Burtis v. Burtis
| Decision Date | 20 June 1894 |
| Citation | 161 Mass. 508,37 N.E. 740 |
| Parties | BURTIS v. BURTIS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.M. Brown, for plaintiff.
C.T Dunklee and F.E.H. Gary, for defendant.
The former libel between these parties was dismissed for want of jurisdiction, "without prejudice." There being no limitation upon the effect of the words "without prejudice," they must be taken to have been used generally, and to mean without prejudice to the right of the libelant to bring a new suit, and to try it as if the questions involved were all presented for the first time.
The first three paragraphs of the bill of exceptions state facts which must be treated as agreed or established. There are matters referred to in other parts of the bill in regard to which only the evidence is stated, some of which was apparently uncontradicted. The only question of law raised is upon the refusal of the court to rule, for the purposes of the case, that the domicile of the libelant remained in Boston. There is no dispute that the domicile of both parties was in Boston until the libelee went to Brooklyn, in the state of New York, in September, 1891. The libelant did not go there with him. In July, 1891, she went to California to visit her mother, and she remained there until June, 1892 when she returned to Boston. Her absence was for a temporary purpose, and there is no evidence which would warrant a finding that she acquired a domicile in California. Upon the undisputed facts, her domicile remained in Boston, unless the residence of her husband in Brooklyn, while she was in California, and before she knew of his adultery, and while she expected to return and live with him, worked a change of her domicile. Undoubtedly, it would have had that effect except for his offense, and for her determination, when she discovered it to take advantage of her legal right to proceed against him for a divorce. The change would have come, not because she personally changed her place of abode, but because, in the theory of law, husband and wife are one person, and wherever the wife may be actually, she is constructively with her husband. But this theory or fiction is not applicable to a wife who remains in a place where she and her husband last lived together after he has gone, and brings a suit against him for a divorce founded on his misconduct while they were together. It would be unjust to apply this theory against a woman who is seeking a divorce for a wrong inflicted on her by her husband. In order to obtain her rights under such a rule of law, she might be obliged to follow her husband as often as he migrated, even to the ends of the earth. The American doctrine that a wife may have a separate domicile from her husband when she seeks a divorce on account of a wrong inflicted upon her is therefore well established, but the precise limits of it have never been settled by actual adjudication in this commonwealth. In some of the cases there are statements which imply that from the time of a delictum which would justify the wife in leaving her husband she should be treated as a person who has a right to fix her own domicile, and the husband should not be permitted to assert this fiction of law against her. It may be argued with much force that, if she proves the wrong as she alleges it, she thereby establishes a right to be emancipated from her husband from the time of the commission of the wrongful act, and a right to be free from the thraldom of...
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