Cook v. Cook

• Citation: 14 N.W. 33,56 Wis. 195
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 21 November 1882
• Parties: COOK v. COOK, IMPLEADED, ETC.

56 Wis. 195

14 N.W. 33

COOK

v.COOK, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed November 21, 1882.

Appeal from circuit court, Dane county.

The circuit court found, in effect, among other things, that the parties were married in New York in 1841, and continued to reside there as husband and wife until 1867, when they came to Rutland, Dane county, Wisconsin, where they continued to reside as husband and wife upon the 100 acres of land in question, belonging to the defendant William Cook, until December, 1874, when the plaintiff, Ellen C. Cook, without objection from William, went to Chicago and there remained for one year, but returned to her former home in Rutland more than a year prior to the commencement of this action, while William continued to reside on the farm in Rutland until December, 1875, when he left this state and went to and became a resident of Shiawassee county, Michigan, where he has since continued to reside, upon a farm purchased by him in November, 1876, and which has since been occupied by him; that as a fruit of that marriage they had eight children, only three of whom are living, the youngest being 23 years of age; that February 9, 1880, William commenced an action for divorce against Ellen, in the circuit court for Shiawassee county, Michigan, on the sole ground that Ellen had deserted him in December, 1874, while he was residing here, and had continued such desertion up to that time; that Ellen was not a resident of Michigan, February 9, 1880, nor at any time, but was a resident of Wisconsin, and has continued to be such; that service was made in that suit upon Ellen by publication in conformity with the laws of Michigan; that Ellen being in default in said suit, judgment of divorce was made and entered therein, June 28, 1880, in favor of William and against Ellen, dissolving said marriage, on the ground that Ellen had been guilty of such desertion; that the ground upon which that divorce was granted was not true; that Ellen did not learn of the commencement of said divorce suit, nor the pendency thereof, nor of said judgment, until September, 1880; that the defendants seek to make said divorce a bar to this action; that in December, 1875, at Rutland, aforesaid, where Ellen and William were then living together as husband and wife, the said William, disregarding his duties and obligations as the husband of Ellen, did willfully, and without cause or provocation, desert, leave, and abandon Ellen, and has since said time remained absent from Ellen and his family, and continued such desertion of Ellen, and now is willfully absent from Ellen and their family; that 40 acres of the land in question was the homestead of William and Ellen from 1867 to some time in December, 1875, since which time Ellen and their family have continued to reside thereon. And as conclusions of law, the court among other things found, in effect, that the Michigan divorce was valid for the purpose of dissolving the marriage contract, notwithstandingthe cause assigned was not true, but that it was no bar to this action for divorce for the desertion alleged and found, and a division of property situated here, over which the Michigan court had no jurisdiction, and that Ellen is entitled to judgment accordingly; that Ellen has no homestead right as the wife of William in any of the lands described in the complaint; that the lease from William to the defendant Brewer be set aside, and Brewer perpetually enjoined from further prosecuting his action for possession thereunder; and that the mortgage on the lands in question, given by William to Brewer, should stand as a valid subsisting lien, and that the title of the land be passed to Ellen by the judgment herein, subject to the payment of the mortgage, and that none of the parties recover costs. From the judgment entered thereon the defendant William Cook brings this appeal.

H. W. Chynoweth, for respondent, Ellen C. Cook.

F. K. Conover and J. H. Carpenter, for appellant, William A. Cook, impleaded, etc.

CASSODAY, J.

It is urged by the learned counsel for the defendant that the Michigan divorce is a complete bar to this action for any and all purposes. The question is important, and we are not aware that it has ever received the consideration of this court. Certain questions have, however, been determined, which may be indirectly involved in the proposition. It has frequently been held that courts in this country possess no power in actions for divorce, except such as are conferred by statute. Barker v. Dayton, 28 Wis. 367;Hopkins v. Hopkins, 39 Wis. 167;Bacon v. Bacon, 43 Wis. 197. Under our statute several questions have been determined by this court.

In Damon v. Damon, 28 Wis. 817, it was held that a claim for alimony is not the subject-matter of a separate suit, but is only auxiliary to, or an incident of an action for, divorce. In that case both parties were residents of Wisconsin.

In Campbell v. Campbell, 37 Wis. 206, both parties resided in this state at the time of the judgment of divorce a vinculo was rendered. Several years after the judgment each party presented petitions respecting the alimony adjudged. It was held, in effect, that the court had continuing authority, after the divorce, to make changes as to the alimony allowed, and the custody of the children decreed, depending largely on the need, age, and other circumstances of the wife and children, and the ability of the husband. The late chief justice there said: “And for somewhat similar reasons, these questions of alimony and custody of children may, in the first instance, be included in the judgment of divorce, or in a subsequent and separate judgment.”

Similar ground was taken in Hopkins v. Hopkins, 40 Wis. 462, where it was held that a judgment for partition or division of the real and personal property of the husband between the parties to a divorce suit is final; but a judgment for alimony, whether payable annually or in a gross sum, may be revived by the court from time to time on the petition of either party. These positions are enforced in Bacon v. Bacon, 43 Wis. 197. This court has held, under our statutes, that a resident plaintiff may maintain an action for divorce in the courts of this state, notwithstanding the marriage was solemnized abroad, and the cause for divorce occurred in another state, and the defendant has never been a resident of this state, nor served with process therein. Manly v. Manly, 3 Pin. 390;Hubbell v. Hubbell, 3 Wis. 662:Gleason v. Gleason, 4 Wis. 64.

In Dutcher v. Dutcher, 39 Wis. 651, it was held that a non-resident plaintiff could not maintain an action for divorce in the courts of this state; and this is the rule even when the marriage has been solemnized in this state, and the cause for the divorce occurred here. In that case the late chief justice took occasion to say: “Wisely or unwisely, it is the policy of the statute to vest jurisdiction of divorce here upon the residence of the plaintiff alone. [Page 657.] * * * Doubtless, for certain purposes. the domicile of the hushand is the domicile of the wife. That rule, however, goes upon the unity of husbandand wife; and very generally, if not always, implies continuing, though temporarily interrupted, cohabitation. It excludes, or should exclude, permanent separation. Permanent separation implies separate domiciles of husband and wife. If the rule were to be applied to cases of desertion, it would imply something like an absurdity. The weight of authority is against the application of the rule as applied to cases of divorce when the parties are actually living in different jurisdictions. * * * The question cannot be considered an open one in this court.” Page 659. The case, as well as the statute, excepted actions “for adultery alleged to have been committed while the plaintiff was a resident of this state.” Section 2359, Rev. St. By the late Revision, a wife, whose husband has deserted her in another jurisdiction and become a resident of this state, is enabled to follow him into the courts of this state, even though she is not a resident. Section 2359, Rev. St. But that is immaterial here, since it is the husband, and not the wife, who is the non-resident. The Michigan statute, like ours, provided that “no divorce shall be granted unless the party exhibiting the petition or bill of complaint therefor shall have resided in this [that] state one year immediately preceding the time of exhibiting such petition or bill.” Section 8, c. 170, Comp. Laws 1871.

From these decisions and this statute it is clearly established that the courts of Wisconsin had no jurisdiction to grant a divorce at the suit of William while he was a resident of Michigan; and the courts of Michigan had no jurisdiction to grant a divorce at the suit of Ellen while she was a resident of Wisconsin. And yet all the while the courts of each had jurisdiction to grant a divorce at the suit of the one residing in such jurisdiction. This restricting, or rather determining, each jurisdiction by its own citizenship suggests the query: Suppose each had commenced an action for divorce on the ground of desertion at the same moment of time, he in a court of Michigan and she in a court of Wisconsin, and each had obtained service by publication in the same way, and each prosecuted such suit to judgment at the same moment of time, which would have the most binding force as to the status of the respective parties, and the property purporting to be affected by it? Would both be void, or both be valid? Or would one be valid and the other void; and if so, which would be valid and which void, and upon what ground would the distinction rest? Was Ellen's only remedy to appear as defendant in a case of which she had no knowledge, in a court which could not take jurisdiction if she appeared as plaintiff, and which could, in no event, give title to the land which she here seeks to have adjudicated?

These questions go to the very vitals of the...