Maris, Van Dusen and Aldisert, Circuit Judges.
This is an appeal by the defendant husband from a judgment of the District Court of the Virgin Islands granting to the plaintiff wife a divorce and the custody of their minor son, Daniel, now 9 years old. The parties, who were married in New York on September 10, 1954, are Swiss citizens. On February 8, 1967 the present plaintiff filed a petition in a court of the State of Chihuahua, Mexico, praying for a divorce from her husband, the present defendant. The plaintiff appeared personally in the Mexican proceeding. The defendant appeared by a duly empowered attorney at law and filed a consenting answer. On February 23, 1967 the Mexican court entered a decree of divorce, dissolving the marriage and awarding custody of the minor child to the defendant.
On November 22, 1967 the plaintiff filed another divorce petition in the tribunal of the district of Lausanne, in the Canton of Vaud, Switzerland. That suit was subsequently dismissed by reason of the absence of the plaintiff.
In the latter part of November, 1967, the defendant arrived in St. Thomas from Martinique on the motor vessel Jolly Rover to engage in the charter business for the tourist season. The defendant had just returned from Switzerland where the minor child had been living with the defendant's parents and he brought the minor child to St. Thomas with him. On December 8, 1967 the defendant was served with a writ of ne exeat issued on that day pursuant to an order of the District Court of the Virgin Islands in a suit for custody of the minor child brought in that court at Civil No. 381 -- 1967, Division of St. Thomas and St. John, by the plaintiff who was then en route to St. Thomas from Switzerland. No further action has been taken by the District Court in that suit and on January 29, 1968 the plaintiff filed in that court a complaint, her fourth,*fn1 against the defendant at Civil No. 27 -- 1968, Division of St. Thomas and St. John, praying for an absolute divorce and again seeking the custody of the minor child. A motion to dismiss this complaint for lack of jurisdiction of the subject matter and persons of the plaintiff and minor child was filed by the defendant and on March 7, 1968 was denied without prejudice by the court which ordered that the defendant pay the plaintiff $100.00 per month for the support of the child, that the child be not removed from the jurisdiction and that his custody be awarded to the plaintiff, all pendente lite. Thereafter a trial was held by the District Court which on April 24, 1968 filed its findings of fact, conclusions of law and a decree granting the plaintiff an absolute divorce, the custody of the minor child and support for the child of $100.00 per month. This appeal by the defendant followed.
The defendant's motion to dismiss the complaint was based, inter alia, upon the proposition that the court lacked jurisdiction of the subject matter because there was no existing marriage between the parties to dissolve, the marriage having been terminated a year previously by the Mexican divorce decree, an authenticated copy of which was annexed to the motion. In her brief opposing the motion the plaintiff attacked the validity of the Mexican divorce decree on the ground that neither party was domiciled in Mexico at the time it was rendered and that the Mexican court, therefore, lacked jurisdiction to render it. Thus was raised the question of the validity of the Mexican decree or, more precisely, the question whether the plaintiff can be heard to attack in this proceeding the validity of the Mexican decree which she herself had sought and obtained and in the entry of which the defendant had acquiesced.
It appeared from the papers annexed to the motion that on or about February 8, 1968 the plaintiff was personally in the City of Juarez, in the State of Chihuahua, Mexico, where she signed the municipal registry of residents of the city, appeared personally in the Third Civil Court of the District of Bravos, State of Chihuahua, filed her complaint against the defendant for a divorce and submitted herself to the jurisdiction of the court, exhibiting a certificate of her inscription in the municipal registry of residents. The defendant appeared by an attorney who exhibited a written power of attorney and filed an answer on behalf of the defendant submitting to the jurisdiction, confessing the complaint and joining in its prayer for a divorce. Upon this state of the record and after receiving testimonial evidence the Mexican court entered the decree in question which granted the divorce and awarded custody of the minor child to the defendant.
It is true, as the plaintiff now argues, that domicile is regarded as the basis for jurisdiction to grant a divorce in the United States. Granville-Smith v. Granville-Smith, 1955, 349 U.S. 1, 75 S. Ct. 553, 99 L. Ed. 773. It is likewise true that a divorce decree may be collaterally attacked for lack of domiciliary jurisdiction, Williams v. North Carolina, 1945, 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577, 157 A.L.R. 1366, if the defendant was not personally served and did not appear. But it is equally well settled that if the defendant was personally served or did actually appear in the action he is estopped from impeaching the resulting divorce decree, whether the domiciliary jurisdiction was contested by the defendant, Sherrer v. Sherrer, 1948, 334 U.S. 343, 68 S. Ct. 1087, 92 L. Ed. 1429, 1 A.L.R.2d 1355, or was admitted by him, Coe v. Coe, 1948, 334 U.S. 378, 68 S. Ct. 1094, 92 L. Ed. 1451, 1 A.L.R.2d 1376.
The Sherrer and Coe cases involved divorce decrees which had been entered in Florida and Nevada, respectively, and involved the application thereto of the full faith and credit clause of the federal Constitution. Here, however, we are dealing with a decree of a foreign state as to which the principles of comity, rather than full faith and credit, apply. Ordinarily, the recognition in the United States of such a foreign decree will depend upon whether at least one of the spouses was domiciled in the foreign state when the decree of divorce was rendered. Certainly "mail order" divorce decrees in which neither spouse has appeared personally in the foreign jurisdiction are not recognized here. And this appears to be equally true in the case of ex parte divorce decrees in which an absent defendant is served only extraterritorially or constructively and does not actually appear or file an answer in the action.
In the Mexican proceeding involved in the present case, however, as in the Coe case, a bilateral divorce is involved. For here, as there, the plaintiff was personally present in the foreign state and appeared in the foreign court and the defendant appeared in that court by counsel and filed a consenting answer. In Rosenstiel v. Rosenstiel, 1965, 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709, 13 A.L.R.3d 1401, cert. den. 384 U.S. 971, 86 S. Ct. 1861, 16 L. Ed. 2d 682, the Court of Appeals of New York was presented with the question whether such a bilateral divorce granted in the State of Chihuahua, Mexico, was entitled to recognition in New York State. In speaking for the Court of Appeals in that case Judge Bergan said, inter alia:
"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.
"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, 81 N.E.2d 60 (1948); Rosenbaum v. Rosenbaum, 309 N.Y. 371, 130 N.E.2d 902, 54 A.L.R.2d 1232 (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 ...