Graham v. Graham
| Citation | 81 N.W. 44,9 N.D. 88 |
| Decision Date | 16 November 1899 |
| Court | United States State Supreme Court of North Dakota |
Appeal from District Court, Richland County; Lauder, J.
Suit by Anna Day Graham against Andrew Smith Graham. Judgment for defendant, and plaintiff appeals.
Affirmed.
Aaron J. Bessie and Lyman B. Everdell, for appellant.
McCumber & Bogart and Jos. G. Forbes, for respondent.
This action was brought to obtain a divorce from the bonds of matrimony upon the alleged ground that the defendant willfully neglected to provide for the plaintiff the common necessaries of life, although the defendant possessed the ability to do so. The trial court found as a fact "that the plaintiff was not at the time of the commencement of this action an actual and bona fide resident of the State of North Dakota." Upon this finding the trial court (without making further findings of fact) denied the divorce, and thereafter a judgment was entered dismissing the action, with costs. From such judgment the plaintiff has appealed, and now seeks a retrial of the entire case in this court.
We shall have occasion to consider only the question of residence. At the time the action was instituted the statute declared that "a divorce must not be granted unless the plaintiff has in good faith been a resident of the state ninety days next preceding the commencement of the action." Rev. Codes, § 2755. It has been held by this court and it is now a well-settled rule of statutory construction that "the word 'residence' in statutes giving jurisdiction is interpreted to mean the same as 'domicile.'" Smith v Smith, 7 N.D. 404, 75 N.W. 783. It follows that the question of fact which was passed upon by the trial court and which we are to try anew, is whether the plaintiff had for a period of ninety days prior to the commencement of this action, been a resident of this state, in the sense of having her domicile in this state for that length of time. The term "domicile" has been defined in different language by courts and law writers. A terse definition is as follows: "'Domicile' is the place where the person has fixed his habitation, without any present intention of removing therefrom." See 2 Bish. Mar., Div. & Sep. § 88, note I. This definition, while it has met with the approval of some courts, is in our judgment too narrow, unless the intention to remove be limited to the time of fixing the residence. The mere fact of an existing intention to remove from the place where one is domiciled cannot, we think, operate against the bona fides of residence. The existence of a mere purpose to go elsewhere to live is not, in our opinion, sufficient to defeat a legal residence in the place where a person is actually domiciled. In such case, until an actual removal occurs, the residence continues to be where the person has acquired a residence in good faith, with the intention of dwelling there indefinitely as a home; but the residence must be originally acquired by taking up one's abode in a place with a good-faith purpose to dwell therein as a home for an indefinite period. Domicile, when based on a claim of removal from a former place of residence, can be made out only by showing that there has been an actual removal, followed by residence in fact in the new place of abode, and coupled with a present intention to dwell in the new place indefinitely as a home. These views of the law of domicile are no longer open to debate in the courts of this country. See Cook v. Cook, 56 Wis. 195, 14 N.W. 33, 443; Albee v. Albee, 43 Ill.App. 370; Dunham v. Dunham (Ill. Sup.) 44 N.E. 841; I Nels. Div. & Sep. § 40. It is settled in this state, also, that the mere fact that the plaintiff in an action for divorce was led to take up his domicile in this state for the reason that liberal laws exist here upon the subject of divorce does not defeat the bona fides of the residence. See Smith v. Smith, supra. But, on the other hand, if one comes into this state for the sole purpose of acquiring a pretended residence,--all the time intending to remove from the state and live elsewhere as soon as the divorce is granted,--such pretended residence is not sufficient to give the courts of this state jurisdiction to grant a divorce. See Colburn v. Colburn (Mich.) 38 N.W. 607.
In the light of these rules of law, we have examined the record attentively,--which embraces all the evidence offered at the trial,--and have reached the conclusion that the trial court was correct in finding that the plaintiff was not a bona fide resident of this state when she commenced this action; and we are further constrained by the evidence to hold that plaintiff's sojourn in this state has been transient merely, and for the purpose of establishing a fictitious residence for divorce purposes only.
This view of the evidence is, however, strenuously combated by the appellant's counsel, who points to the direct and emphatic estimony of the plaintiff upon this point as follows: Plaintiff further testified that she had resided at Fargo, N.D., two months, and the rest of the time had lived at Wahpeton, N.D. Plaintiff's counsel, in referring to plaintiff's intentions with respect to her residence, say in their brief: "And on that point, (viz her intentions as to the future) there cannot be, in the nature of things, any evidence but her own direct testimony as to what her intentions are unless it be shown that she at some time had expressed her intention to leave her present domicile, or her lack of intention to...
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