Jackson v. Jackson
| Decision Date | 19 April 1949 |
| Docket Number | 33555. |
| Citation | 205 P.2d 297,201 Okla. 292,7 A.L.R.2d 1410,1949 OK 73 |
| Parties | JACKSON v. JACKSON. |
| Court | Oklahoma Supreme Court |
Appeal from District Court, Texas County; F. Hiner Dale, Judge.
Action for divorce by Sam S. Jackson against Elizabeth M. Jackson. Judgment for plaintiff, and defendant appeals.
Affirmed.
Syllabus by the Court.
1. In an action for a divorce where the evidence shows that plaintiff was an actual resident in good faith of the state for more than one year next preceding the filing of the petition and was an actual resident in good faith of the county at the time the petition was filed and summons issued the fact that plaintiff thereafter and before trial leaves the state and establishes a permanent residence in another state will not deprive the court of jurisdiction to hear the case and enter a judgment therein.
2. The granting or refusing of a continuance on account of absence of counsel is a matter of discretion with the trial court and, unless it appears that such discretion was abused to the prejudice of the substantial rights of a litigant, the action of the court will not be disturbed upon appeal.
3. There may be a divorce on the ground of 'extreme cruelty' in the absence of any great physical violence when there is conduct or treatment which destroys the concord, harmony, happiness, and affection of the parties and the legitimate aims, objects, purposes and ends of matrimony.
4. In an action for divorce based on extreme cruelty, evidence as to conduct and statements made by defendant occurring subsequent to the filing of the petition and indicating cruel treatment, while inadmissible in evidence for the purpose of establishing grounds for divorce, such evidence may be admitted and considered by the court in so far as it lends weight to and is corroborative of testimony of plaintiff as to prior acts of ill treatment.
5. A judgment of the trial court in a divorce action granting a divorce will not be reversed by this court on appeal because of insufficiency of evidence unless it can be said that the judgment rendered is clearly against the weight thereof.
Fred King, of Guymon, and Jesse L. Pullen, of Oklahoma City, for plaintiff in error.
Rizley Tyron & Sweet and LaMar & Bailey, all of Guymon, for defendant in error.
O'NEAL, Justice.
This is an appeal by Elizabeth M. Jackson from a judgment of the District Court of Texas County granting her husband, Sam S. Jackson, a divorce and settling property rights. Plaintiff's action for divorce is predicated on the ground of extreme cruelty.
Subsequent to the filing of the appeal the parties by stipulation settled their property rights, and the appeal in so far as such issue is concerned has been dismissed, leaving for our consideration only the question of the correctness of the judgment granting the divorce.
Defendant raises a jurisdictional question. She asserts that plaintiff was a resident of the State of Texas at the time the case was tried and the court was therefore without jurisdiction to hear the case and render a judgment and should have dismissed the case.
The record discloses that plaintiff had been a resident of the State of Oklahoma for more than forty years next preceding the filing of his petition and was at that time and at the time the summons was issued a resident in good faith of Texas County, Oklahoma, and then resided in Texhoma, Oklahoma. Texhoma is located on the boundary line between the States of Oklahoma and Texas. Main Street is the dividing line; Texhoma, Oklahoma lies on the north side of the street and Texhoma, Texas on the south side. Some time after the petition was filed and summons was issued and before trial plaintiff obtained a room and living quarters in Texhoma, Texas and was occupying such quarters at the time the case was tried. Plaintiff asserts the evidence shows he was only temporarily residing in the State of Texas; that he had not abandoned his residence in Oklahoma but that he intended to return to Oklahoma in the near future and make Texhoma, Oklahoma, his future residence and home, while defendant contends the evidence showed that he had established a permanent residence in the State of Texas.
Since the evidence shows that plaintiff was a resident of Oklahoma for more than one year next preceding the filing of the petition and was a resident in good faith of Texas County at the time the petition was filed and summons issued, we deem it immaterial as to whether plaintiff at the time of trial had established a permanent residence in the State of Texas or whether such residence was merely temporary.
Under the record the jurisdictional requirements as provided by 12 O.S.1941§ 1272 existed when the petition was filed and summons issued. Jurisdiction then attached and the court was not divested of its jurisdiction, although plaintiff thereafter and before trial left the state and did in fact establish a permanent residence in the State of Texas. In 27 C.J.S., Divorce,§ 74, it is said:
* * *'
In the case of Polk v. Polk, 158 Wash. 242, 290 P. 861, 864, the Supreme Court of Washington said:
'* * * The facts clearly disclose that appellant was a resident of this state for one year immediately preceding the date she instituted her action for divorce, therefore a change of residence by her subsequent to the commencement of the action did not deprive the court of jurisdiction.
"A change of residence by plaintiff after the commencement of a suit and before its trial does not deprive the court of jurisdiction."
See also Bason v. Bason, Tex.Civ.App., 260 S.W. 687, and Russell v. Russell, Tex.Civ.App., 199 S.W.2d 858.
...
To continue reading
Request your trial