Caheen v. Caheen
Citation | 233 Ala. 494,172 So. 618 |
Decision Date | 07 January 1937 |
Docket Number | 6 Div. 27 |
Parties | CAHEEN v. CAHEEN. |
Court | Supreme Court of Alabama |
Rehearing Denied March 4, 1937
Appeal from Circuit Court, Jefferson County; E.M. Creel, Judge.
Bill for divorce and alimony by Rhonnie Ullman Caheen against Julien Sidney Caheen. From a decree sustaining a plea to the jurisdiction and dismissing the bill, complainant appeals.
Affirmed.
Coleman Spain, Stewart & Davies and Carl G. Moebes, all of Birmingham, for appellant.
Clark Williams, of Birmingham, for appellee.
This bill is for divorce and alimony, temporary and permanent.
The bill alleged that complainant "is a bona fide resident citizen of Jefferson County *** and has been for more than three years next preceding the filing of this bill of complaint," and that respondent, Julien Sidney Caheen "is a non-resident of the State of Alabama" and "a resident of the State of Massachusetts."
Respondent Caheen appeared specially and pleaded to the jurisdiction of the court, saying:
"Respondent avers that at the time the bill of complaint in this cause was filed herein complainant was not a bona fide resident of Jefferson County, Alabama, and had not been a bona fide resident of Jefferson County, Alabama, for one year next preceding the filing of such bill of complaint; that at the time the bill of complaint in this cause was filed *** complainant resided in the City of Washington, District of Columbia, and had resided there for more than five months next preceding the filing of the bill of complaint in this cause. *** "Respondent further avers that, as appears from the averments of the bill of complaint, respondent is a non-resident of the State of Alabama."
The trial court sustained the plea on the evidence and dismissed the bill; hence this appeal. Errors assigned challenge the correctness of the decree of the trial court sustaining the plea and dismissing the bill.
It is established that the husband has the right to select a domicile for himself and family, if he reasonably exercises that right. Jones v. Jones (Ala.Sup.) 173 So. 49; Henderson v. Henderson, 228 Ala. 438, 153 So. 646. And it follows, as an established fact, that when the husband breaks up the home the wife may then acquire a residence for purposes now to be considered.
The required residence pertaining to a divorce is indicated in the statute, sections 7415, 7416, Code. If the defendant is a nonresident the bill for divorce must be filed in the circuit court of the county in which the other party to the marriage resides. Wakefield v. Wakefield, 217 Ala. 517, 116 So. 685; Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 820; Wright v. Wright, 200 Ala. 489, 76 So. 431; Pucket et al. v. Pucket, 174 Ala. 315, 56 So. 585.
The decisions are to the effect that "residence" as used in such statutes is the equivalent of domicile; residence means legal residence or domicile for such purposes. Allgood v. Williams, 92 Ala. 551, 8 So. 722; Metcalf v. Lowther's Executrix, 56 Ala. 312. It is therefore a mixed question of law and fact, depending upon the bona fide intention of the party. In Holmes v. Holmes, 212 Ala. 597, 599, 103 So. 884, 886, it was declared:
In the opinion in Lucky v. Roberts, 211 Ala. 578, 580, 100 So. 878, 879, it was said:
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...which may not always be the place of one's actual dwelling, and are to be contra-distinguished from temporary abode. Caheen v. Caheen, 233 Ala. 494, 172 So. 618 [ (1937) ]; Allgood v. Williams, 92 Ala. 551, 8 So. 722 [ (1891) ].“....“The law is also established that a domicile, once acquire......
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