Ga. L. Sutton v. 1945

• Decision Date: 27 November 1945
• Docket Number: (No. 9667)
• Citation: 128 W.Va. 290
• Court: West Virginia Supreme Court
• Parties: Georgia L. Sutton v. Theodore Emmett Sutton1945.

128 W.Va. 290

Georgia L. Sutton

v.Theodore Emmett Sutton

1945.

(No. 9667)

Supreme Court of Appeals of West Virginia.

Submitted September 25, 1945.

Decided November 27, 1945

1. Domicile

A person who has long been a resident of this state, but who removes from his dwelling house therein and goes to another state and resides there during the greater portion of each year thereafter, with the intention of remaining indefinitely, thereby establishes his domicile in and becomes a resident of the state to which he has so removed and ceases to be a resident of this state within the meaning of Code. 48-2-8.

2, Appeal and Error

The finding and the judgment of a trial chancellor, based on conflicting evidence, by which a plea in abatement putting in issue the jurisdiction of the court was sustained, will not be disturbed on appeal, where no error of law appears and the finding and the judgment are not clearly wrong or against the preponderance of the evidence.

Appeal from Circuit Court, Wood County.

Suit for divorce by Georgia L. Sutton against Theodore Emmett Sutton. From a decree dismissing her bill of complaint, the plaintiff appeals.

Affirmed.

Wm. Bruce Hoff, for appellant.

M. E. Boiarsky and E. F. Folger, for appellee, Raymond, Judge:

The plaintiff seeks a reversal in this Court of a decree of the Circuit Court of Wood County which dismissed her bill of complaint on the ground that the court did not have jurisdiction of the case.

On November 29, 1942, the plaintiff, then Georgia L. Goddard, aged forty-nine, and the defendant, Theodore Emmett Sutton, aged sixty-seven, were married at St. Petersburg in Pinellas County, Florida. It was her first, and his third, marriage. Following the marriage they lived together as husband and wife in that county and state until April 1, 1943, when they began a trip by automobile to Wood County, West Virginia, where the plaintiff had resided until just before her marriage to" the defendant. They reached Williamstown on or about April 5, 1943, and there separated upon their arrival. The plaintiff thereafter remained at her former residence in that locality, and since April 5, 1943, the parties have not lived together as husband and wife. Following their separation, the plaintiff, on May 19, 1943, instituted this suit in the Circuit Court of Wood County, West Virginia.

She asks a divorce from the defendant on the ground of cruel or inhuman treatment. Process was issued and personally served upon the defendant in that county. He appeared and filed two pleas in abatement, by which he denied that the Circuit Court of Wood County had jurisdiction of the case. Issue having been joined upon the pleas and the general replication of the plaintiff, the matters arising thereon were heard by the court. By decree entered December 31, 1943, the court sustained the pleas in abatement, dissolved the temporary injunction which had been awarded the plaintiff on May 19, 1943, restraining the defendant from mortgaging, selling or otherwise disposing of his Williamstown property, and dismissed the bill of complaint at the cost of the plaintiff. From that decree she has appealed to this Court.

In and by the final decree the trial court found from the evidence: (1) That, at the time the plaintiff's alleged cause of action arose, the defendant was a bona fide resident of the State of Florida; (2) that the defendant had not been such a resident of the State of West Virginia for at least one year next preceding the commencement of the suit; and (3) that the court did not have jurisdiction of the defendant and of the subject matter of the litigation.

The evidence, which is voluminous, is conflicting upon the issues raised by the pleas in abatement. The controlling question upon which the evidence centers is the domicile or residence of the defendant within the meaning of Code, 48-2-8 (b), which provides that if the cause for divorce is other than adultery suit shall not be maintainable unless one of the parties was at the time the cause of action arose, a bona fide resident of this State, and has been such a resident for at least one year next preceding the commencement of the suit.

If the defendant, who is conceded to have had this domicile at Williamstown, in Wood County, West Virginia, for many years prior to the early part of the year 1941, at which time he asserts he gave up his residence at that place and established his domicile in Florida, in fact continued to retain his domicile in Wood County until the commencement of this suit on May 19, 1943, then he was a bona fide resident of this State within the terms of the statute. In that situation, the plaintiff, while living with him as his wife, was likewise a resident of Wood County; for in such circumstances, upon the theory of identity of person, the law fixes the domicile of the wife by that of her husband and denies her, during cohabitation, the power of acquiring a domicile of her own separate and apart from him. Domicile, 19 C. J. 414; Taylor v. Taylor, 128 W. Va. 198, 36 S.E. 2d 601, decided at this term of Court. Likewise her residence in Wood County continued without interruption after her return to, and their separation in, that county in April, 1943, where she has since made her home. If their status as to residence was that outlined above, as plaintiff vigorously contends, it is obvious that the Circuit Court of Wood County had jurisdiction of this suit.

If, however, the defendant terminated his domicile in Wood County, West Virginia, on or about April 1, 1941, as he testified he did, and immediately thereafter established, and has since maintained, his domicile in the State of Florida, then neither the plaintiff nor the defendant was a bona fide resident of this State within the provisions of the statute, Code, 48-2-8 (b), at the commencement of this suit; and consequently the Circuit Court of Wood County was without jurisdiction to entertain the cause. That this was the actual status of both parties when this suit was instituted is the contention of the defendant.

In this jurisdiction, and generally, residence, as used in the divorce statutes, is treated as the equivalent of domicile. Boos v. Boos, 93 W. Va. 727, 117 S. E. 616; Taylor v. Taylor, supra; 19 C. J. 397. To ascertain and determine the domicile or residence of the defendant, at the time the cause of action arose and for at least one year next preceding the commencement of this suit, which, as above stated, bears upon and fixes the status of the plaintiff for the purpose of this case, it is necessary to recite and consider the salient facts disclosed by the evidence on that question.

Prior to the year 1933, the defendant had been engaged in business as a decorator. About that time he began to withdraw from that business and to devote his attention to the painting of pictures. As long ago as 1938, five years before this litigation began, he had ceased to be active in his earlier trade, and since then his interest and business activities have been directed chiefly to the art of painting. In 1927., while residing with his first wife and their two children in Williamstown, West Virginia, he began to spend a part of each winter in Florida. From 1927 to 1936 he and his family went to that State annually, except during two years, and on his visits there he lived in an apartment owned by one of his friends.

In 1938, his first wife died at his home in Williamstown. In January, 1940, he married a second time at Ocala, Florida, and he and his wife traveled in that State and. lived at the Sass Hotel in St. Petersburg, where they usually had their meals. They made various trips separately and together to other states, and one trip to Mexico. After that he came to Williamstown, staying about a month, and then joined his wife at her former home in Iowa. They returned to Williamstown in the summer or fall of that year and remained there until about November 1, 1940. After visiting in Iowa and California, they went back to Florida about January 1, 1941, and lived at the Sass Hotel in St. Petersburg. His second wife left him in March, 1941, and went to her former home in Iowa, and thereafter she and the defendant never lived together.

In May of that year he came back to Williamstown. He spent part of that summer in New York and in the fall he returned to St. Petersburg where he again lived and had his meals in the Sass Hotel. He testified that on January 1, 1941, he became a citizen of Florida and on April 1, 1941, a resident of that State, in order to exhibit his paintings to better advantage. He was a member of an art club in St. Petersburg, but did not join a similar organization in Wood County, West Virginia. On June 5, 1942, he sued his second wife for divorce in a Florida Court, alleging in his verified bill of complaint that he had been a bona fide resident of Pinellas County in that State for more than ninety days prior to the filing of the bill of complaint, and on November 27, 1942, the court...