52 S.E. 55 (N.C. 1905), Bidwell v. Bidwell

Citation:52 S.E. 55, 139 N.C. 402
Opinion Judge:HOKE, J. (after stating the case).
Attorney:Argo & Shaffer and Douglass & Simms, for appellant. Busbee & Busbee, Shepherd & Shepherd, and Jones & Johnston, for appellee.
Case Date:October 31, 1905
Court:Supreme Court of North Carolina

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52 S.E. 55 (N.C. 1905)

139 N.C. 402




Supreme Court of North Carolina

October 31, 1905

Appeal from Superior Court, Wake County; Neal, Judge.

Action by Ella J. Bidwell against George H. Bidwell. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Civil action under section 1292 of the Code to recover for support and maintenance of plaintiff and her minor child. Plaintiff alleged that plaintiff and defendant were man and wife, that defendant had unlawfully abandoned plaintiff, and failed to provide reasonable subsistence for plaintiff and her minor child, though fully able to do so. Defendant answered, denying that he had wrongfully deserted plaintiff, charged the separation to plaintiff's own conduct, and, further, set up the record, proceedings, and decrees of two courts--one in North Dakota, in which the present defendant was awarded an absolute divorce, and the second a record and decree of Massachusetts, in which the present plaintiff sued the present defendant for absolute divorce, and in which there was a decree that the divorce granted in the North Dakota court was valid and binding, and that plaintiff and defendant did not hold the relationship of man and wife--and set up these two records and decrees as an estoppel in bar of relief. Plaintiff replied to the answer, and averred that the decree of divorce granted by the court in North Dakota was null and void, and should be so held, because at the time of the institution of said suit and proceedings and decree therein neither plaintiff nor defendant had any bona fide domicile in North Dakota, "but that defendant had gone to said state with no intent or purpose of becoming a resident or acquiring a bona fide domicile therein, but with the sole purpose of obtaining, by fraud and secretly, a divorce from plaintiff." Further replying, plaintiff averred that the plaintiff was forced by stress of want and dire necessity, being penniless, friendless, homeless, and in a strange land, either to accept such terms as the present defendant might dictate or go hence in destitution for herself and infant child, and under and by virtue of this hard duress, from a necessity from which there was no escape, she took the money he agreed to give her. There was evidence to the effect that the present plaintiff had appeared and answered in the suit in North Dakota, that the decree of divorce was entered after investigation had, and the plaintiff in this suit had been awarded and paid $10,000 as a full and reasonable allowance for the care, education, and maintenance of her minor child. It further appeared that at the time of the institution of the suit in Massachusetts by the present plaintiff, and pending the proceedings therein, the said plaintiff was a citizen, resident, and domiciled in Massachusetts, and defendant had appeared and answered to the libel filed in the cause.

The record of findings of fact and conclusions of law in which the decree of absolute divorce was awarded in the North Dakota suit are as follows: "(1) That plaintiff now is, and at all times since more than 90 days preceding the commencement of this action has been, in good faith a resident of North Dakota, and that defendant is a resident of Springfield, Mass., but is now in this state; (2) that plaintiff is now about 26 years of age and defendant is now about 29 years of

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age; (3) that on December 9, 1890, plaintiff and defendant were married, and that said marriage has never been annulled or dissolved; (4) that there are two children, living issue of said marriage between plaintiff and defendant herein, to wit, Mary Beulah, a girl four years of age, and Maud, a girl two years of age, the former of which is in the custody of the plaintiff, and the latter in the care and custody of the defendant; (5) that plaintiff and defendant lived together after their said marriage as husband and wife until about the month of December, 1893, at which last-mentioned time they separated, and have lived separate and apart ever since; (6) that this is an action for divorce, and that this court has full jurisdiction of both the parties thereto and of the subject-matter of the action; (7) that defendant, as appears from the proofs herein, has been and is guilty...

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