has refused to approve the practice of its domiciliaries going to other jurisdictions to evade our laws by obtaining divorces after short sojourns and on grounds not cognizable here (Jackson v. Jackson, 1 Johns. 424 [1806]). This official position of our State stands not on mere parochialism but on some of the oldest and deepest-felt sentiments of humanity. As Lord Mansfield wrote long ago: "Matrimony was one of the first commands given by God to mankind after the Creation, repeated again after the Deluge, and ever since echoed by the voice of nature to all mankind." Seventy- seven years ago in Maynard v. Hill (125 U. S. 190, 205, supra) the United States Supreme Court referred to marriage as creating the most important relation in life and as having more to do with the morals of a civilized people than any institution, and pointed out that while marriage is in a sense a contract, it "'partakes more of the character of an institution controlled by public authority, upon principles of public policy, for the benefit of the community'" (Justice Field at pp. 205 and 213 of 125 U. S.). There can be no doubt that this speaks the public policy of our State to be changed only by the people through Constitution or statute. No court is licensed to write a new State policy, however attractive or convenient. As to divorces gotten in other States of the Union we are constrained to recognition by modern constructions of the Federal full faith and credit clause. But when asked to recognize divorces rendered in foreign countries we as a court have neither right nor need to look beyond our own declared and unmistakable State policy (Martens v. Martens, 284 N. Y. 363, 365, supra; Caldwell v. Caldwell, 298 N. Y. 146, supra).
As to analogizing the one-day Mexican divorce to the six weeks' Nevada decree, the first and ready answer is that judgments [*78] from other States are given faith and credit here because the Federal Constitution so commands. The second answer is a substitution of the true analogy, that is, between one-day foreign divorces and post-card foreign divorces, as between which there is no logical or real difference at all (see Warrender v. Warrender, 79 N. J. Super. 114, affd. 42 N. J. 287, supra).
It is suggested, too, that a Juarez divorce is some sort of official "act of State" of a sovereign foreign power and, as such, safe from our scrutiny or ban. That might be so as to Mexico divorcing her own citizens. But our recognition of any foreign judgments is a mere act of official courtesy, implying no surrender of our own sovereignty. There is no compulsion. Were we to give credit to these Mexican judgments we would as a court be turning our backs on New York's restrictive divorce policy and allowing the divorce of our own citizen-residents by a foreign government having no interest in the marriage res.
For these reasons I vote for a declaration that such divorces are void, but I am not bound to and do not vote to give this ruling any more than prospective effect. I cannot shut my eyes to the realities. Tens of thousands of such purported divorces have been granted to New Yorkers who acted on advice of attorneys who relied on 25 years of decisions by the New York lower courts. No social or moral purpose would now be served by ruling that marriages long ago dissolved are still in existence, and the result would be destructive to the present homes, marriage and lives of those who remarried on the strength of Juarez decrees. This court has a clear right to give our ruling prospective effect only (see Lyon v. Richmond, 2 Johns. Ch. 51; Harris v. Jex, 55 N. Y. 421; Great Northern Ry. v. Sunburst Co., 287 U. S. 358; Linkletter v. Walker, 33 U. S. L. W. 4576) and justice and fairness dictate that we should do so and refuse to allow these plaintiffs or others to attack collaterally such past-rendered Mexican "one-day" divorces.
None of the other points made by counsel requires discussion herein.
In each case the order should be affirmed, with costs, but with the clear understanding that divorces of this sort granted after the date of the decision of these appeals will be void in New York State. [*79]
I agree with the Chief Judge inasmuch as he would hold that these divorces are void; however, I would permit the present appellants to succeed on this appeal.
As we analyze the cases in this area, we must be ever mindful that we are not dealing with a decree of a sister State, but with one of a foreign nation. Decrees of a foreign nation are not only not entitled to full faith and credit, but are not even entitled to prima facie validity despite any allegation of jurisdiction which may appear on the face of the judgment (Rosenbaum v. Rosenbaum, 309 N. Y. 371, 375). The sole criterion by which these decrees may be judged is whether they contravene our public policy (Rosenbaum v. Rosenbaum, 309 N. Y. 371, 375, supra).
It is fundamental to our concepts of jurisprudence that a court which purports to act must have jurisdiction over the subject matter of the action. The general rule has become firmly established that jurisdiction over the subject matter of an action for divorce depends upon the domicile of at least one party in the decree rendering forum (Senor v. Senor, 272 App. Div. 306, 310-311, affd. 297 N. Y. 800; Solotoff v. Solotoff, 269 App. Div. 677; see, also, Matter of Lindgren, 293 N. Y. 18, 24).
In Williams v. North Carolina I (317 U. S. 287, 298) the Supreme Court held that domicile of one party creates an adequate relationship with a State to justify its exercise of power over the marital relationship. And in Williams v. North Carolina II (325 U. S. 226, 229-230) Mr. Justice Frankfurter had the following to say about this fundamental concept: "Under our system of law, judicial power to grant a divorce — jurisdiction, strictly speaking — is founded on domicil. Bell v. Bell, 181 U. S. 175; Andrews v. Andrews, 188 U. S. 14. The framers of the Constitution were familiar with this jurisdictional prerequisite, and since 1789 neither this Court nor any other court in the English-speaking world has questioned it. Domicil implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. The domicil of one spouse within a State gives power to that State, we have held, to dissolve a marriage wheresoever contracted. In view of Williams v. North Carolina, supra, the jurisdictional requirement of domicil [*80] is freed from confusing refinements about 'matrimonial domicil,' see Davis v. Davis, 305 U. S. 32, 41, and the like."
Relying heavily on Williams II, the Third Circuit (per Goodrich, J.) held that domicile is the indispensable element of divorce jurisdiction (Alton v. Alton, 207 F. 2d 667, 677, judgment vacated and the proceeding dsmd. as moot 347 U. S. 610).
To characterize one as a "domiciliary" is to clothe him with the strongest possible ties to a jurisdiction. However, this court has held that domicile, in a strict sense, is not required before a foreign nation may render a divorce decree affecting our citizens (Gould v. Gould, 235 N. Y. 14) [2]In that case, husband and wife, New York domiciliaries, moved to France, purchased a house and dwelt there for five years. After this period, the husband brought suit for divorce in France on the ground of adultery, and judgment in his favor was rendered by the French court, applying New York law. On a motion for judgment on the pleadings in an action for divorce by the wife in New York, this court, carefully limiting itself to the circumstances of the case, held that Special Term was correct in declaring that the French decree did not offend our public policy and was entitled to recognition under rules of comity (p. 29). The court (per Hogan, J.) emphasized the undisputed fact that the parties had established a bona fide residence in France, and, in the concluding paragraph of the opinion, took pains to note: "If in the instant case the judgment of the courts of France disclosed that the parties were merely sojourning in France at the time the decree of divorce was granted, or that a residence in France was of such limited duration as to lead the Supreme Court to believe that the decree was the result of collusion, or the judgment was rendered for a cause not recognized as sufficient cause for absolute divorce by the law of this State, it may be that the justice presiding would be justified in holding that the decree was contrary to the policy of this state and in a refusal to give effect to the evidence sought to be established thereby. We leave those questions open." (Gould v. Gould, 235 N. Y. [*81] 14, 29-30, supra). It is obvious, therefore, that New York requires that there be a relationship of substantial permanence between the decree rendering nation and the subject matter of the action, the marital res. Lack of jurisdiction over the subject matter of a controversy cannot, of course, be cured by the mere personal appearance of the parties (Matter of Lindgren, 293 N. Y. 18; Solotoff v. Solotoff, 269 App. Div. 677).
Would the public policy of our State be served by departing from that well-established rule? I do not believe so. Illustrative of the many cases emphasizing the vital stake which the State has in every marriage contract is Fearon v. Treanor (272 N. Y. 268) wherein this court stated (pp. 272-273):
"Marriage is more than a personal relation between a man and woman. It is a status founded on contract and established by law. It constitutes an institution involving the highest interests of society. It is regulated and controlled by law based upon principles of public policy affecting the welfare of the people of the State. 'Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the Legislature. That body prescribes the age at which parties may contract to marry, the procedure of form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.' (Maynard v. Hill, 125 U. S. 190, 205.)
"There are, in effect, three parties to every marriage, the man, the woman and the State. (Trammell v. Vaughan, 158 Mo. 214.) * * * The Domestic Relations Law provides in great detail when and how marriage may be entered into, how the relation may be dissolved, the grounds for divorce and annulment, the rights and liabilities of husband and wife, the age at which the relation may be entered into and the class of persons who are disqualified from marrying.
"From time immemorial the State has exercised the fullest control over the marriage relation, justly believing that happy, successful marriages constitute the fundamental basis of the general welfare of the people." [*82]
In addition, Justice Douglas in Williams v. North Carolina I (317 U. S. 287, 298-299) stated: "Each state as a soverign has a rightful and legitimate concern in the marital status of persons domiciled within its borders. The marriage relation creates problems of large social importance. Protection of offspring, property interest, and the enforcement of marital responsibilities are but a few of commanding problems in the field of domestic relations with which the state must deal. Thus it is plain that each state, by virtue of its command over its domiciliaries and its large interest in the institution of marriage, can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent."
Faced with this overwhelming interest of the State in the marital relationship, an interest which our State still maintains even in a "highly mobile era", we should not discard the rule that jurisdiction over the subject matter of a divorce action requires a substantial relationship between the decree rendering jurisdiction and the marital res.
It is anomalous, indeed, that we are today upholding a one-day Mexican divorce decree while several of our sister States, which afford grounds for divorce not afforded by us, have refused to recognize such a decree. As recently as 1963, New Jersey, in Warrender v. Warrender (79 N. J. Super. 114, affd. on opn. below 42 N. J. 287), declared that a decree of divorce rendered in Juarez upon the personal appearance of the plaintiff and appearance by attorney of the defendant was void. The court observed that "there is no basis for according greater recognition to a Mexican divorce on a one-day appearance than to the mail-order variety" (79 N. J. Super. 118).
In 1940 the Ohio Court of Appeals had occasion to rule on the bilateral Mexican divorce (Bobala v. Bobala, 68 Ohio App. 63). Having analyzed the problem along the lines of subject matter jurisdiction, concluding that the Mexican court was not possessed of such jurisdiction, and determining that the consent of the parties could not confer it, the court held that comity would not be extended. [3][*83]
Professor Rabel observes that in spite of the many concepts of jurisdiction which the different systems of jurisprudence espouse, one condition required by all when they concern themselves with the recognition of foreign judgments of divorce overshadows all differences, "viz, that the court of judgment must have had jurisdiction in the international sense, i.e., according to the conceptions of the forum where recognition is sought" (1 Rabel, The Conflict of Laws: A Comparative Study [2d ed., 1958], p. 531). This court has unequivocally embraced the principle of jurisdiction in the international sense when we required the invocation of the jurisdiction of a foreign court "as we understand those terms" (Caldwell v. Caldwell, 298 N. Y. 146, 150). In that case we held that where neither spouse was before the court, a divorce rendered by a Mexican court which had acquired personal jurisdiction over both parties by virtue of the appearance of two properly empowered Mexican attorneys was void. However, I cannot emphasize too strongly that the decree was valid in Mexico. In other words, a decree may be valid where rendered yet not be entitled to recognition in New York, if it offends our public policy. (Caldwell v. Caldwell, 298 N. Y. 146, supra.)
As this court noted in Caldwell (p. 150): "There is not even the slightest semblance or color of jurisdiction justifying action by a court. The spouses here never submitted themselves to nor invoked the jurisdiction of a court of a foreign nation as we understand those terms. They violated our statute embodying our public policy (Domestic Relations Law, § 51). Their collusive agreement and conduct may not be the foundation for the creation of any rights." (Emphasis supplied.)
Since we in New York recognize the acquisition of personal jurisdiction by the personal appearance of a properly authorized attorney, and since Caldwell unequivocally denounces the lack of jurisdiction "as we understand those terms", that case must, of necessity, denounce the lack of jurisdiction ("as we understand those terms") over the subject matter of the action, i.e., the marital res, as fatal.
Therefore, under the well-grounded concepts of jurisdiction over the subject matter, and jurisdiction in the international sense as delineated by Rabel and as embraced by this State (until today) in Caldwell (supra), and relying upon Caldwell [*84] itself, I would hold that it is against the public policy of New York to recognize the divorce decree of a foreign nation when such decree is not based upon jurisdiction over the subject matter, i.e., when there is no relationship of any degree of permanence between the marital res and the decree rendering jurisdiction. Obviously, the interest and concern which New York has in the marriage of its citizens are infinitely greater than Mexico's. I am unwilling to hold that, although our public policy is violated when a husband and wife execute powers of attorney and mail them to Mexican attorneys, it is not violated when one spouse, armed with the other's power of attorney, makes a momentary physical appearance in Juarez, which, in the language of the majority, is nothing more than "ephemeral".
I am convinced that, with the decision in this case, this court has rekindled the spark still burning in the breasts of some that so-called Mexican mail-order decrees may one day be recognized as valid in this State. I agree with the Chief Judge that there is no distinction of substance between mail-order decrees and the decrees which have received the stamp of approval in the cases before us. Indeed, if the Mexican courts are jurisdictionally empowered to sever the matrimonial bonds of New York residents upon what the majority concedes to be a most flimsy jurisdictional basis, I fail to see why they are not jurisdictionally empowered to sever those bonds by mail with the virtue at least of its resultant economic benefit of avoiding the necessity of even a one-day trip.
In the briefs, great reliance was placed upon the following statement in Matter of Rhinelander (290 N. Y. 31, 36-37): "It is no part of the public policy of this State to refuse recognition to divorce decrees of foreign states when rendered on the appearances of both parties, even when the parties go from this State to the foreign state for the purpose of obtaining the decree and to obtain it on grounds not recognized here. (Glaser v. Glaser [276 N. Y. 296], supra, p. 302.)" This statement can afford the respondents little comfort because it does not address itself to the situation, as in the case at bar, where the rendering court lacks subject matter jurisdiction as we know it. Once such jurisdiction is posited, the statement is true. The citation to Glaser v. Glaser (276 N. Y. 296) bears out this view because, in Glaser, the New York trial court found as a fact that defendant " 'duly [*85] became a resident of the State of Nevada' " (p. 299), thus giving Nevada a jurisdictional predicate upon which to act.
In my opinion, recognition should not be given to the decree of any foreign country affecting the marital status of New York domiciliaries where the plaintiff in the decree granting country did not and never intended to sever his ties with this State unless, as in Gould (supra), he had very substantial ties in that country. I say this not because I feel that there is anything sacred about the concept of domicile, but because I feel that there is something sacred about marriage; and because I feel that no foreign country has, or should be recognized as having, the power to dissolve such a relationship between New York citizens when, in no inconsiderable number of cases, the irreparably destructive effects of such dissolution are to be borne in part by all of the people of this State and because I feel that the public policy of this State, which has remained unchanged these many years, absolutely compels us to refuse to acknowledge the existence of such power in any foreign country.
I agree with the majority that "our public interest is not affected differently by a formality of one day than by a formality of six weeks" and that "Nevada gets no closer to the real public concern with the marriage than Chihuahua" (p. 73). But — and this distinction is crucial — in the case of a sister State we are compelled to give full faith and credit to its decrees. In the case of a foreign country we are not compelled to do so and should not voluntarily recognize its decrees.
So-called "realities of life" and "contemporary experience", assuming that such considerations may be accurately assessed, which I doubt, are not reliable bases for determining public policy. That some, perhaps many, choose to treat their marriage contract with the same indifference that they would a commercial contract does not mean that we should indorse such conduct.
In addition to abandoning the requirement that a court which affects the marital status of our citizens should have subject matter jurisdiction, the majority has chosen to ignore the basic concepts and value judgments which permeate our Domestic Relations Law. The Legislature has seen fit to permit divorce in this State only because of the adultery of the defendant (Domestic Relations Law, § 170). This is certainly indicative [*86] of a design to restrict the availability of divorce and in so doing to preserve the family unit. Such preservation is considered vital and indispensable to the welfare and stability of the family, the ultimate goal being a climate conducive to the better development of our society. This court has a duty not to sanction the casual and consensual dissolution of the marriage contract by two of the three parties interested therein. This is especially true in light of the clear public policy announced in section 5-311 of the General Obligations Law, and in Viles v. Viles (14 N Y 2d 365). To recognize these divorces is to disregard the traditionally solemn nature of the marriage contract (see Fearon v. Treanor, 272 N. Y. 268, supra), legislative pronouncements (e.g., Domestic Relations Law, § 170; General Obligations Law § 5-311), and decisions of this court (e.g., Viles v. Viles, supra; Caldwell v. Caldwell, 298 N. Y. 146, supra).
I am fully aware that a vast number of our citizens, relying upon the pronouncements below, have remarried, established families, acquired property, and engaged in many activities, personal and financial, as husband and wife. To accord this decision traditional retroactive effect would indeed have a profoundly convulsive and disruptive effect on our State, and on our citizens, who acted in good faith reliance on the law as enunciated below. However, to hold this divorce valid merely because our lower courts have been recognizing similar ones as such, and because many have placed reliance on those decisions, is no answer to the public policy considerations presented in this case. If this divorce is void, we should say so regardless of these prior decisions in our lower courts. [4]Nonetheless, I also recognize that there are public policy considerations which should be taken into account concerning parties who have already obtained such divorces in reliance upon those decisions. Therefore, again as a matter of public policy, I would hold that, although Mexican divorce decrees of this type are void, this decision should not be applied retroactively. It is certainly within our power as the highest court in the State to give a decision such effect and not violate the Federal Constitution (Great Northern Ry. v. Sunburst Co., 287 U. S. 358, 364). I [*87] point out that this is a case where there are overriding and compelling reasons of public policy for refusing to give retrospective effect. I note that no one is being injured and no established rights are being impaired by such a disposition.
The doctrine of prospective application is a device which I believe should be invoked only in the most compelling circumstances. Such circumstances are here presented. The doctrine has been applied in Michigan (Parker v. Port Huron Hosp., 361 Mich. 1), when the court renounced charitable immunity for non- profit hospitals, noting: "we believe the new rule should apply to the instant case and to all future causes of action arising after September 15, 1960, the date of the filing of this opinion" (361 Mich., p. 28). The Illinois court had occasion in Molitor v. Kaneland Community Unit Dist. No. 302 (18 Ill.2d 11) to take the same approach in a similar immunity case, i.e., school districts were held liable in negligence to the plaintiff therein and to future plaintiffs. Wisconsin too, motivated by deep considerations of public policy, saw fit to abolish immunity of charitable hospitals prospectively only and to follow Molitor in giving the litigants then before the court the benefit of the ruling. (Kojis v. Doctors Hosp., 12 Wis. 2d 367.)
In sum, for reasons of public policy, I would give this decision prospective effect only but would permit the appellants here to reap the benefits of the appeal for the reasons aptly set forth in Molitor v. Kaneland Community Unit Dist. No. 302 (18 Ill. 2d 11, 27-28, supra): "Likewise there is substantial authority in support of our position that the new rule shall apply to the instant case. (Dooling v. Overholser, (D. C. cir.) 243 F. 2d 825; Shioutakon v. District of Columbia, (D. C. cir.) 236 F. 2d 666; Durham v. United States, (D. C. cir.) 214 F. 2d 862; Barker v. St. Louis County, 340 Mo. 986; 104 S. W. 2d 371; Farior v. New England Mortgage Security Co., 92 Ala. 176, 9 So. 532; Haskett v. Maxey, 134 Ind. 182, 33 N. E. 358; Daucey v. Farney, 173 N. Y. Supp. 530.) At least two compelling reasons exist for applying the new rule to the instant case while otherwise limiting its application to cases arising in the future. First, if we were to merely announce the new rule without applying it here, such announcement would amount to mere dictum. Second, and more important, to refuse to apply the new rule here would deprive appellant of any benefit from his effort and expense in [*88] challenging the old rule which we now declare erroneous. Thus, there would be no incentive to appeal the upholding of precedent since appellant could not in any event benefit from a reversal invalidating it." This view was adopted by the Wisconsin Supreme Court in Kojis v. Doctors Hosp. (12 Wis. 2d 367, 374, supra). Of course, parties to cases which have already been decided and which have already upheld their divorces could obtain no benefit from the consideration afforded these appellants (Lyon v. Richmond, 2 Johns. Ch. 51, 59, per Kent, Ch., revd. on other grounds 14 Johns. 501).
The order of the Appellate Division vacating the judgment of annulment and reinstating Mrs. Rosenstiel's injunction action restraining Mr. Rosenstiel from seeking marital relief outside this jurisdiction should be reversed.
In Wood v. Wood decided herewith, I would modify the order of the Appellate Division to the extent of granting the defendant's counterclaim for annulment. In all other respects I would affirm.
Judges Dye, Fuld and Van Voorhis concur with Judge Bergan; Chief Judge Desmond concurs in part in an opinion; Judge Scileppi dissents and votes to reverse in an opinion; Judge Burke taking no part.
In each action: Order affirmed.
Footnote 1: Kantrowitz v. Kantrowitz, 21 A D 2d 654; Matter of Klemas v. Klemas, 20 A D 2d 530; Heine v. Heine, 19 A D 2d 695, affg. 231 N. Y. S. 2d 239; Busk v. Busk, 18 A D 2d 700, affg. as mod. 229 N. Y. S. 2d 904; Sonnenberg v. Sonnenberg, 203 N. Y. S. 2d 118, app. dsmd. 11 A D 2d 1024; Laff v. Laff, 4 A D 2d 874, affg. 5 Misc 2d 554; Weibel v. Weibel, 37 Misc 2d 162; Millman v. Millman, 27 Misc 2d 669; Skolnick v. Skolnick, 24 Misc 2d 1077; Bowen v. Bowen, 22 Misc 2d 496; Fricke v. Bechtold, 8 Misc 2d 844; Mitchell v. Mitchell, 194 Misc. 73; Matter of Fleischer, 192 Misc. 777; Costi v. Costi, 133 N. Y. S. 2d 447; Caswell v. Caswell, 111 N. Y. S. 2d 875; Mountain v. Mountain, 109 N. Y. S. 2d 828; Katz v. Katz, N. Y. L. J., May 8, 1964, p. 16, col. 8; Ocker v. Ocker, N. Y. L. J., April 16, 1964, p. 19, col. 4; Walker v. Walker, N. Y. L. J., Jan. 14, 1964, p. 16, col. 5.
Footnote 2: For a discussion of this case including comments by scholars in the area consult 1 Rabel, The Conflict of Laws: A Comparative Study (2d ed., 1958), p. 531.
Footnote 3: Compare Golden v. Golden (41 N. M. 356) with Ferret v. Ferret (55 N. M. 565).
Footnote 4: In this connection we should recall that this is the first time that we have had this questions before us, and that this court has no power to issue advisory opinions.