Addie L. Wilder v. John C. Wilder

• Decision Date: 23 January 1919
• Citation: 106 A. 562,93 Vt. 105
• Parties: ADDIE L. WILDER v. JOHN C. WILDER
• Court: Vermont Supreme Court

106 A. 562

93 Vt. 105

ADDIE L. WILDER v. JOHN C. WILDER

Supreme Court of Vermont

January 23, 1919

January Term, 1919.

PETITION for separate maintenance. Heard on the petitionee's motion to dismiss the petition at the May Term, 1918, Windsor County, Butler, J., presiding. Motion granted, and petition dismissed with costs. The petitioner excepted. The opinion states the case.

Judgment reversed and cause remanded.

Stickney Sargent, and Skeels for the petitioner.

Ernest E. Moore (specially) for the petitionee.

Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

TAYLOR

This is a wife's petition for separate maintenance of herself and their three minor children, whom it is alleged the petitionee has deserted and abandoned without means of support. At the time these proceedings were instituted the petitionee was living in Claremont, New Hampshire, and had notice of the pendency of the petition by delivery of a copy thereof there, as provided by G. L. 3571. He appeared specially by attorney and moved the court to dismiss the proceedings for want of jurisdiction and for want of proper service. The court sustained the motion and allowed the petitioner an exception. Counsel for the petitionee expressly waives any objection as to the service of notice leaving the only question that of the jurisdiction of the court to entertain the petition.

The claim is made that the alleged failure to support arose in New Hampshire and that the courts of that State should be resorted to for the desired relief. But it appears from the petition that the petitioner resides in Cavendish, this State. There is nothing in the petition to show that the desertion occurred in New Hampshire, nor where the petitionee's residence is, except that he was notified at Claremont as an absent defendant. It is stated in the bill of exceptions that it appeared that the parties were married in Vermont and lived in Cavendish in this State for several years following their marriage; that they removed to New Hampshire, where the neglect and refusal to support complained of occurred; and that the petitioner subsequently returned with her children to Cavendish, where her home had been prior to her marriage. It is not clear how these facts outside of the record were made to appear on a mere motion to dismiss the petition. However, treating the facts as properly before the court, as counsel have done, they are not controlling of the question of jurisdiction. The husband forfeits the right to determine the residence of the wife when he gives her justifiable cause for living apart from him. This is recognized by the statute relating to separate support, in that it provides that the wife's petition may be brought in the county in which either of the parties resides, with the exception that if the petitioner has left the county in which the parties have lived together, and the husband still resides therein, the petition must be brought in that county. G. L. 3600; Patch v. Patch, 86 Vt. 225, 84 A. 815. But this exception relates only to the husband's residence within this state and does not remit the petitioner to a foreign jurisdiction. The Legislature has only prescribed the court in this state to which such a petition should be addressed. So far as relates to the question of residence, it is enough if the petitioner is a bona fide resident of Windsor County. Stockwell v. Stockwell, 87 Vt. 424, 89 A. 478. See also Domenchini's Admr. v. The Hoosac Tunnel, etc., R. R. Co., 90 Vt. 451, 456, 98 A. 982.

The petitionee contends that the proceedings under our statute for the separate support of the wife, living apart from her husband for a justifiable cause, are in nature in personam, and that to give the court jurisdiction in such matters it must acquire jurisdiction of the person of the husband, either by service of process upon him within the State or by his voluntary appearance in defence of the petition. So far as now material, the statute provides: "When a husband fails, without just cause, to furnish suitable support for his wife, or has deserted her, or when the wife, for a justifiable cause, is actually living apart from her husband, the county court may, * * * on the petition of the wife, * * * make such orders as it deems expedient concerning the support of the wife and the care, custody, education and maintenance of the minor children of the parties."

This statute enlarges the powers of the court relating to the marriage status of parties within its jurisdiction and confers authority to make such orders as are found expedient to enforce the duty of the husband to support his wife and maintain their minor children; subject, of course, to the limitation that it can make only such orders and that its orders will have only such effect, as the law authorizes. It is doubtless true that orders on the petitionee for the payment of money for the support of the petitioner, or the minor children, are in their nature personal, and when sought to be enforced in a foreign jurisdiction are subject to the infirmity of an ex parte judgment; but it does not follow that the jurisdiction of the person of the petitionee in such proceedings is essential to the validity of an order affecting his property found within the territorial jurisdiction of the court, or the power of the court to enforce its orders within such jurisdiction. If this were so it would be possible for the deserting husband, though possessed of visible property in abundance within the control of the court, to cross the state line and in security laugh at the inability of the law to afford relief to the abandoned wife and children. But the courts are not thus powerless to act. Means are available by which they can reach out and lay hands on the recreant husband's property and appropriate it to the support of the dependent wife and children. Such was the manifest purpose of this proceeding. The petition describes real estate and personal property within the jurisdiction of the court belonging to the petitionee,...