Cakty v. Carty.

• Decision Date: 19 December 1911
• Citation: 70 W.Va. 146
• Parties: Cakty v. Carty.
• Court: West Virginia Supreme Court

70 W.Va. 146

Cakty

v.Carty.

Supreme Court of Appeals of West Virginia.

Submitted June 11, 1910.

Decided December 19, 1911.

1. Divorce Grounds Desertion.

A wife, deserted by the husband without cause at the marital domicil in another state, may acquire in good faith a separate domicil in this state and under our laws obtain a divorce on the ground of the desertion, though the husband is a non-resident and is only constructively served by publication, (p. 147).

2. Same Grounds.

Where the plaintiff in a suit for divorce has been actually and in good faith domiciled in this state for one year next preceding the bringing of the suit, it is no valid reason against granting the relief that the original marriage status was in another state, or that the cause for which the divorce is sought arose outside of the state, or that the defendant is a non-resident and only constructively notified, (p. 150).

Apj)eal from Circuit Court, Brooke County. Bill by Nettie Carty against Hugh Carty. Decree for defendant, and complainant appeals.

Reversed and Decree Entered. R. L. Ramsey and A. Gist, for appellant.

Bobinson, Judge:

Plaintiff and defendant were married in this state. They took up a domicil in Ohio. After residing together there for a short time plaintiff returned to this state for a holiday visit with her mother. While making this visit, she received a letter from defendant notifying her that he was forwarding her clothes and announcing his intention to desert her. She returned to the domicil in Ohio, but the house was empty. Defendant had sold the household effects and departed. He had left no word as to his whereabouts. Plaintiff returned to the home of her mother in this state, where she has since resided continuously, supporting herself as a mill worker. In all that time, more than three years, plaintiff has never seen defendant.

Plaintiff, in the county of her residence in this state, sought a divorce from the bonds of matrimony, on the ground of defendant's desertion, proceeding against defmdant, a nonresident, by order of publication. The circuit court denied the relief prayed. The decree expressly states that relief is denied because it appears from the evidence "that the ground of action arose outside of the state;" that jurisdiction was obtained only by constructive service; that defendant is a non-resident; and "that the marriage status was outside the state."

Plaintiff sufficiently alleges and proves that she has resided in this state for more than one year next preceding the time of bringing her suit; that defendant wilfully deserted her, without justifiable cause; and that the desertion has continued for more than three years. Ordinarily the case would warrant a decree of absolute divorce. Do the reasons assigned by the court below justify its refusal of a decree?

Plaintiff became a bona fide resident of this state after defendant deserted her. Through the necessity of her situation, she came here to live. It was natural that she should return to her old home when she found herself an abandoned wife. There is not a word of evidence from which it can be inferred that she merely came to this state to seek a divorce. The circumstances all negative any such intention on her part. She returned to this state, again to become one of its citizens, because the desertion by her husband enforced upon her the necessity of leaving strangers and seeking refuge in a native land among friends. Having in the best of faith become a resident of this state, plaintiff is entitled to the protection of the laws made for the good order and well being of its people.

To such a citizen as plaintiff has become, the statutes of the state vouchsafe right to the relief she asks. Any one who has in good faith resided in the state for more than a year is entitled to seek a divorce under its laws. Hear the statute: "The circuit court on the chancery side thereof shall have jurisdiction of suits for annulling or affirming marriages, or for divorces. No such suit shall be maintainable, unless the parties, or one of them, shall have resided in the State one year next preceding the time of bringing such suit. The suit shall be brought in the county in which the parties last cohabited, or (at the op- tion of the plaintiff) in the county in which the defendant resides, if a resident of this State; but if not, then in the county in which the plaintiff resides. Such suit may be brought and prosecuted by the wife in her own name, without a next friend, and a decree may be rendered in the case upon the publication of the summons and statement as provided in chapter one hundred and twenty-four of this Code." Code 1906, ch. 64, sec. 7. By another section, it is provided that a divorce from the bonds of matrimony may be decreed to the party abandoned "where either party willfully abandons or deserts the other for three years." Code 1906, ch. 64, sec. 5. These statutes have been enacted for the protection and welfare of our people. Any one domiciled within the borders of the state for the time required may avail himself of the efficacy of these provisions of law. For the welfare of the society of which he has become a member, he may by these laws promote his status as such member of society. At least one of the parties to a divorce suit must have resided within the state for the period of one year next before the suit is brought. But, by the very terms of the statute, both parties need not reside in the state to justify the pendency of the suit. The statute plainly contemplates that a resident]Dlaintiff may sue a non-resident defendant. It says a plaintiff may sue in the county of his own residence when the defendant is a non-resident. Provision is made for constructive service by publication.

Plaintiff returned to this state bringing with her the status of a married woman. When she acquired a new domicil here, that status pertained to the domicil. It is on that status that the suit for divorce, under the laws of the domicil, acts. When she sued for divorce, the marriage status was not outside the state, as the lower court held. As to plaintiff, that status was with her in this jurisdiction, subject to the operation and effect of our laws. "The right of any State to declare the status of its own domiciled subject is absolute. Without this right, no ruler could be a sovereign in his own dominions. And both in reason and by the highest judicial authority in our country, this doctrine applies as well to a husband or...