Banfield v. Banfield, 70.

• Citation: 27 N.W.2d 336,318 Mich. 38
• Decision Date: 16 May 1947
• Docket Number: No. 70.,70.
• Parties: BANFIELD v. BANFIELD.
• Court: Michigan Supreme Court

318 Mich. 38

27 N.W.2d 336

BANFIELD

v.BANFIELD.

No. 70.

Supreme Court of Michigan.

May 16, 1947.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Genesee County, in Chancery; Paul V. Gadola, Judge.

Suit for divorce by Cherry Hazel Banfield against Charles Peter Banfield. From an order dismissing the bill of complaint, plaintiff appeals.

Affirmed.

Before the Entire Bench.

Harold H. Bobier, of Flint, for plaintiff-appellant. plaintiff-appellant.

No appearance for defendant.

CARR, Chief Justice.

The question at issue in this case is whether plaintiff is entitled to maintain her suit for divorce in the circuit court of Genesee county. The bill of complaint, filed February 26, 1946, alleged that the parties were married in London, England, on or about December 16, 1944, that at that time defendant was a sergeant in the United States army, stationed in England, that plaintiff was a member of the British armed forces, belonging to the women's section of the Royal Air Force, that the parties lived together as husband and wife until the latter part of March, 1945, and that in May following defendant left England for the United States. Plaintiff further averred that defendant assured plaintiff that he would make arrangements for her to come to this country as soon as possible, that she intended to follow defendant as soon as war regulations would permit, and that it was the intention of the parties at that time to establish a home together wherever defendant might reside after the war. Plaintiff further claimed that defendant failed to answer her letters, that he did not send her money for her support, and that, according to her information, he had conducted himself, since returning to the United States, in a manner subversive of the marital relation. It is conceded that plaintiff has not at any time actually lived in Michigan. In the bill of complaint she alleged that the defendant was, at the time of the marriage and also at the time of the institution of the divorce action, a resident of Genesee county in this State, and that she became, and still is, ‘an inhabitant of this State by virtue of a marriage ceremony performed between the parties as above stated.’ It thus appears that plaintiff brought her action in reliance upon the theory that constructive residence was sufficient to satisfy the jurisdictional requirements of the Michigan statute (hereinafter more specifically referred to), and that actual residence within the State was not necessary.

Process was duly issued on the filing of the bill and personal service was had on defendant in Genesee county. He did not, however, enter an appearance in the case, and the matter was brought on for hearing before the court on the bill of complaint taken as confessed. On behalf of plaintiff and in support of her charges of extreme and repeated cruelty testimony of a witness was offered and received. Thereupon consideration was given to the question of jurisdiction and the trial court, being of the opinion that the suit could not be maintained in view of the situation as to plaintiff's residence, entered an order dismissing the bill of complaint. From such order plaintiff has appealed.

Plaintiff relies on the rule that the domicile of the wife follows, as a general proposition, the domicile of the husband. It is claimed, in substance, that domicile and residence are practically synonymous terms and that, in determining residence, intent is of primary importance. In accordance with the averments of the bill of complaint it is insisted that on plaintiff's marriage to defendant, in December, 1944, Genesee county became, constructively, her matrimonial domicile.

The rule is well established in this State that the jurisdiction of the courts in divorce proceedings is wholly statutory. Haines v. Haines, 35 Mich. 138;Baugh v. Baugh, 37 Mich. 59,26 Am.St.Rep. 495;White v. White, 242 Mich. 555, 219 N.W. 593. The pertinent provisions of the statute relating to the matter at issue here are found in Comp.Laws 1929, § 12731, as last amended by Act No. 2, Pub.Acts 1941, Comp.Laws Supp.1945, § 12731, Stat.Ann. 1946 Cum.Supp., § 25.89. Said section provides in part as follows:

‘No decree of divorce shall be granted by any court in this state in any case unless:

‘First, The party applying therefor shall have resided in this state for 1 year immediately preceding the time of filing the bill or petition therefor; or,

‘Second, The marriage which it is sought to dissolve was solemnized in this state, and the party applying for such divorce shall have resided in this state from the time of such marriage until the time of bringing such suit for divorce.'

Obviously, the second alternative in the language quoted has no application in the case at bar. The question is whether it can be said under the facts averred in plaintiff's bill of complaint that she resided in this State for the required time prior to bringing the suit. This depends on whether the language of the legislature, as set forth in the statute, is construed as requiring actual residence, or, as claimed by plaintiff, constructive residence only. The trial court in his opinion referred to specific language in the section in question and came to the conclusion that actual residence is necessary to satisfy the jurisdictional requirement. It is a fair inference that the word ‘resided’, as used throughout the section, was intended to have, in each clause where appearing, the same meaning. This...