Cairns v. Cairns

• Decision Date: 03 February 1902
• Citation: 68 P. 233,29 Colo. 260
• Parties: CAIRNS v. CAIRNS.
• Court: Colorado Supreme Court

68 P. 233

29 Colo. 260

CAIRNS v. CAIRNS.

Supreme Court of Colorado

February 3, 1902

Error to Jefferson county court.

Action by David A. Cairns against Nellie T. Cairns. From a judgment for plaintiff, defendant brings error. Reversed.

Warwick M. Downing, for plaintiff in error.

Thomas Bryant & Lee, for defendant in error.

STEELE J.

The plaintiff and defendant were married in the dominion of Canada on June 26, 1895. In the fall of that year the plaintiff came to Colorado, and on the 20th of July, 1898 filed his complaint in the county court of Jefferson county asking for a divorce from the defendant upon the ground of desertion. The complaint contains the following allegation 'That on or about the 31st day of July, A. D. 1895, the defendant, disregarding the solemnity of her marriage vow, willfully deserted and absented herself from the plaintiff without reasonable or any cause, and ever since said day has and still continues so to willfully and without reasonable cause desert and absent herself from the plaintiff, so that the plaintiff alleges that the defendant has willfully and without reasonable cause deserted and absented herself from the plaintiff for the period of more than one year immediately prior to the commencement of this action.' After service of the summons the defendant appeared and asked for temporary alimony and counsel fees. The court granted her motion, and allowed her the sum of $40. The defendant filed her answer, denied the allegations of the plaintiff's complaint, denied that plaintiff was a resident or citizen of Colorado, alleged that the plaintiff had deserted her, and asked that the cause be dismissed. Upon the trial it appeared that the plaintiff had declared his intention of becoming a citizen of the United States during the year 1897. It further appeared upon the trial that the defendant left the home of the plaintiff, in Canada, on the 31st of July, 1895. The plaintiff was permitted to testify, over the objection of the defendant, that the defendant had refused to perform her duty as a wife from the date of their marriage. The defendant stated in her deposition that she had given premature birth to a child during the summer of 1895. There are 34 assignments of error. The only ones we will consider are those which relate to the granting of alimony, the citizenship of the plaintiff, and the refusal of the court to sustain the objection to the testimony of plaintiff to matters which occurred prior to the 31st day of July, 1895.

The question of temporary alimony rests largely in the discretion of the trial court, and the ruling of the court should not be disturbed unless there is abuse of that discretion. The defendant resided in the dominion of Canada. The sum of $40 appears to us to be entirely inadequate to enable her to properly defend the suit. As it was, the defendant was required to expend the sum of $60 for the taking of depositions, was not present at the trial, and was not able, therefore, to pay, with the money allowed by the court, her counsel fees or all the costs that she incurred. But we think we should not disturb the verdict because of this ruling of the court, for the reason we have indicated. The court undoubtedly took into consideration the circumstances of the parties, and allowed what, in his opinion, was a just sum to the defendant. In this connection it may be well to state, however, that, when a husband desires the luxury of a divorce from his wife, he should be compelled to pay the expenses of his wife pending the litigation; and, in cases where the wife is a nonresident of the state, if she desires to come to the state of Colorado to make a defense, she should be given an opportunity to do so, and the courts should require plaintiff to deposit in court a sum sufficient to pay the expenses of the wife from her home to the state of Colorado, to be paid to her upon her arrival here within a reasonable time, with such additional sum as may be necessary to properly defend the suit. And in case the plaintiff is unable to make reasonable provision for his wife during the pendency of the suit, the suit should be abated until he is able to do so.

Section 6 of the act authorizing this proceeding is, in part, as follows: 'No person shall be entitled to a divorce in this state unless such person shall have been a bona fide resident and citizen of this state for one year prior to the commencement of the action, which fact shall be proven by the evidence of at least one credible witness other than the plaintiff.' Sess. Laws 1893, p. 239. The law is well settled that one cannot be a citizen of a state unless he is a citizen of the United States; and it is urged by the defendant that the plaintiff, being a citizen of the dominion of Canada, is not entitled to a divorce. In the restricted sense, a citizen of a state is a citizen of the United States domiciled in a state, and the defendant urges that the legislature intended to use the word 'citizen' in this restricted sense. We cannot agree with this contention of counsel. At the time of the enactment of this law, persons were in the habit of coming to Colorado for the sole purpose of obtaining divorces, and the legislature, to prevent this evil, enacted the statute in question. And we are of the opinion that the legislature did not intend that the word 'citizen' should be used in its restricted sense, but in the more general and approved sense,--that of one who has in Colorado a fixed habitation and a permanent residence, without any present intention of removing therefrom. And we are satisfied that by this enactment the legislature did not intend to deny to persons who are not citizens of...