Anabel Miller v. James C. Miller
| Decision Date | 14 October 1914 |
| Parties | ANABEL MILLER v. JAMES C. MILLER |
| Court | Vermont Supreme Court |
May Term, 1914.
PETITION for a divorce. Trial by court at the December Term 1913, Orange County, Butler, J., presiding. On the facts found by the court, the libellee moved to dismiss the petition for want of jurisdiction. Motion overruled, and bill granted for intolerable severity, with order for alimony and giving the libellant the custody of her minor child. The libellee excepted. The opinion states the case.
Affirmed, and cause remanded for a new time of payment of alimony to be fixed.
David S. Conant for the libellee.
E W. Smith and Frank S. Williams for the libellant.
Present: POWERS, C. J., MUNSON, WATSON, HASELTON AND TAYLOR, JJ.
These parties were married at Chicago in the fall of 1911, and came at once to Newbury, Vt. to reside. They lived together there on a farm owned by the libellee and his brother until May, 1912, when, on account of the husband's cruel treatment, the libellant was compelled to leave him. She went back once for a reconciliation, but was in effect turned away by him and forbidden to return. She then went back to Chicago, and did not intend to return to Vermont unless her husband came for and requested her to do so. This he never did, though there was some correspondence between them looking toward a resumption of marital relations at Newbury. She remained in Chicago until she came back here to prosecute her libel for a divorce. The court below granted the libellant a divorce, and the libellee insists that this was error, because the libellant lacked the year's residence required by P. S. 3071.
The term "reside" is used in different senses, and if this statute makes actual living here for the time specified a prerequisite, the libellant fails to make a case; for she was living in Chicago and not in Vermont during that time. But, having in mind the evil which the statute was designed to guard against,--fraudulent divorces,--we do not think that, in a case like this, it is necessary for the libellant to actually live in this State during the year preceding the filing of her libel. It is sufficient if her legal domicile is here. This is generally so held, and sufficiently appears from Turner v. Turner, 87 Vt. 65, 88 A. 3, 47 L.R.A. (N. S.) 505. And her legal domicile was here, because her husband's was here; and the general rule is that the husband's domicile is that of the wife. True it is that when compelled by his misconduct to leave him, she may acquire a separate residence,-- Patch v. Patch, 86 Vt. 225, 84 A. 815--but she is not obliged to do so. He cannot by his bad conduct compel her to acquire a new domicile for herself; she may retain his, though she lives elsewhere. Duxstad v. Duxstad, 17 Wyo. 411, 100 P. 112, 129 Am. St. Rep. 1138.
So here, the libellant's domicile was at Newbury, and was not lost by the mere act of removal, but continued until she acquired a new one somewhere else. Turner v. Turner, supra. To make a change of domicile effective, she must have not only gone to Chicago and lived there, but she must have had the intention of remaining there and making that city her home. Blondin v. Brooks, 83 Vt. 472, 76 A. 184. Neither residence alone, nor intention without more, would be sufficient.
It is not found that the libellant intended to make Chicago her place of abode. All that is found is that she did not intend to return to Newbury unless her husband came for her,--which...
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