Gildersleeve v. Gildersleeve

Decision Date21 December 1914
Citation88 Conn. 689,92 A. 684
CourtConnecticut Supreme Court
PartiesGILDERSLEEVE v. GILDERSLEEVE.

Appeal from Superior Court, New Haven County; Marcus H. Holcomb, Judge.

Action for divorce by Sarah B. Gildersleeve against Edwin C. Gildersleeve. From a judgment dismissing the action, the plaintiff appeals. Affirmed.

Benjamin Slade, of New Haven, Spotswood D. Bowers, of Bridgeport, and William F. Alcorn, of New Haven, for appellant.

Jacob P. Goodhart and Samuel A. Persky, both of New Haven, for appellee.

PRENTICE, C. J. The plaintiff seeks a divorce from the defendant upon the ground of desertion. The parties were married in 1890 at New Haven in this state, where both then resided, and there they thereafter lived together as man and wife for a time. In his answer the defendant asserts that the matrimonial bond between them was dissolved in January, 1896, by a judgment of divorce entered upon his application by a court of competent jurisdiction in South Dakota, where he then resided. A judgment of divorce from such court is shown. If it was a valid judgment and entitled to recognition in this jurisdiction, the parties were not united in wedlock at the date of the institution of these proceedings. The trial court accorded this judgment full faith and credit, and, finding that by virtue of it the marriage tie theretofore existing between the parties had been dissolved, dismissed the complaint for that cause. As there can be no divorce where there is no existing marital relation, this action was correct, if the judgment of the South Dakota court is to be recognized here as terminating the marriage status. The field of our inquiry is thus limited to questions which concern either the validity of the South Dakota judgment or its recognition by the courts of this state.

First, as to the validity of the South Dakota judgment as such. The present plaintiff never resided in that state. If the court which entered the judgment in favor of her husband acquired jurisdiction entitling it to adjudicate in the premises, at least in a way to claim consideration outside of the borders of the state, it was by reason of the plaintiff having had his domicile at the time in South Dakota, and proper service upon or notice to the nonresident defendant having been made or given. Personal service was made upon her at her home in this state, and therein the order of the court and laws of South Dakota in that regard were fully complied with. 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. Ditson v. Ditson, 4 R. I. 87, 93; Minor on Conflict of Laws, p. 193, § 88. If it existed, jurisdiction to render a decree adjudicating upon the plaintiff's matrimonial status could be acquired, and in this case was acquired.

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. This the plaintiff's counsel frankly recognize. If, therefore, the finding remains unchanged, no question can be made as to the jurisdiction of the South Dakota court or the validity of its judgment as an adjudication of a competent tribunal.

The plaintiff's counsel in their draft finding asked the court to find that Mr. Gildersleeve was not a bona fide resident in South Dakota when he instituted his divorce proceedings and further, in substance, that he did not bring his action in good faith, but imposed upon the court by falsely asserting his residence in that state. They now ask that the finding be corrected by adding these statements thereto. The pivotal fact here involved is that of the good or bad faith of the then plaintiff's residence. This factor is one of vital consequence, for, on the one hand, if his residence in South Dakota was a colorable one only, the foundation of jurisdiction for all exterritorial purposes was gone, while on the other hand, if it was bona fide, jurisdiction might be acquired. The allegation of fraud in the assertion of residence adds nothing of practical importance. There could be no fraud as charged, unless the claimed residence was colorable only. If colorable, jurisdiction could not be acquired. Haddock v. Haddock, 201 U. S. 562, 610, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1; Ditson v. Ditson, 4 R. I. 87, 93. That the judgment is open to collateral attack, for the cause stated is well settled. Haddock v. Haddock, 201 U. S. 562, 608, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1; Thompson v. Whitman, 85 U. S. (18 Wall.) 457, 469, 21 L. Ed. 897.

The finding as it stands, and especially in view of the refusal of the court to find bad faith as requested, clearly imports that Mr. Gildersleeve's residence in South Dakota was a bona fide one, and it must be so interpreted. The defendant was a witness in the trial below. He told his story of his movements during his married life both before and after leaving this state and after the granting of the South Dakota decree, including his return to this state, and the reasons which actuated him in his sojourn after leaving this state, and in his return thereto. He testified that he went to Sioux City with the intention of remaining there, and left there for reasons of health. The credibility of his story was a matter for the trial judge to pass upon. If it was believed, the conclusion of the court that his residence in South Dakota was bona fide was an inevitable one. It was entitled to believe it, and we cannot properly disturb the conclusion reached.

It is suggested that the South Dakota residence could not have been bona fide for the reason that the unmistakable indications from surrounding circumstances are that he was moved to go to that state as one in which he could obtain a divorce more speedily and readily than in this state, and for the purpose of obtaining one. These considerations are indeed pertinent upon the question of the good-faith character of the change of abode, and we must assume that they were weighed by the trial court in connection with the other testimony bearing upon that point. But a motive and purpose such as indicated would not prevent the acquisition of a new domicile.

Whatever the motive or purpose actuating a change of domicile may be, the tests to be applied in determining whether one has in fact taken place do not include them. The sole considerations are: (1) An actual change of residence; and (2) the absence of an intention to remove elsewhere.

"But, if the animus really exists to remain there permanently, the fact that the motive of removal is to procure a divorce is immaterial." Minor on Conflict of Laws, p. 199, § 90.

There is no rule of law which prevents one from changing his domicile in order to facilitate his obtaining a divorce or to secure other advantages he may think that the laws of the new domicile may afford him. He is free to change at his pleasure, but the change must be a bona fide one to be effective. If actual and bona fide, the change will be accomplished. Fosdick v. Fosdick, 15 R. I. 130, 23 Atl. 140; Colbum v, Colburn, 70 Mich. 647, 649, 38 N. W. 607; Hegeman v. Pox, 31 Barb. (N. T.) 475, 479; Albee v. Albee, 141 Ill. 550, 563, 31 N. E. 153; Gregory v. Gregory, 76 Me. 535, 539.

"For the purposes of municipal law in the absence of statute, and always for the purposes of private international law, the period during which the party is domiciled is immaterial. He acquires a domicile at the moment when actual residence is accomplished by the animus manendi, and from that moment his status should be determined by the law of that country." Minor on Conflict of Laws, p. 197, § 89.

We have next to consider the question of recognition of the South Dakota judgment by the courts of this state.

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