Blankenship v. Blankenship

• Citation: 100 S.E. 538
• Parties: BLANKENSHIP. v. BLANKENSHIP.
• Decision Date: 17 September 1919
• Court: Supreme Court of Virginia

100 S.E. 538

BLANKENSHIP.

v.BLANKENSHIP.

Supreme Court of Appeals of Virginia.

Sept. 17, 1919.

Appeal from Circuit Court, Giles County.

Action by Mr. Blankenship against Mrs. Blankenship. Decree for plaintiff, and defendant appeals. Reversed.

This is a suit for divorce, in which there is an original and an amended bill, neither of which contains any allegation that one of the parties had been domiciled in the state for at least one year preceding the commencement of the suit.

The defendant—the wife—was brought personally before the court by process duly served upon her to answer the original bill. She did not plead in abatement to the jurisdiction of the court, but at term demurred to the original bill, and also filed her answer thereto. Subsequently, also at term, on the filing of the amended bill by leave of court, the defendant did not plead in abatement, but entered an appearance and demurred to and answered the amended bill.

The decrees under review are silent as to the demurrer to the original bill, but the demurrer to the amended bill is expressly overruled by one of such decrees.

There was evidence introduced in the cause both for plaintiff and defendant, but there is no proof in the record that either the plaintiff or the defendant had "been domiciled in the state for at least one year preceding the commencement of the suit."

The final decree in the case which is under review granted an absolute divorce to the plaintiff, with leave to either party to marry again and awarded costs against the defendant.

Further facts in reference to the allegations of the original and amended bills will appear in the opinion of the court.

W. B. Snidow, of Pearisburg, for appellant.

Williams & Farrier, of Pearisburg, for appellee.

SIMS, J. (after stating the facts as above). The assignments of error raise a number of questions, but since, in our view of the ease, the court below had no jurisdiction to enter any decree in the cause, it will be unnecessary for us to pass upon any other questions than those concerning the jurisdiction of the court, save one, which will be adverted to below.

1. Section 2259 of the Code, so far as material in the cause before us, provides as follows:

"No suit for annulling a marriage or for divorce shall be maintainable, unless one of the parties has been domiciled in this state for at least one year preceding the commencement of the suit. * * *"

In view of this statutory provision, neither the court below nor any other court in the state had any jurisdiction of the cause before us, unless one of the parties had been domiciled in this state for at least one year preceding the commencement of the suit.

As said in the opinion of the court in the case of Rumping v. Rumping, 36 Mont. 39, 91 Pac. 1057, 12 L. R. A. (N. S.) 1197, at page 1260, 12 Ann. Cas. 1090, quoting with approval from the case of Dutcher v. Dutcher, 39 Wis. 651:

"It concerns the public welfare that the state should not be made a free mart of divorce for strangers, and that, amongst her own people, divorce should not become a matter of free will

* * * —a personal right independent of public right and inconsistent with public welfare. Divorces without the letter and spirit of the statute in fact, but made to look within it by design or mistake or accident, are frauds upon the statute and offenses against public policy. And it is the duty of the courts * * * to look closely into actions for divorce. * * * "

As further said in the opinion of the court in the case of Rumping v. Rumping, supra:

"It is elementary, of course, that neither courts of law or equity have any inherent power to dissolve marriage. The power to decree a divorce is purely statutory. Irwin v. Irwin, 3 Okl. 186, 41 Pac. 369. When, therefore, the Legislature, in conferring upon courts the jurisdiction to grant divorces, says, in the same statute, that a divorce must not be granted unless the plaintiff has been a resident of the state for one year next preceding the commencement of the action, we believe it meant just what it said. * * * In Gredler v. Gredler, 36 Fla. 372, 18 South. 762, the court said: 'The complainant has wholly failed to allege in his bill, or to prove, that he had resided in this state for two years prior to the exhibition of his bill. * * * The fact of the appellant's prior residence for two years in this state was necessary both to be alleged in the bill and established by proof, before the courts were authorized to grant a divorce under our statute.' * * * Under a statute very similar in its phraseology to our own, the Supreme Court of Minnesota held, in Thelen v. Thelen, 75 Minn. 433, 78 N. W. 108, that the fact of the plaintiff's residence was jurisdictional and must be alleged in the complaint."

The statute of Montana (Civ. Code, § 176) involved in the case of Rumping v. Rumping is similar to the Virginia statute above quoted, and is as follows:

"A divorce must not be granted unless the plaintiff has been a resident of the state for one year next preceding the commencement of the action."

Many of the other states have similar statutes under which the holding is well-nighuniversal that it is essential to the jurisdiction of the court that the bill for a divorce should allege "the prerequisite jurisdictional facts as to residence required by the statute." See note to said case of Rumping v. Rumping, 12 L. R. A. (N. S.) 1197 to 1200.

[21 As said in Hogg's Eq. Principles, § 498, p. 666:

"The bill in a suit for divorce should allege the jurisdictional fact with reference to the residence of the parties.

"With us it should aver that the plaintiff and the defendant (or one of them) has resided in the state one year next preceding the time of bringing the suit. * * * In short, enough must appear on the face of the bill to show a right to bring the suit. A decree will be withheld, even though no demurrer has been interposed, unless a right to exhibit the bill appears."

No authority is cited for the defendant counter to the general proposition that a bill for divorce should contain the jurisdictional allegations aforesaid and that the proof in the record must show affirmatively that such jurisdictional fact exists. But it is contended in behalf of the defendant that in Virginia, under section 3260 of the Code, the objection before us can be made only by plea in abatement, and could not be made by demurrer or upon a hearing on the merits.

This raises a question which is unsettled in this state. It was mentioned in the case of Johnston v. Johnston, 116 Va. 678, 82 S. E....