Hemphill v. Hemphill, 6337

• Decision Date: 16 April 1958
• Docket Number: No. 6337,6337
• Citation: 324 P.2d 225,84 Ariz. 95
• Parties: Jennie HEMPHILL, also known as June Harrell Hemphill, Appellant, v. L. J. HEMPHILL, Appellee.
• Court: Arizona Supreme Court

Page 225

324 P.2d 225

84 Ariz. 95

Jennie HEMPHILL, also known as June Harrell Hemphill, Appellant, v. L. J. HEMPHILL, Appellee.

No. 6337.

Supreme Court of Arizona.

April 16, 1958.

Lowell E. Rothschild and Hymen D. Goldberb, Tucson, for appellant.

Paul J. Cella and Cusick, Watkins & Frey, Tucson, for appellee.

ROBERT S. TULLAR, Superior Court Judge.

Jennie and Leonard J. Hemphill were married in Texas in 1949. They had met in Minnesota, and subsequently returned there. Later they moved to Colorado where the husband engaged in various husiness enterprises. In 1952, the wife left Colorado and has ever since made her home with or near a married daughter in California. The husband visited on one or two occasions, but never settled there. No children were born of this marriage.

In 1955, when the wife learned that the husband was in Pima County, Arizona, she filed suit against him in that county for separate maintenance, alleging cruelty, desertion, and failure to provide. In May, 1955, the husband filed his answer, generally denying the material allegations of the wife's complaint, and counterclaiming for divorce on grounds of cruelty and desertion. In her sworn reply to the counterclaim the wife admitted that the husband had been an actual, bona fide resident of Pima County, Arizona, for more than one year prior to the filing of the counterclaim, but she otherwise made a general denial to the allegations therein.

A contested trial before the court was had in February, 1956, and some time later the trial court entered judgment granting a divorce and ordering the husband to pay to the wife the sum of $2,700 at the rate of $150 per month or, in the alternative, $2,500 cash. Each party was ordered to pay his own attorneys' fees and costs.

The wife's motion for new trial was denied, she hired new counsel, and this appeal was duly perfected. She charges the trial court erred in granting a divorce because (1) neither party had the requisite residence; (2) the husband produced no evidence that the wife was guilty of cruelty or desertion; (3) there was inadequate corroboration of the husband's testimony; (4) there was inequitable distribution of property; and (5), the wife had proved her entitlement to a judgment of permanent separate maintenance.

Under our statute, A.R.S. Sec. 25-311, it is absolutely essential, before a person may lawfully file a complaint for divorce, that he shall have been an actual, bona fide resident of the state for one year, and of the county where the complaint is filed for six months. Carnahan v. Carnahan, 79 Ariz. 371, 290 P.2d 729, 55 A.L.R.2d 1258; Wynn v. Wynn, 39 Ariz. 580, 8 P.2d 1081. The Arizona courts will not, and may not, attend the divorce complaints of temporary visitors or transients. The invoking of the court's jurisdiction on a complaint for separate maintenance by a nonresident wife does not give the court jurisdiction to hear the husband's counterclaim for divorce, unless he himself had the requisite residence at the time he filed his counterclaim.

In Brandt v. Brandt, 76 Ariz. 154, at page 158, 261 P.2d 978, 980, this court said:

'By its decision in the second case of Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366, the Supreme Court of the United States held that a divorce decree granted without domicile of either spouse within the state is void * * *.'

In Chester v. Chester, 69 Ariz. 104, 210 P.2d 331, 333, it was said that 'actual bona fide residence in the State for one year and residence in the county for six months is the time prescribed by the legislature for establishing domicile' for divorce purposes.

The husband herein testified that he had lived on a ranch in Pima County for about two years. He stated he had been an actual, bona fide resident of that county for more than one year prior to the filing of the action. This testimony, admitted in her pleadings, was not disputed by the wife at the trial. The problem arises over the matter of corroboration.

To sustain a judgment of divorce, corroborating evidence is required as to all material allegations, including residence. In re Sweeney, 51 Ariz. 9, 73 P.2d 1349; Ungemach v. Ungemach, 61 Cal.App.2d 29, 142 P.2d 99; Bullard v. Bullard, 189 Cal. 502, 209 P. 361.

Our statute provides:

'Either party may be a witness, but no divorce shall be granted upon the testimony or admissions of a party unless they are corroborated by other evidence.' A.R.S. Sec. 25-317, Subd. B.

The reason for this statute,--which was substantially the rule at common law, and is similar to statutes in many jurisdictions,--is to prevent collusion between, or connivance by, the parties to secure a divorce upon simulated or false grounds. At common law, when there was no suspicion of collusion, the rule was relaxed and, under the statutes, in this situation, only slight corroboration is necessary. Lundy v. Lundy, 23 Ariz. 213, 202 P. 809; and see annotations, 15 A.L.R.2d 170, 65 A.L.R. 169.

In this case, the only witness called by the husband other than himself was one LaMar, a Colorado resident. He testified to an incident occurring in Colorado prior to the separation of the parties that might be deemed to be slightly corroborative of the husband's allegation of cruelty. On the subject of residence, however, he could only say he had heard that the husband had been in Tucson (Pima County), and in Arizona, for possibly a year or a year and a half.

Assuming,--without so holding,--that this hearsay, not having been objected to, is competent,...