Foss v. Foss

• Decision Date: 28 January 1927
• Citation: 105 Conn. 502,136 A. 98
• Court: Connecticut Supreme Court
• Parties: FOSS v. FOSS.

136 A. 98

105 Conn. 502

FOSS v. FOSS.

Supreme Court of Errors of Connecticut.

January 28, 1927

Appeal from Superior Court, Fairfield County; John R. Booth, Judge.

Action by Helen L. Foss, because of alleged intolerable cruelty against Archibald C. Foss, in which defendant filed a cross-complaint on same ground. Judgment for plaintiff, and defendant appeals. Error, judgment set aside, and superior court directed to dismiss action for want of jurisdiction.

Carl Foster, of Bridgeport, and Warren F. Cressy of Stamford, for appellant.

John F. Keating and Norris E. Pierson, both of Stamford, for appellee.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.

WHEELER, C.J.

This is an appeal by the defendant from a judgment granting a divorce to the plaintiff on the ground of intolerable cruelty. Three separate grounds of jurisdiction were alleged in the complaint, two of which are within the express provisions of General Statutes, § 5286, as amended by chapter 227 of the Public Acts of 1923, and the third was held by the trial court to be within the fair implications of another of the grounds of jurisdiction named in this section. Manifestly the finding fails to support the two which are within the express terms of the statute. The trial court assumed jurisdiction upon the third ground, that alleged in paragraph third of the complaint, that--

" The plaintiff removed into this state on or about November 5, 1924, and has resided continuously therein since said date, and cause of divorce as set forth in this complaint arose after said removal."

The provision of chapter 227 of the Public Acts of 1923, upon which the trial court relied to support the ground of divorce thus alleged, is as follows:

" If the plaintiff shall not have continuously resided in this state three years next before the date of the complaint, it shall be dismissed, unless the cause of divorce shall have arisen subsequently to the removal into this state."

The superior court thus has jurisdiction to grant a divorce to one for a cause of divorce which has arisen subsequently to his removal into this state. The statute does not specify whether the applicant be a resident of, or domiciled within, the state, nor what duration of residence shall be sufficient. If mere residence would suffice, a week or even a day would suffice. There is nothing in the statute to require the period or any part of the period (five months) during which plaintiff is alleged to have continuously resided in this state. A mere residence, whether continuing five months, more or less, would then be sufficient to give our court jurisdiction of an action for divorce which arose after the applicant removed into this state. Our court was early called upon to determine what would give a court jurisdiction for such a cause of divorce. In Sawtell v. Sawtell, 17 Conn. 284, we said:

" If the parties both become inhabitants of this State, having their domicil here, and then the husband becomes habitually intemperate, treats his wife with intolerable cruelty, or commits adultery, a divorce may be granted, although there has not been a residence of three years within this state."

In the recent case of Morgan v. Morgan, 103 Conn. 189, 195, 130 A. 254, 257, we said:

" It is also almost universally recognized as a prerequisite to jurisdiction of divorce that one of the parties should be domiciled in the forum at the time when the action is commenced. In the absence of a statute expressly dispensing with that necessity, no court of one of our United States would be likely to assume jurisdiction to alter the marital status of a husband and wife, who were domiciled in another sovereign state."

Of a divorce obtained in South Dakota, we said:

" Domicile on the part of the plaintiff was a necessary condition precedent to the jurisdiction of the court, since the situation presented no other feature capable of furnishing jurisdiction of the res, to wit, the existing marriage status." Gildersleeve v. Gildersleeve, 88 Conn. 689, 692, 92 A. 684, 685 (Ann. Cas. 1916B, 920).

Domicile may be acquired without a prolonged residence. Morgan v. Morgan, 103 Conn. 189, 130 A. 254. Two conditions must obtain in order to establish a domicile, an actual residence coupled with the intention to make the place of residence one's home; that is, his established or permanent place of abode. McDonald v. Hartford Trust Co., 104 Conn. 169, 177 to 180, inclusive, 132 A. 902. The intention may be found by the trial court, or it may be a necessary inference from the facts found of a " " residence * * * so permanent as to exclude the existence of an intention to make a domicile elsewhere, and so permanent as to exclude an existing intention to return to [the former domicile] Hartford." Hartford v. Champion, 58 Conn. 268, 276, 20 A. 471, 474. Sometimes we find courts have used " residence" with the meaning of domicile as was shown by the context. It was thus used in Gildersleeve v. Gildersleeve, 88 Conn. 689, 692, 92 A. 684, Ann.Cas. 1916B, 920.

It needs neither argument nor authority to demonstrate that the plaintiff upon the facts found could not have acquired a domicile independent of that of her husband. The plaintiff's domicile followed that of her husband. Mason v. Fuller, 36 Conn. 160, 162; McDonald v. Hartford Trust Co., 104 Conn. 169, 177, 132 A. 902. But the defendant's domicile has not been found by the trial court, or facts found from which the domicile might be found, either in New York where he resided from 1914 to June, 1924, when he removed to Connecticut, or elsewhere. If the finding showed that the defendant had a domicile in New York during this period, or at about the time he removed to Connecticut, that domicile continued until he had established another. There is no claim by the plaintiff that the defendant husband had attempted to establish a domicile in Connecticut. Since the plaintiff wife's domicile followed that of her husband, her right to maintain her action is dependent upon her establishment of her husband's domicile in Connecticut at the time she brought this action in April, 1924. The only facts found which have relation to the husband's domicile are these: When they were married on September 9, 1913, they were both residents of Darien in this state. Immediately after their marriage they lived in New York City until the spring of 1914, when they went to live in Darien and remained there until the autumn of that year, when they returned to New York City and remained there until the spring of 1915. At this time they purchased a house in Darien and occupied it for three years. After that time and until June, 1924, they resided in different places in New York City. At this time the plaintiff went to her father's home in Wisconsin, remaining there and in Minneapolis until about November 1, 1924, when she returned to New York City intending to make her residence wherever her husband and child resided, and was there met by defendant and told by him that he had closed up their apartment in New York and taken up his residence in Darien, and was sent by him there, to the house then occupied by him. Soon after his wife, the plaintiff, had gone in June, 1924, to her father's in Wisconsin, the defendant closed their apartment in New York, removed all their furniture therefrom and stored it, and went to Darien, where he took up his residence with their child in a house belonging to his sister and has resided there ever since. When this action was brought he had thus resided in Darien about nine months. The court finds:

" The defendant, however, did not return to Connecticut in the summer of 1924, with the intention of permanently remaining, nor has it been the intention of the plaintiff, since instituting this action, of permanently remaining in this state."

The court sustained defendant's claim that he " in returning to the state of Connecticut on November 5, 1924, had no intention of permanently remaining in the state of Connecticut." If not all, these are at least all of the salient, facts which have a bearing upon this point.

" Domicile," as we have pointed out, consists of two features, an actual residence in a place accompanied by the intention to make that the ordinary dwelling place, that is, the home, of the person. McDonald v. Hartford-Trust Co., 104 Conn. 169, 177-180, 132 A. 902. Sometimes this intention is expressed in the making of one's established or permanent place of abode with no present intention of removing elsewhere. We emphasized this in Gildersleeve v. Gildersleeve, 88 Conn. 688, 692, 92 A. 684, 685 (Ann. Cas. 1916B, 920), when we said:

" The trial court has found that Mr. Gildersleeve in 1894, ‘ went to Sioux Falls in the state of South Dakota to reside, and there resided for about two years.’ The word ‘ reside,’ as also its cognate ‘ residence,’ is employed in a wide variety of significations. It is evident, however, that the trial court did not use it in the passage quoted to indicate a mere bodily presence or temporary sojourn, but as descriptive of an established place of abode adopted with no present intention of removing elsewhere, and thus as synonymous with domicile."

In the case before us we have no finding that the defendant had the intention of making his residence in Darien his home or his established place of...