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
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 of willful
desertion of the plaintiff, and that such desertion, as shown
by the proofs herein, is cause for full and absolute divorce
under the laws of this state; (8) that the true and best
interests of the parties and of the minor children of the
parties all require that the custody of said minor child Mary
Beulah be awarded to and confirmed in the plaintiff, and the
custody of said minor child Maud be awarded to and confirmed
in the defendant; (9) that from the proofs as they appear
herein the sum of $10,000 is a fair, reasonable, and just sum
to be paid by the plaintiff to the defendant for the support,
care, custody, maintenance, and education of said minor child
Maud, and that the decree herein should require plaintiff to
pay said sum to defendant in that behalf, but, and the decree
shall so provide, the payment of said $10,000 shall be in
full discharge of all obligations of the plaintiff to the
defendant, including, not only in behalf of said minor child
Maud, but also in full discharge of all obligations from him
to her of or on account of alimony, support, money, rights of
dower, if any, and any and all other obligations whatever,
except there be reserved to the said defendant her right of
dower, if any she have, in a certain farm in the state of
North Carolina, called and known as the 'Moore farm,'
near Franklin, in the county of Macon, in said state,
formerly owned by plaintiff; (10) that justice to the parties
require, and that the decree shall so provide, that each of
the parties may visit the child in the care and custody of
the other at reasonable times and places provided in that
behalf, however, that, when defendant desires to visit the
said minor child Mary Beulah, she shall not be required to do
so at the home of the plaintiff's parents or relatives,
but may do so at the house of some disinterested friend, and
with such child in the then temporary custody of such
disinterested friend or of the plaintiff. Let judgment be
entered herein in conformity with the foregoing by the clerk
of the district court," etc. Signed by W. S. Lauder,
judge, etc., September 20, 1895.
And the
proceeding and decree in the libel for divorce entered in
Massachusetts are as follows: "Respectfully libels and
represents Ella J. Bidwell, of Springfield, Mass., that she
was lawfully married to Geo. H. Bidwell, now of Culasaja, in
North Carolina, at Walhalla, in South Carolina, on the 9th
day of December, 1890, and thereafterwards your libelant and
the said Geo. H. Bidwell lived together as husband and wife
in this commonwealth, to wit, at Chester, in said county, and
that your libelant has lived in this commonwealth for five
years last preceding the filing of this libel; that your
libelant has always been faithful to her marriage vows and
obligations, but the said Geo. H. Bidwell, being wholly
regardless of the same at Culasaja, in North Carolina, on
Friday, the 1st day of December, 1893, or thereabout, without
just cause willfully and utterly deserted your libelant,
which desertion has continued for three consecutive years
next prior to the filing of this libel. Wherefore your
libelant prays that a divorce from the bonds of matrimony may
be decreed between your libelant and the said Geo. H.
Bidwell, and that the care and custody of Maud Bidwell and
Beulah Bidwell, both minor children of said libelant and
libelee, may be decreed to her, and that said libelee may be
decreed to pay alimony to your libelant in the sum of
$50,000, and for such other orders and decrees as to your
honors shall seem meet and as justice may require."
Signed by Ella J. Bidwell, February 4, 1902.
The
foregoing libel was entered in this court on the 10th day of
February, 1902, when the libelant appeared by her attorneys
Bates & Armington, and the libelee appeared by his attorney,
E. H. Lathrop, and on the back of said libel is the following
acceptance of service: "I...
