King v. King

• Decision Date: 23 December 1908
• Parties: KING v. KING.
• Court: New Jersey Supreme Court

71 A. 687

74 N.J.E. 824

KING

v. KING.

Court of Errors and Appeals of New Jersey.

Dec. 23, 1908.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Action by Florence Maude King against Charles Sauford King for divorce. Judgment for defendant, and plaintiff appeals. Reversed.

Franklin W. Fort, for appellant.

REED, J. This is an ex parte proceeding to secure a divorce on the ground of deser tion. On the coming in of the report of the master advising a decree in favor of the petitioner, the Court of Chancery dismissed the petition. The ground of this dismissal was that there was not sufficient evidence that the petitioner had acquired a residence in this state for two years before her petition was filed; that her declaration that she intended to reside in this state was not accompanied with the selection of any place which she adopted as a residence animo manendi; that she went from place to place within the state and selected no one place as a residence until after the two years began to run.

The petition was filed on October 9, 1907. The petitioner came from New York state, where her husband had deserted her, to New Jersey about October 1, 1904. Site first went to Newark for a few weeks, then to Montclair until June, then to Europe until October, 1905, then to Lakewood for three or four months, then to Newark again, and afterward to Montclair. So she moved from place to place, remaining for different periods, until she established a residence at Asbury Park. The evidence convinces us that she left New York with no intention of returning. It clearly convinces us that she came to New Jersey with the intention of making this state her home. In respect to her migrations after coming here, she says: "I have gone from place to place in New Jersey for the purpose of seeing which place I would like best before establishing a permanent home. I found it too expensive at Lakewood and at Montclair, and I found Newark and Asbury Park cheaper."

The jurisdictional fact to be established in suits for divorce brought for desertion is that one of the parties shall have been a resident of this state during two years of the time for which the desertion shall have continued, and that such residence shall have continued until the filing of the bill or petition. P. L. 1902, p. 503. It is settled that the word "residence" employed in the statute means domicile, and that to confer jurisdiction upon the courts of this state it is essential that one of the parties shall have been domiciled in this state for the statutory period. McShane v. McShane, 45 N. J. Eq. 342, 19 Atl. 465. Domicile, of course, means a residence in New Jersey, coupled with an intention to remain in New Jersey. It is undenied that, with the exception of a three months' absence in Europe, the petitioner was physically present in this state for about three years before filing her petition. As already observed, the testimony leaves no doubt in our minds that she lived here with the intention of making her home in this state.

The view which led to the dismissal of the petition was obviously this: That while the petitioner was a resident here, and intended to remain within the state, she nevertheless had no fixed intention of permanently remaining in any one of the places in which she resided, until she finally removed to...