George v. George

• Decision Date: 04 March 1921
• Parties: GEORGE v. GEORGE.
• Court: Kentucky Court of Appeals

228 S.W. 408

190 Ky. 706

GEORGE v. GEORGE.

Court of Appeals of Kentucky.

March 4, 1921

Appeal from Circuit Court, Pike County.

Suit by Mary J. George against E. E. George. From a judgment dismissing the petition, plaintiff appeals. Reversed, with directions.

R. H Cooper, of Pikeville, for appellant.

THOMAS J.

The appellant and plaintiff below, Mary J. George, and the appellee and defendant below, E. E. George, are husband and wife. They were married on October 13, 1892, in the state of Michigan. Children were born to them and they lived together in that state of their matrimonial domicile until 1913, when defendant, as alleged in the petition, abandoned plaintiff without cause and came to the state of Kentucky and located in Pike county, since which time, as alleged, he has accumulated a considerable amount of property, consisting in the main in coal mining operations. Plaintiff continued to reside at the matrimonial domicile in Michigan, and has never had an actual residence or an actual domicile in Kentucky. In January, 1920, she filed this suit in the Pike circuit court (the place of defendant's residence) against him, seeking an absolute divorce upon the ground of "living apart without any cohabitation for five consecutive years next before the application." Plaintiff also asked an allowance of $20 per week alimony and that defendant be required to pay her that sum. The defendant was served with process, but he failed to appear and made no defense to the action. Upon final submission, after proof taken, the court dismissed the petition and declined to adjudge the plaintiff any relief whatever, and, complaining of that judgment, she prosecutes this appeal.

The record does not inform us as to the ground upon which the court acted, but we think, as will hereinafter appear, the court was justified in dismissing the action in so far as it sought an absolute divorce upon two grounds: (1) Want of jurisdiction to grant the divorce because plaintiff was not a resident of this state and had not been continuously so for one year next before the institution of the suit as is required by section 2120 of the Statutes; and (2) that plaintiff did not allege or prove that the cause of divorce relied on was one given by the laws of Michigan, where she resided, and where the separation occurred, as is also required by the same section of the Statutes.

The first reason stated is challenged by plaintiff's counsel because it is insisted that the general principle of law making the domicile of the wife follow that of her husband and likewise as to the residence of the wife, applies in divorce cases, and that plaintiff has all the while since the separation been a constructive resident of the state of Kentucky and constructively domiciled therein notwithstanding she has been actually domiciled in and been an actual resident of the state of Michigan during that time. To this proposition we cannot agree.

An exception to the rule that a wife's domicile or residence is constructively that of her husband is quite universally recognized by courts and text-writers to exist in divorce proceedings, and it is held that either spouse may acquire a separate residence or domicile, after the delictum, and that the right to maintain divorce proceedings will be governed by the local law of the acquired residence or domicile. This exception to the general rule is thus stated in section 112, vol. 2, of Bishop on Marriage, Divorce, and Separation:

"The relation of husband and wife, considered without reference to divorce, makes their habitation one, the husband to determine where it shall be; so that in law her domicile is said to follow his. But a rule of law is qualified by and ceases with the reason whence it is derived. Therefore this rule cannot prevail in a divorce cause, founded on the allegation of a delictum which legally justified a living apart, and took away the husband's right to fix the domicile of the wife. For the allegation of the delictum and the allegation or assumption of a domicile in her derived from his would be repugnant, consequently bad in law. Necessarily, therefore, the law must and does permit separate domiciles for divorce."

The subject is extensively discussed in the annotation to the case of Succession of Benton, reported in 59 L. R. A. on page 135. On pages 146, 147, and 149 of the annotation referred to it is specially pointed out that in cases where it is proper or necessary (which means after the occurrence of the delictum) a wife may acquire for the purpose of a divorce a separate residence or domicile from that of her husband, and that, if she remains at the matrimonial domicile after he has left it, she thereby elects to make it her domicile and that she cannot have another one by construction at the place where her husband is located. In the work of Mr. Bishop, supra, section 119, this particular feature of the wife retaining the matrimonial domicile as hers after abandonment by her husband, who locates in a different state, is specifically dealt with, and the cases of Hopkins v. Hopkins, 35 N.H. 474, Schonwald v. Schonwald, 55 N.C. 367, Kruse v. Kruse, 25 Mo. 68, Pate v. Pate, 6 Mo. App. 49, and Dutcher v. Dutcher, 39 Wis. 651, are referred to. In each of them facts exactly similar to those in the instant case were involved. The husband in each of them left the wife at their matrimonial domicile, where she remained, and afterwards sued him in his newly acquired domicile, but the courts refused her a divorce upon the ground that she was not a resident of the forum.

A short excerpt from the Hopkins Case will serve as an illustration of the rule announced by the author and by the opinions in the cases referred to. In that case the court said:

"When the husband abandoned his wife, necessity of separate and independent existence gave her a separate residence and domicile; and when he came into this state, leaving her in Massachusetts, her domicile remained there with her, and there it still continues."

To the same effect are the notes to the case of McGrew v. Mutual Life Insurance Co., 84 Am. St. Rep. 20, and Locke v. McPherson, 85 Am. St. Rep. 546, on page 562; note to the case of Carty v. Carty, 38 L. R. A. (N. S.) 297; 9 R. C. L. 400, 401; and 19 Corpus Juris, 31-36. In the Ruling Case Law referred to, on page 401, the doctrine applicable to the facts of the instant case is thus stated:

"Where husband and wife have separated and the husband moves to another state and establishes his domicile there, it has been held that his wife does not also thereby become domiciled in that state so as to enable her as a resident thereof to sue her husband for a divorce. The reason given for this ruling is that the domicile of the husband cannot be regarded as fixing that of his wife for the purpose of an original action for divorce by her."

Some few cases hold that when the husband abandons the wife she may sue him at his newly acquired domicile although retaining the matrimonial domicile as her residence, but they do not follow the logic of the law, by failing to recognize the distinction between the rule in ordinary cases and the exception to that rule as applied in divorce cases, and in some of them there is a confusion in the opinions between jurisdictional matters and questions relating to venue within the jurisdiction.

Counsel for plaintiff argues in his brief that this court has arrayed itself with the latter class of cases which uphold the right of a nonresident wife to sue her resident husband in the county where he lives, under the general doctrine that the residence of the wife follows that of her husband; in other words, he insists that this court is committed to the rule that a constructive residence of the wife is sufficient to meet the requirements of our statute, that a plaintiff, in order to maintain an action for divorce, must be "a continuous resident of this state for a year next before its institution" (section 2120, Statutes), and in support of this contention he cites the cases of Beckett v. Beckett, 17 B. Mon. 370; Hall v. Hall, 102 Ky. 297, 43 S.W. 429; Dunlop v. Dunlop, 3 Ky. Law Rep. 20; Boreing v. Boreing, 114 Ky. 522, 71 S.W. 431; Cummings v. Cummings, 133 Ky. 1, 117 S.W. 289; Miller v. Miller, 141 Ky. 681, 133 S.W. 588; and Peterson v. Peterson, 156 Ky. 202, 160 S.W. 952.

An analysis of the opinions in those cases will serve to point out the error of counsel. In the Beckett Case the cause of divorce, if it existed at all, arose outside of Kentucky. The two grounds relied on were five years' living separate and apart, and one year's abandonment of the wife (plaintiff) without her fault. The statute then in existence was the same as it is now (being a portion of section 2120) that the suit would not be entertained unless the party complaining had an actual residence here at the time of the doing of the act complained of; nor shall a divorce be granted for anything done out of this state, unless it was also a cause for divorce by the law of the country where the act was done. It was held that the living separate and apart for five years (there relied on) occurred at the place of the separation or abandonment, and that at that time plaintiff was not a...