Coulter v. Coulter

• Decision Date: 19 March 1907
• Citation: 100 S.W. 1134,124 Mo. App. 149
• Parties: COULTER v. COULTER.
• Court: Missouri Court of Appeals

100 S.W. 1134

124 Mo. App. 149

COULTER v. COULTER.

St. Louis Court of Appeals. Missouri.

March 19, 1907.

1. DIVORCE—JURISDICTION—DOMICILE.

Under Rev. St. 1899, § 2924 [Ann. St. 1906, p. 1682], providing that no person shall be entitled to a divorce who has not resided within the state one whole year next before filing the petition, except under certain conditions, a residence in the state of one year is insufficient to support an action for divorce unless immediately preceding the filing of the petition.

2. PLEADING—PETITION—AIDER BY ANSWER.

In an action for divorce, the petition failed to allege the facts required by Rev. St. 1899, § 2924 [Ann. St. 1906, p. 1682], providing that no person shall be entitled to a divorce who has not resided within the state one whole year next before filing the petition, except under certain conditions, and defendant wife's cross-bill only alleged her residence in the state one year prior to the filing of her answer. Held, that this allegation did not cure the insufficient allegation of jurisdiction in the petition as to residence.

3. SAME.

In an action for divorce, the petition failed to allege the facts required by Rev. St. 1899, § 2924 [Ann. St. 1906, p. 1682], providing that a residence of one whole year in the state next before filing the petition shall not be necessary, where the offense complained of was committed within the state, or while one or both of the parties resided within this state. The answer and cross-bill of defendant wife denied the charges of indignities made against her, and alleged indignities on the part of the husband, which were shown by the allegations to have been committed in this state. Held, that the allegations of the answer and cross-bill did not supply the defect in the petition by showing that the offenses of which the husband complained were committed in this state.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action for divorce by B. F. Coulter against Alexina G. Coulter. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Jere S. Gosson, for appellant. Ward & Collins, for respondent.

NORTONI, J.

Plaintiff sued for divorce, alleging indignities, and upon a trial the circuit court found the issues in his favor, whereupon a decree was entered to that effect, dissolving the bonds of matrimony existing between the plaintiff and defendant. We have carefully perused the entire record, but refrain from a statement of facts in proof for the reason that the case must be disposed of on a question arising on the pleading. The plaintiff in his petition, instead of averring that he had resided within the state "one whole year next before the filing of the petition," in conformity with the statute (section 2924, Rev. St. 1899 [Ann. St. 1906, p. 1682]), averred that he is a resident of Pemiscot county and "has resided within this state and county more than one year before filing this petition." The statute referred to is as follows: "No person shall be entitled to a divorce from the bonds of matrimony who has not resided within the state one whole year next before filing of the petition, unless the offense or injury complained of was committed within this state, or whilst one or both of the parties resided within this state." At the opening of the trial, the defendant assailed the sufficiency of the petition to confer jurisdiction by interposing an oral objection, which was overruled. In her motion in arrest of judgment, she again directed the court's attention thereto and, upon it being overruled a second time, prosecutes this appeal.

It is indeed familiar law that the allegation of residence contained in this petition is insufficient to confer jurisdiction upon the court to proceed. Now, while it is not essential that the allegation should follow the precise language of the statute in this respect (Hinrichs v. Hinrichs, 84 Mo. App. 27), it should at least conform substantially thereto, so that every material fact pertaining to the requisite residence of the plaintiff in the state, and consequent jurisdiction of the court to hear and determine the cause, may be ascertained therefrom. The statute substantially prescribes as a condition upon which the court shall entertain the bill that the plaintiff shall have resided in this state one whole year "next before filing the petition," and this has been frequently adjudged to mean precisely what it says, and that one whole year's residence prior to the filing of the suit is not sufficient unless immediately preceding, nor is the broad allegation, short of that, sufficient to confer jurisdiction upon the court, for the reason that such whole year's residence may have been far removed from the time of the filing of the suit, whereas the residence contemplated by the statute is a whole consecutive year next immediately preceding the date of the institution of the suit, and this has been the adjudicated law in this state since Cheatham v. Cheatham, 10 Mo. 296. See, also, Collins v. Collins, 53 Mo. App. 470; Carter v. Carter, 88 Mo. App. 302; Johnson v. Johnson, 95 Mo. App. 329, 68 S. W. 971; Stansbury v. Stansbury, 118 Mo. App. 427, 94 S. W. 566. Indeed, there are instances in which the allegation and proof of one year's residence next before the filing of the suit may be obviated, as appears from the latter clause of the statute quoted, in the following language: "Unless the offense or injury complained of was committed within this state, or whilst one or both of the parties resided within this state." There is no attempt by the pleader, however, to bring himself within the purview of the provisions last quoted; therefore the question is to be resolved under the provisions of the statute pertaining to the residence of one whole year next before filing the petition. It may be that the plaintiff had been a resident of the state more than one year before the filing of the petition, and still not be entitled to avail himself of the process and jurisdiction of our courts for the purpose of divorce in those cases when the offense or injury complained of was not committed within this state, or whilst one or both of the parties resided within this state. He may be a resident of the county, and have resided in the state but a few days next prior to the filing of his petition, and still have resided in the state at some other time anterior thereto more than one...