Clark v. Clark

• Decision Date: 05 March 1906
• Citation: 77 N.E. 702,191 Mass. 128
• Parties: CLARK v. CLARK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

191 Mass. 128

77 N.E. 702

CLARK v. CLARK.

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1906

COUNSEL

Lafayette G. Blair, for libelant.

OPINION

KNOWLTON, C.J.

This is a libel for divorce, brought by a wife against her husband on the ground of adultery. At the time of their marriage both parties were residents of Massachusetts, where the libelant had previously lived with her parents in Boston. After their marriage they continued to live in different places in Massachusetts for about five years, until July, 1903, when they went to Pennsylvania, where they remained for a short time at Williamsport, and afterwards went to Scranton in the same state, and resided there until October, 1904. In that month they went to Poughkeepsie, N. Y., and lived together there until December 15, 1904, when the libelant, with her two children, returned to her father's house in Boston where she has since remained. This libel having been brought in Suffolk county, the libelee appeared, and filed a plea to the jurisdiction. The sole question presented by the bill of exceptions arises upon the ruling of the court in favor of the libelee on this plea.

The evidence would have warranted a finding that the libelee committed adultery while he was living with his wife in Massachusetts, and that she knew nothing of it, although he contracted a veneral disease, about which he made false statements, such that she misunderstood his condition. There was also evidence that, which living in Scranton, he again contracted such a disease, in July, 1904, of which he was subsequently cured, and that afterwards in December, 1904, in Poughkeepsie, he again committed adultery. There was testimony that the libelant was young and inexperienced, and believed the false statements made by her husband in regard to his condition. She testified that her first information of the truth came from a lady friend late in 1904. From the time of receiving this information she ceased to cohabit with him, and has had nothing to do with him since her discovery of his adultery in December, 1904. On this evidence the judge might have found that she had no knowledge of his adultery until she received this information, and that she did not condone it at any time, or he might have found that, relying either altogether or in part upon his false statements, she condoned his earlier offense upon his implied promise to be faithful to her thereafter, and on discovery of his later transgression withdrew her condonation. Clark v. Clark, 97 Mass 331; Robbins v. Robbins, 100 Mass. 150, 97 Am. Dec. 91; Sewall v. Sewall, 122 Mass. 156, 23 Am. Rep. 299; Smith v. Smith, 167 Mass. 87, 45 N.E. 52. The husband's adultery, committed in Massachusetts, may therefore be relied upon as a cause for divorce, as well as his later offenses committed in Pennsylvania and New York; but the offenses committed in Pennsylvania and New York cannot be relied upon in this suit in Massachusetts, because neither of the parties was living in this state at the time of their commission. Rev. Laws, c. 152, § 4. Under this section, the parties having lived together in this commonwealth, a divorce may be decreed for any cause that occurred here, unless there is some general principal of law that deprives the court of jurisdiction. Under section 6 of this chapter, the libel must be filed, heard and determined in the county in which one of the parties lives, with an exception immaterial to this case. We assume that the word 'lives' in this section is equivalent to 'has a domicile.' Before bringing this suit the libelant had left her husband in Poughkeepsie, and had taken up her residence with her father in Boston. If, by reason of the marital wrongs inflicted upon her, she had a right to establish a domicile apart from her husband's, she was living in Boston within the meaning of the statute, and the court has jurisdiction of the case. We are of opinion that she had this right. The latest discussion of this subject in our reports is in the case of Burtis v. Burtis, 161 Mass. 508, 37 N.E. 740, which did not decide the precise question now before us, because it was not necessary to decide it, but which invoked principles, as the foundation of the decision, that are equally applicable to the present case. In the opinion is this language: '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 his commission of the wrongful act, and the right to be free from the thraldom of this theory of law, and to claim a domicile for herself, according to the fact as shown by her personal residence. If section 5 of Pub. St. 1882, c. 146, applies to a libel brought by a wife as well as to a libel brought by a husband, it seems to recognize the right of a wife to acquire a new domicile, if the hubband does that which entitles her to a divorce.' We are of opinion that this is a correct statement of the law. The Supreme Court of the...