Bowditch v. Bowditch
| Decision Date | 13 July 1943 |
| Parties | HELEN LAFORGE BOWDITCH v. WILLIAM I. BOWDITCH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 12, 1943.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, & COX, JJ.
Marriage and Divorce, Jurisdiction, Foreign divorce. Jurisdiction, Divorce proceedings. Constitutional Law, Full faith and credit Divorce. Domicil. Evidence, Presumptions and burden of proof.
A bona fide domicil in a State of at least the petitioner in divorce proceedings in a court of that State is essential to the jurisdiction of that State to grant a divorce.
One who relies on a divorce granted by a court of another State has the burden of proving the jurisdictional facts underlying the judgment of divorce.
A party to a proceeding in this Commonwealth, who relied on a divorce granted him in an Idaho court under a statute of that State requiring residence therein of a plaintiff for divorce "for six full weeks next preceding the commencement of the action," failed to sustain the burden of proving the essential fact of a bona fide residence in Idaho for the requisite period where the evidence in the proceeding here showed at most that he was at a hotel in Idaho for two days about six months before commencing the divorce action, for ten days about three months before it was commenced and for three days at the time of its commencement.
PETITION, filed in the Probate Court for the county of Norfolk on September 22 1942.
The case was heard by Reynolds, J., and in this court was submitted on briefs.
E. R. Dewing, for the respondent. E. S. Farmer, for the petitioner.
This is a petition for guardianship of the estate in this Commonwealth of the respondent as a spendthrift. The petitioner alleges that she is the wife of the respondent; and that by excessive drinking, gaming, and idleness he so spends, wastes and lessens his estate as to expose his family to want and suffering, and also thereby exposes the "town of Newton" to expense for her and their support. See G. L (Ter. Ed.) c. 201, Section 8; Dexter v. Dexter, 283 Mass. 327 . The respondent filed a plea in abatement as follows: If the petitioner was not the wife of the respondent, not being otherwise related to him, she would have no standing as party petitioner. See G. L. (Ter. Ed.) c. 201, Section 8; Mitchell v. Mitchell, 312 Mass. 154 , 159-162. At the hearing of the plea a stenographer was appointed to report the evidence. After hearing the judge entered the following decree: "After a full hearing on the respondent's `plea in abatement', it appearing to the court that the allegation of fact contained in said plea has not been proved: It is adjudged that said plea in abatement is disproved, and is therefore dismissed.
" Being of opinion that this interlocutory decree so affects the merits of the controversy that the matter ought, before further proceedings, to be determined by this court, the judge reported the same together with "the evidence and all questions of law" for the determination of this court. See G. L. (Ter. Ed.) c. 215, Section 13.
Material facts disclosed by the evidence follow: The parties were married in Newton on February 24, 1934. They then went to live at 1662 Commonwealth Avenue in that city, in a house owned by the petitioner since 1925. This house continued to be the home of the parties. On September 10, 1939, the respondent entered the McLean Hospital in Belmont and remained there until April 9, 1940, when he left the Commonwealth. Arriving at the hospital to visit the respondent on that day, the petitioner found that he was not there. On March 29, 1940, he sent a letter to the trust officer of a trust company that was the trustee under his father's will, in which he said: "I am about to leave on an indefinite trip which is not likely to bring me back to this vicinity for some time." On his departure he took none of his personal effects from his home except a panama hat and a black suit. In answer to interrogatories the respondent stated that he left this Commonwealth because his wife had ceased to care for him, if she ever did, and was interested in having him committed to some institution and having a guardian appointed; that he became acquainted with one Nan Dissel in Seattle, Washington, in 1926; that her husband died in August, 1938; that he had corresponded with her between that date and April 10, 1940, made a telephone call to her in May, 1939, and talked with her; that he saw her occasionally during June and the early part of July, 1940, in Seattle, where he lived at the Hotel Mayflower; that he went to Idaho about the middle of July, 1940, and remained there until the first of the year
1941; that since that date he has lived in Seattle, Washington; and that on May 28, 1941, he and Nan Dissel were married in Coeur d'Alene, Idaho. There was evidence that on October 3 1940, the respondent filed an action to procure a divorce from the petitioner in the District Court of the Third Judicial District of Idaho for the county of Ada, on the ground of extreme cruelty. On that day a summons was issued from that court directing the petitioner herein to appear and plead to the complaint within twenty days of the service. She was served with the summons together with a copy of the complaint at her home in Newton, but she did not appear nor take any part in the proceedings. A decree was entered in the District Court of the Third Judicial District of Idaho on November 8, 1940, wherein it was ordered and adjudged that the marriage "heretofore existing between plaintiff and defendant be dissolved, that they be divorced absolutely and that hereafter they and each of them occupy the status of single, unmarried persons." It was further ordered that neither of the parties should again become married, "unless each to the other, for a period of six (6) months next following the date of judgment herein." There is nothing in the respondent's answers to the interrogatories and cross-interrogatories propounded to him to show at what address he lived in Idaho during the period from about the middle of July, 1940, to the first of the year 1941. But a deposition of the manager of the Hotel Boise, Boise, Idaho, was admitted in evidence from which it appears that the respondent had registered at that hotel on three different occasions in 1940, and that the records of the hotel showed the following registrations by him:...
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