Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
This case involves an important and novel question with regard to jurisdiction for divorce. The plaintiff, Sonia Alton, left her home in West Hartford, Connecticut, and went to the Virgin Islands, where she arrived February 10, 1953. After six weeks and one day continuous presence there she filed a suit for divorce on March 25, 1953. Her husband, David Alton, defendant, entered an appearance and waived service of summons. He did not contest the allegations of the complaint. The commissioner to whom the case was referred filed findings of fact and conclusions of law and recommended that the plaintiff be granted a divorce for "incompatibility of temperament."*fn1 When the case came to the judge of the district court he asked for further proof on the question of domicile. This was not furnished. He thereupon denied the plaintiff the relief sought, and the case comes here on her appeal. The defendant has filed no brief and made no argument.
The core of our question is found in two acts of the Legislative Assembly of the Virgin Islands. The first is the Divorce Law of 1944, section 9 of which requires six weeks' residence in the Islands prior to commencement of a suit for divorce.*fn2 In Burch v. Burch, 3 Cir., 1952, 195 F.2d 799, this court construed the words "inhabitant" and "residence" in that statute to mean "domiciliary" and "domicile." In 1953 the Legislative Assembly passed another act which must be stated in full in order to understand the specific problem involved in this case. It amends section 9 of the Divorce Law of 1944 by adding to it an additional subsection (a) which reads:
"Notwithstanding the provisions of sections 8 and 9 hereof, if the plaintiff is within the district at the time of the filing of the complaint and has been continuously for six weeks immediately prior thereto, this shall be prima facie evidence of domicile, and where the defendant has been personally served within the district or enters a general appearance in the action, then the Court shall have jurisdiction of the action and of the parties thereto without further reference to domicile or to the place where the marriage was solemnized or the cause of action arose."*fn3
The Legislative Assembly of the Virgin Islands has wide legislative authority.That authority, of course, comes from the Congress and is found in the organic act of the Islands. This power extends "to all subjects of local application not inconsistent with [other sections of this act] or the laws of the United States made applicable to said islands * * *."*fn4 Absent restrictions elsewhere, such a grant of power to a territory places it on a par with the States as to all matters properly included in the grant.*fn5
Certainly marriage and divorce are proper subjects of local legislation. So also is the jurisdiction of local courts. The organic act grants to the District Court of the Virgin Islands not only jurisdiction over annulment and divorce, but also jurisdiction over "all matters and proceedings not otherwise hereinabove provided * * * which may hereafter be placed within the jurisdiction of the District Court of the Virgin Islands * * * by local law."*fn6 We think this language, applied to divorce jurisdiction, puts the Virgin Islands on a par with the States, and overrides other restrictive provisions in Congressional legislation affecting the territories.*fn7
Important as the Legislative Assembly's power is, however, it is like the law-making bodies of the States, subject to the limitations of the Constitution of the United States.*fn8 We approach the problem on review, therefore, as though the legislation in question had been passed by one of the States in this Circuit.
In connection with this 1953 act of the Virgin Islands, we must notice that it added an additional section 17 to the Divorce Law providing:
"Should any section of this law or part thereof be declared invalid by a Court of competent jurisdiction, said declaration shall not invalidate the remainder of this law."
It is our obligation to separate the parts of the provision under consideration if we find one part of it is constitutional and the other part is not. Looking at the language to which our attention is addressed we think it pretty clear as a matter of construction of the English language that there are here two separable provisions. There are two rules provided and they are connected with a conjunctive "and." We think, therefore, that we must give attention to the two clauses independently.
We turn first to the opening clause of the statute. Continuous physical presence in the Islands for six weeks prior to the filing of a complaint in a divorce action is declared to be prima facie evidence of domicile.The question is whether such a declaration is within the legislative competence. The test to be applied is whether the fact or facts to be presumed are reasonably related or have some rational connection with the fact which creates the presumption. The leading case is Mobile, J. & K.C.R. Co. v. Turnipseed, 1910, 219 U.S. 35, 31 S. Ct. 136, 55 L. Ed. 78. It has been followed in many cases since.*fn9
The problem we must answer is whether six weeks' physical presence creates, without more, a rational foundation on which to base a finding of domicile. The requirements for effecting a change of domicile by a person having legal capacity are clear and undisputed. There must be physical presence in the place where domicile is claimed and there must be the intent to make that place the home of the person whose domicile is in question. Restatement, Conflict of Laws, § 15. If these two elements concur even for an instant the domicile is established at the new place.*fn10
Physical presence is easy to prove. It is by far the easier element to establish in the question of change of domicile, and it is not conclusive one way or the other in answering the question of location of domicile. The books are full of cases where persons have been absent from the place of domicile for a long time and still found not to have lost domicile there.*fn11
The statute in question jumps the difficult phase in the proof of domicile, namely, the intent to make a home in the place where domicile is claimed. It would not be denied that long continued residence in a place tends to show that one has made a home there although there are many decisions in which courts have struggled with the problem even in the face of long continued presence in a place other than the one which at one time was the domicile of an individual concerned.*fn12
A six-weeks' sojourn without proof of the intent with which one makes it, we think, tends to establish nothing but the fact of six weeks' physical presence. Thousands and thousands of people spend six weeks or more in a place every year on business, for pleasure, for reasons of health, to visit relatives and all the other different reasons which make Americans move about, without the faintest intention of making a change in their homes.
It is to be noted also that the statutory presumption in this case applies to the very thing on which jurisdiction is founded. We think it is much easier to support a presumption or prima facie rule which allows a conclusion such as negligence to be drawn from named operative facts than it is to support a conclusion lifting a court into jurisdiction over that which it would not otherwise have.*fn13 Of course, it may be urged that in the first part of the statute this conclusion is not an irrevocable one and that the statute speaks in terms of "prima facie" only. But in considering all this we must open our eyes to the known facts about divorce litigation in this country. We know that while it is still conducted against a background of what appears to be ordinary contentious litigation in a great proportion of cases it is not this way at all. Thus, in the Virgin Islands for 1952 divorce litigation accounted for 343 cases concluded during that period; all other civil litigation amounted to only 272 cases. Of these divorce cases 342 were uncontested.*fn14 Back as far as 1932 surveys conducted by The Institute of Law of The Johns Hopkins University showed that in Maryland, a state with almost no migratory divorce problem, only 80 cases were actually contested out of the 2090 actions filed in 1929 and disposed of by May, 1931. 41.3% of these actions were technically contested by the filing of an answer. Marshall and May, I The Divorce Court 206-208 (1932). Statistics from the Bureau of the Census demonstrate the low rate of contested divorces in this country from 1887 to 1931:
1887 to 1906 1916 1922 1923 1924 1925 1926 1927 1928 1929 1930 1931
Per Cent 15.4 13.6 14.1 13.4 13.8 12.8 12.1 11.9 11.7 11.8 12.6 13.9
It should be noted that in many of these cases the only contest may have been the filing of an answer. Marriage and Divorce 30, 31 (1930); Marriage and Divorce 25, 26 (1961). And see Note, The Administration of Divorce: A Philadelphia Study, 101 U. of Pa.L.Rev. 1204, 1208 (1953). More recent nation-wide compilations of such statistics are not available. But several state reports reveal that the earlier figures are still representative: in 1951, only 7.8% of Iowa divorces and 11.4% of Nebraska divorces were even technically contested.*fn15 However, Florida contests have increased from 6.4% in 1930 to 34% in 1951.*fn16 This increase is probably the result of Sherrer v. Sherrer, 1948, 334 U.S. 343, 68 S. Ct. 1087, 1097, 92 L. Ed. 1429, and Coe v. Coe, 1948, 334 U.S. 378, 68 S. Ct. 1094, 92 L. Ed. 1451, under which it was established that the doctrine of res judicata was applicable when the defendant had appeared.
All this being so, and there is little doubt about the general facts with regard to divorce litigation, we think it bears upon the question of whether it is reasonable to call for an inference of domicile by a set of facts which leaves out the hard question, namely, intent, and purports to leave open to a nonexisting opponent the burden of disputing the conclusion which is otherwise to be drawn. If domicile is really the basis for a divorce jurisdiction, a subject considered later in this opinion, then six weeks' physical presence without more is not a reasonable way to prove it.
In considering this statute we do not think that we can ignore the facts of life with respect to migratory divorce in America.It is well known to all of us that increasingly large numbers of persons who are dissatisfied with their marital lot are repairing to other jurisdictions, the Virgin Islands among them, where short residence requirements and liberal grounds for divorce appear to offer them the relief they desire. In very few of these instances do the parties intend to remain longer than necessary to obtain the decree sought.Consequently in these cases the court's finding of domicile usually is contrary to the fact and frequently is based upon evasive or even perjured testimony. The statutory presumption in the present case will doubtless eliminate the temptation to such perjury but the findings based upon it will still be contrary to the true fact in the great majority of cases.The presumption must, therefore, be regarded as either an unreasonable interference by the legislative branch of the insular government with the exercise of the judicial power by the judicial branch or as an attempt by the legislature to convert the suit for divorce into what is in fact a transitory action masquerading under a fiction of domiciliary jurisdiction. We think that looked at in any of these ways the portion of the statute which provides for such a prima facie conclusion is invalid.
We pass, therefore, to the second part of the statute. The second part of the statute goes on to provide that the court shall have jurisdiction, after six weeks' residence by the plaintiff, where the defendant has been personally served or appeared, "without further reference to domicile." In other words, if the defendant is before the court, the case is to proceed without reference to domicile.*fn17 The action, in other words, is to become a simple transitory action like a suit for tort or breach of contract where, the defendant being in court and the court competent to proceed in this ...