People v. Steere

Ostrander, J. (after stating the facts). Something is claimed by the people on account of the fact that Shirley Ross came to Michigan by the consent of respondent, was here visited by him, and was here when, upon the development to her of the real situation, he refused to further provide for her. In essence, however, the contention of the people is, and must be, that respondent must be considered to be the husband of Shirley Ross because the ceremony of marriage was performed in Michigan with due formality. Excepted from the general rule that a marriage, valid according to the law of the State or country where it is celebrated, is valid everywhere, are marriages prohibited from motives of public policy by the public law of the State or country in which they are questioned. The supreme court of Illinois, in the decision already referred to, after a citation of authorities, said: “These cases sustain the principle that, where a State has enacted a statute lawfully imposing upon its citizens an incapacity to contract marriage by reason of a positive policy of the State for the protection of the morals and good order of society against serious [561] social evils, a marriage contracted in disregard of the prohibition of the statute, wherever celebrated, will be void.” This is in keeping with numerous decisions in other jurisdictions, in which a similar policy is evidenced by statute. See Lanham v. Lanham, 136 Wis. 360 (117 N. W. 787, 17 L. R. A. (N. S.) 804, 128 Am. St. Rep. 1085), and cases collected in the opinion. In the application of the general rule, and the exception, a distinction may be made, and it has been made, between the marriage of persons celebrated in a State or country in which they have acquired a domicile and the marriage, outside the country of the prohibition, of persons domiciled within it; persons who are married elsewhere to escape the effect of the prohibition. Such a case is State v. Fenn, 47 Wash. 561 (92 Pac. 417, 17 L. R. A. [N. S.] 800). Assuming the indicated position of the courts to be correct in principle, what is the status of persons thus violating the law of their domicile in other States in which the validity of the marriage is brought in question, and, to be more precise, what is their status under such circumstances in States in which a public policy similar to that of the State of the domicile of the parties has not been declared by statute? In the State of Michigan the court granting a decree of divorce may provide in the decree that the party against whom any divorce is granted shall not marry again, etc., and, if a marriage is celebrated contrary to the decree, the guilty person “shall be deemed to have committed the crime of bigamy and shall be subject to the pains and penalties therefor.” The rule that statutes of a State have, generally, no extraterritorial effect is familiar. If respondent and Shirley Ross had intended to acquire, and had acquired, a domicile in Michigan before or at the time the Michigan marriage was celebrated, the validity of [562] the marriage could not be here successfully questioned; upon the authority of State v. Fenn, supra, it could not be successfully questioned in Illinois if, later on, they returned to that State to live. This being true, it must also be true that no personal disability to contract marriage in another State attended respondent. No impediment to such a marriage, save that interposed by the Illinois law, existed. Whatever public policy is evidenced by the Michigan law, it is directed rather to the controlling of the party guilty of marital wrongs than, generally, at parties to a divorce proceeding. +There appears to be no rule of State comity which requires the courts of this State to recognize and to enforce here the prohibition of the Illinois law, and no such rule is suggested. Nevertheless I must hold that respondent has not abandoned his wife in Michigan. He never acquired a domicile in this State. This State is not the matrimonial domicile of respondent and Shirley Ross, nor was it ever intended to be. Shirley Ross acquired no domicile here through respondent or her relation to him. The case is one of first impression, but I think it impossiblé to defend the proposition that because the marriage ceremony was performed in this State she can claim here to be wife of respondent ; that by mere removing of herself from her matrimonial domicile, in which she is no wife, she becomes, the State line being crossed, an abandoned wife in Michigan. An argument may be made, reaching the same conclusion, based upon the proper construction and application of the statute under which respondent is charged. It is true, as was said by the learned trial judge, that it applies in terms to any person who deserts and abandons his wife. It is entitled: “An act to prevent the desertion and abandonment of wife; * * * to make such abandonment and desertion a felony and to prescribe the punishment [563] therefor; to provide for the care of the dependent wife and children. * * * ” It would not be contended that, if a wife from another State, where was the matrimonial domicile, removed herself to Michigan and claimed here to have been thereafter abandoned by a husband who had not changed his domicile, the husband would be amenable to the statute, although a husband, domiciled here, who flees the State, abandoning and intending to abandon his wife remaining here, may undoubtedly be brought to book. Decision that the conviction should be set aside and respondent discharged is based solely upon the ground that Shirley Ross does not occupy in this State the position of an abandoned wife; the people of the State being therefore not concerned. Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, and Steere, JJ., concurred. Moore, J., did not sit.