Hampshire v. Hampshire
| Decision Date | 10 November 1950 |
| Docket Number | No. 7602,7602 |
| Citation | 223 P.2d 950,70 Idaho 522,21 A.L.R.2d 1159 |
| Parties | , 21 A.L.R.2d 1159 HAMPSHIRE v. HAMPSHIRE. |
| Court | Idaho Supreme Court |
Paul W. Hyatt, Lewiston, for appellant.
John W. Cramer, Lewiston, for respondent.
Plaintiff, respondent here, a soldier stationed at Walla Walla, Washington, a resident at the time of his enlistment of Medford, Oregon, brought this action for divorce from the appellant on the ground of five years continuous separation, without cohabitation. Sec. 32-610, I.C. The complaint was filed February 25, 1949, and alleged that the parties were married in December, 1925, in New York City; that the plaintiff was a resident of the State of Idaho, and had been for six weeks prior to the commencement of the action.
Appellant appeared, denied that the plaintiff was or ever had been a resident of this State, and in an affirmative defense alleged recrimination, Sec. 32-613, I.C., and that the respondent had been guilty of adultery.
On the issues framed, the cause was tried and findings of fact, conclusions of law and decree entered in favor of the respondent, granting him a decree of divorce, and ordering that he pay $25.00 per month for the support of a child the issue of the marriage. Appellant, defendant below, appealed from the decree.
Appellant assigns as error the finding of the trial court: 'That plaintiff is now, and for more than six weeks prior to the filing of the complaint herein has been, a resident of the State of Idaho'.
To establish residence in Idaho respondent, corroborated by a witness giving her name as Lucille Hampshire, testified that he was living in a residence in Prescott, Washington, during the months of December, 1948, January, February, March, April, May and June, 1949; that he maintained a home there in which he lived; that at the time of, and prior to enlistment he lived in Oregon; that he came to Idaho from Prescott, Washington, stayed in a hotel overnight; in a tourist cabin two nights; bought a car license in Idaho, and had mail addressed to him at Lewiston; attempted to buy or rent property in Lewiston, and if and when he was discharged from the military service, and secured a job with the engineers, he intended and expected to move to Idaho, and make his permanent residence there.
Such a showing is insufficient to prove an Idaho residence and the finding of the trial court that the respondent had been a resident of the state of Idaho for six weeks next preceding the commencement of the action is not supported by the evidence, and is in conflict therewith.
Sec. 32-701, I.C., provides: 'A divorce must not be granted unless the plaintiff has been a resident of the state for six full weeks next preceding the commencement of the action.'
To constitute a residence within the meaning of the divorce statute, there must be a habitation or abode in a particular place, for the required time, and an intention to remain there permanently or indefinitely. An actual residence as distinguished from a constructive ne is required. 17 Am.Jur. 280; 27 C.J.S., Divorce, § 76, page 644; Wood v. Wood, 140 Ark. 361, 215 S.W. 681.
It is essential before a person can lawfully file a complaint for divorce that he shall have been actually a bona fide resident of the State for six weeks preceding the commencement of the action. An intention to reside in Idaho at some future time is insufficient.
In the case before us, the undisputed facts and the admissions of the plaintiff establish that he never had a residence or domicile in the State; that for the period of time required, preceding the commencement of the action, he was in the military forces of the United States living at Prescott, Washington. He was either a resident of Oregon (his residence when he enlisted) or Washington.
The respondent not having been a resident of the State for six weeks prior to filing the complaint and not having been physically present in Idaho, with the exceptions above noted, was not legally qualified to prosecute an action for divorce. 27 C.J.S., Divorce, § 76, page 644; Wood v. Wood, 140 Ark. 361, 215 S.W. 681; Carlson v. Carlson, 198 Ark. 231, 128 S.W.2d 242; Murphy v. Murphy, 200 Ark. 458, 140 S.W.2d 416.
The appellant assigns as error the finding of the trial court that the respondent was not guilty of willful desertion and the finding that he was not guilty of adultery, and contends that $25.00 a month allowed by the court for the support of the child, the issue of the marriage, is insufficient and that under the showing made the appellant is entitled to a larger amount.
As the decree granting the respondent a divorce must be set aside, due to the failure of proof of his being a resident of the State for the necessary period, the...
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Olsen v. Olsen
...549 (1922); Humbird v. Humbird, 42 Idaho 29, 243 P. 827 (1926); Smiley v. Smiley, 46 Idaho 588, 269 P. 589 (1928); Hampshire v. Hampshire, 70 Idaho 522, 223 P.2d 950 (1950). 3 As recently as 1954 in Jollifee v. Jollifee, 76 Idaho 95, 101, 278 P.2d 200, 203, it was stated 'evidence as to fau......
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...The fact that she has an earning capacity (none is alleged here) does not relieve him of his duty. See Hamshire v. Hampshire, 1950, 70 Idaho 522, 223 P.2d 950, 951, 953, 21 A.L.R.2d 1159; Heslip v. Heslip, 1953, 74 Idaho 368, 262 P.2d 999, 1001. So, it would seem, Esther is suing James and ......
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...by a rule of thumb denying alimony to the wife in all cases where the divorce is granted to the husband. Cf. Hampshire v. Hampshire, 70 Idaho 522, 223 P.2d 950, 21 A.L.R.2d 1159. The principle involved was also recognized in Warner v. Warner, 76 Idaho 399, 283 P.2d 931, where we 'The fact t......
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