Davidson v. Helm
| Decision Date | 16 February 1953 |
| Docket Number | No. 40493,40493 |
| Citation | 63 So.2d 866,222 La. 759 |
| Parties | DAVIDSON v. HELM. |
| Court | Louisiana Supreme Court |
Arthur V. Flotte, New Orleans, for plaintiff-appellant.
Defendant absent and not represented.
In this suit plaintiff alleges that she has not lived with her husband since about August 10, 1946, a period of two years and more and that she is therefore entitled to a divorce a vinculo matrimonii as provided for in LSA-R.S. 9:301.
From the averments of her petition it appears that plaintiff, Cora Davidson, domiciled in the city of Biloxi, Miss., was married to the defendant, Edward W. Helm, on August 3, 1946, in the City of Gretna, Louisiana, and that they immediately established their matrimonial domicile in the City of New Orleans, Parish of Orleans, Louisiana; that they lived together as man and wife at the matrimonial domicile until August 10, 1946 when they voluntarily separated and that they have not lived together since that date.
Although he was personally served, the defendant made no appearance in answer to the citation he received and in due time a preliminary default was entered against him. On June 19, 1951, more than three days having elapsed since the entry of default, plaintiff, through her counsel, proceeded to take testimony in order to confirm the same. By the note of evidence it is shown that plaintiff had been living in Biloxi, Mississippi, for two years and that her husband was still domiciled in the City of New Orleans at No. 244 South Claiborne Avenue. Plaintiff testified that she and her husband had separated on August 10, 1946, as she had alleged, that they have not lived together since that date, that there was no community property acquired by them and that they had no children. Proof of the separation and living apart was corroborated by her daughter.
The trial judge took the case under advisement and on June 26, 1951, rendered judgment against the plaintiff dismissing her suit at her costs. Plaintiff thereupon applied to this Court for writs of certiorari, mandamus and prohibition which were refused because it was found that her remedy, if any, was by appeal. She immediately moved for and was granted this appeal which she perfected and which is presently before us. Her counsel personally argued the case and submitted a brief; defendant has made no appearance.
Plaintiff predicates her claim for the relief she seeks on the basis of the decision of this Court in the case of Wreyford v. Wreyford, 216 La. 784, 44 So.2d 867, 868, in which the provisions of LSA-R.S. 9:301 were under consideration. The statute was held to partake of the nature of both, substantive and procedural rights, the substantive right being the one which entitled either of the married parties to an absolute divorce on proof of the continuous living separate and apart during a period of two years or more and the procedural right being that by which either of the parties was permitted to bring his or her suit in the Court of his or her residence within this State provided the one bringing the suit in the Court of his or her residence shall have maintained his or her residence therein continuously for the period of two years.
In that case, the wife who was a resident of Caddo Parish, brought her suit for divorce under the provisions of the statute against her husband, a resident of Red River Parish, in the District Court of that Parish which was also the place of the last matrimonial domicile. The defense, presented by an exception to the jurisdiction of that court, was based on the proposition that under the terms of the statute the plaintiff who was prosecuting thereunder had to bring her suit in the court of her residence which was the District Court in and for Caddo Parish and consequently the District Court in and for Red River Parish was without jurisdiction.
It was in rejecting that contention that this Court pointed to both the substantive right of absolute divorce granted under the statute and the additional permissive procedure granted for the exercise of that right. Under the procedural provisions of the statute it was held that either party to the marriage might sue, either in the court of his or her residence, provided he or she had kept his or her residence therein continuously for two years, or, he or she could proceed under the general practice prescribed by Article 162 of the Code of Practice of suing the defendant at his or her domicile or under the other established practice of suing at the last matrimonial domicile. The Court went on to state:
As seems to be emphasized in the opinion in that case, the primary purpose of the statute was to create an additional ground for divorce and in adding to the pre-existing law on the subject, the Legislature, foreseeing the possibility of some question arising as to the proper forum because of the very nature of the new remedy it had afforded, specifically conferred upon the party seeking to avail himself or herself of it, 'the privilege of adjudication in the forum of his (her) residence.'
The district judge did not assign written reasons for judgment in this case but we were given to understand by counsel that he was hesitant to extend the ruling of the Wreyford case and apply it in favor of a party who was no longer a resident of the State but had been living in Mississippi for the past two years. Under the ruling of the Wreyford case, and on the theory on which it is based, we cannot see what difference her being a resident of another State would make. She had acquired the substantive right of an absolute divorce granted under the statute by reason of her continuous living separate and apart from her husband for two years or more and she had the right to enforce it by bringing suit against him in the Court of his domicile or that of the last matrimonial domicile. In this instance, the Civil District Court of Orleans Parish whose jurisdiction she invoked was the Court of both the defendant's domicile and of the last matrimonial domicile and was the proper forum for adjudication. There is nothing in our law which prevents a resident of another State from suing a defendant in an action for separation or divorce in this State if the suit is brought in the proper court.
This question was one that arose in the case of Cotton v. Wright, 189 La. 686, 180 So. 487, 488, in an action for separation brought by a resident of Mississippi in the District Court of the Parish of Terrebonne against her husband who resided in that Parish which was also the place of the matrimonial domicile. At the hearing of a rule for alimony, the defendant excepted to the jurisdiction of the district court of that parish on the ground that plaintiff resided in the State of Mississippi. This Court held that the exception had been properly overruled in the District Court adding:
Likewise it can be stated in this case that under the state of facts presented, regardless of the plaintiff's residence in Mississippi, the Civil District Court of Orleans Parish is clearly vested with jurisdiction.
Satisfactory proof was made on confirmation of default which entitles the plaintiff to judgment in her favor.
For the reasons stated it is ordered that the judgment appealed from be and the same is hereby reversed, annulled and set aside and it is further ordered, adjudged and decreed that there be judmgent in favor of the plaintiff, Cora Dividson, and against the defendant, Edward Helm, decreeing a divorce a vinculo matrimonii and forever dissolving the bonds of matrimony heretofore existing between them. It is further ordered that the defendant pay all costs of this proceeding.
Since the rendition of our decision in Wreyford v. Wreyford, 216 La. 784, 44 So.2d 867, to which I subscribed unreservedly, my view respecting the meaning and intendment of LSA-R.S. 9:301 has changed somewhat. I am of the opinion, as heretofore, that under its provisions either of the married persons is entitled to an absolute divorce, on proof of the continuous living separate and apart during a period of at least two years, and that the action will lie in the court of the residence of the plaintiff husband or plaintiff wife within this State if he or she has maintained that residence continuously for two years. However, contrary to my previous view, I now think that the statute also authorizes the bringing of the suit in the court of the residence of the defendant husband or of the defendant wife within this State if such residence has been continuous for the mentioned two year period.
The initial legislation on the subject, which was Act No. 269 of 1916, provided:
'Be it enacted by the General Assembly of the State of Louisiana, That when married persons have been living separate and apart for a period of seven years or more, either party to the marriage contract may sue, in the courts of the State of his or her residence, provided such residence shall have been continuous for...
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Hinchey v. Hinchey
...procedural or establishing forum or venue, but his dissent holds that the statute limits its benefits to plaintiffs. In Davidson v. Helm, 222 La. 759, 63 So.2d 866 (1953), again under the 1938 Act which at that time had become LSA-R.S. 9:301, the plaintiff had married the defendant in Louis......
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Thomas v. Thomas
... ... See: Wreyford v. Wreyford, 216 La. 784, 44 So.2d 867, and Davidson v. Helm, 222 La. 759, 63 So.2d 866. It should be noted in Davidson v. Helm, supra, the plaintiff was a non-resident of Louisiana; however, the ... ...
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