Elsie Boos v. Peter Boos.

• Decision Date: 08 May 1923
• Docket Number: No. 4752.,4752.
• Citation: 93 W.Va. 727
• Court: West Virginia Supreme Court
• Parties: Elsie Boos v. Peter Boos.

93 W.Va. 727

Elsie Boos

v.Peter Boos.

No. 4752

Supreme Court of Appeals of West Virginia.

Submitted May I, 1923.

Decided May 8, 1923.

1. Divorce Circuit Court Has Jurisdiction, Where Parties Resided Within the State for a Year or More, Notwithstanding Husbands Intention not to Become Permanent Resident.

Where the husband and wife have resided in this state for one year or more, the circuit court of the county in which they last cohabited together has jurisdiction of a suit for divorce instituted by the wife for causes arising either before or during their residence in this state, although the husband contends that he never intended to make this state his permanent place of abode, (p. 731).

2. Same False Charge of Prostitution by Husband Constitutes Cruel Treatment,.Entitling Wife to Divorce.

A charge of prostitution made by the husband against the wife falsely is equivalent to cruel treatment on his part and entitles the wife to a divorce from bed and board, (p. 732).;

3. Same Disposition. Where Appellate Court Reverses Decree Denying Wife Relief Stated.

Where this court reverses a decree denying a wife a divorce from bed and board and dismissing the bill, and awards to her the relief prayed for, entering such decree as the lower court should have entered, the custody of the minor child also will be decreed as the circumstances of the parents and the benefit and welfare of the child may require; and the cause will be remanded for the award of alimony, if any, in such sum as the lower court may deem proper. (p. 735).

4. Same Parent and Child Father and Mother Living Together Have Equal Rights and Duties in Respect to Custody and Services of Minor Child: Equity May Award Either Parent Custody of Minor Child as Its Welfare Demands. and May Alter it With Changing Circumstances in Awarding Custody. Welfare of Child Controlling Factor.

The father and mother of their minor child, if living together, have equal powers, rights and duties in respect to its custody, control, services and earnings; and where the parents have separated and suit for divorce has been instituted, a court of equity has inherent and statutory power to award to either the custody, care and maintenance of the child, as the welfare of the child demands; and may from time to time revise or alter its decree in that regard as the circumstances of the parents and the welfare of the child may dictate. The paramount and controlling factor is the welfare of the child. (p. 735).

Appeal from Circuit Court, Berkeley County.

Suit for divorce by Elsie Boos against Peter Boos. From a decree dismissing the bill and awarding custody of the infant child to defendant, plaintiff appeals.

Reversed, and decree rendered for plaintiff, and cause remanded.

Allen B. Noll, C. N. Campbell and J. 0. Henson for appellant,

A. C. McIntire, for appellee.

LLVELY. Judge:

The decree of April 1, 1922. appealed from, denied plaintiff the relief prayed for in her bill, dismissed the bill, and awarded custody of the infant child, Margaret Boos, to defendant.

The bill, filed at June Rules, 1920. prays for a divorce from bed and board from defendant on the ground of cruel and inhuman treatment causing reasonable apprehension of serious bodily hurt to plaintiff and because of a false charge of prostitution made against her by defendant; and as incidental to the suit she asks for alimony pendente lite and permanently and the custody of the infant child. Margaret, four years of age; and a restraining order against defendant from further prosecuting a writ of habeas corpus awarded him for the purpose of obtaining custody of the child. The answer filed at the September term, 1920, denies the material allegations of the bill and asks that the custody of the child be awarded to defendant. The cause was referred to a commissioner who took evidence and filed a report at the February term, 1922.

Plaintiff, while at a music school in Virginia, then being eighteen years of age, began corresponding with defendant who lived in Sheboygan, Wisconsin, as the result of a matrimonial advertisement. After an exchange of photographs and numerous letters, she visited defendant and his family in Wisconsin, and after a short courtship of a few weeks they were married. The husband was then 33 years old. It was an unhappy marriage. Defendant was poor, and she assisted in various ways to make a living. She worked in a store and in a restaurant when her health and condition permitted. Mutual dissentions arose. His business efforts were not successful and want was ever present, She charges that he forced her on one occasion to assist him in sawing wood which caused a miscarriage followed by serious illness. On another occasion he accused her indirectly of having illicit relations with other men while she was working in a factory. She accuses him during this period of residence in Wisconsin, of cursing her and calling her improper names. These accusations are denied by him. Within this time the child, Margaret Boos, was born. It is evident that the marriage relations became strained to such an extent that she contemplated leaving him. In 1918 the mother of the plaintiff, Mrs. Howard, visited them in Wisconsin. Plaintiff, by working in a munitions factory, obtained sufficient money to accompany her mother home to Martinsburg in this state, ostensibly on a visit, accompanied by the child. After a month or six weeks of rest she obtained work in a knitting mill at Martinsburg.

Letters of a friendly nature were interchanged between her and her husband, and it is evident that he expected her to return to Wisconsin. However, in the spring of 1919 he came to Martinsburg. He claims that it was never his intention to make his permanent residence in this state; that it was always his intention to return to Sheboygan. However, he shipped his furniture and household goods to Martinsburg, where they were stored with his mother-in-law, where he and his wife resided she continuing to work in the knitting mill. After some time he obtained employment, On a Sunday morning in October, 1919, he took the child out for a walk. as was his usual custom, boarded a westbound train and started for Wisconsin. He Was overtaken in Ohio by the wife and her sister and brother-in-law, and the child was recovered by the aid of police authorities of Akron, and the mother returned with the child to Martinsburg. The husband proceeded to Wisconsin. Later he returned to Berkeley county and sued out a writ of habeas corpus for the possession of the child. Pending the hearing of the writ the judge admonished the parties that they should make an effort to continue the matrimonial relations on account of the welfare of the child. Defendant had been accorded the right to take depositions of witnesses in Wisconsin to show his fitness to have custody of the child. An effort was made at reconciliation, which appears to have been abortive. Defendant had then obtained work at different occupations, making from $80 to $125 per month, and remained in Martinsburg or its near vicinity. In May, 1920, he went to the home of his mother-in-law Where his wife had resided with the child all this time, for the alleged purpose of obtaining some bed clothes which were in the attic. On this occasion he is charged wdth having accused his wife of prostitution, the details of which will hereinafter be set out. At the following June rules she filed this bill for divorce. Pending the suit he was required to pay suit money and $25 per month for the support of his wife and child. Becoming delinquent in payment of the temporary alimony a rule for contempt was awarded against him. He left the state, and the rule for contempt is vet pending.

Defendant says the decree should be affirmed because: (1) plaintiff being a married woman could not acquire a domicile different from that of her husband, which he avers was in Wisconsin, and therefore the court was without jurisdiction to entertain her bill; (2) plaintiff failed to prove such cruel and inhuman treatment as would entitle her to a divorce a mensa et thoro.

Did the court have jurisdiction? The bill avers that plaintiff has been for more than a year next preceding the institution of the suit a bona fide resident of Martinsburg, and that she and defendant last cohabited together in Berkeley county in this state. The proof shows that she came from Wisconsin to Martinsburg the latter part of December, 1918, with her mother and child, not having decided at that time whether she would return to Wisconsin. Defendant came to Martinsburg in May, 1919, where they resumed marital relations. While he says he never intended to make this state his place of permanent residence, he brought his household goods and furniture and stored them at the home of Mrs. Howard. In October of that year he left with the infant for Wisconsin with the result above set out, returning a short time thereafter for the purpose of obtaining the custody of the child by habeas corpus, and remained until after this suit had been instituted in June, 1920. The place where the parties live together as husband and wife is their matrimonial domicile. Our statute, sec. 7, chap. 64, Code, requires that the plaintiff must be an actual bona fide citizen of the state with residence in the state for at least one year prior to the institution of the suit. The word "residence" as used in divorce statutes is almost universally construed as equivalent to "domicile." Cohen v. Cohen, 26 Del. 361; Harrison v. Harrison, 117 Md. 117; Hall v. Hall, 25 Wis. 600; People v. Plat', 50 Hun. (N. Y.) 454; Andrews v. Andrews, 176 Mass. 92; State v. Davis, 199 Mo. A. 439; Bechtel v. Bechtel, 101 Minn. 511: 12 L. R. A. (N. S.) 1100. "The domicile of a wife for the purpose of divorce is not necessarily that of the husband, but it is sufficient if she is a bona fide resident of the state where suit is brought, especially where she remains in the place where they last had their domicile, but only where...