Lafko v. Lafko

• Decision Date: 19 June 1969
• Docket Number: No. 72-68,72-68
• Parties: Anton M. LAFKO v. Irma K. LAFKO.
• Court: Vermont Supreme Court

Page 166

256 A.2d 166

127 Vt. 609

Anton M. LAFKO v. Irma K. LAFKO.

No. 72-68.

Supreme Court of Vermont.

June 19, 1969.

Waldo C. Holden, Bennington, for plaintiff.

Ehrich & Mollica, Bennington, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

HOLDEN, Chief Justice.

The parties to this divorce proceeding were married in Brooklyn, New York on November 5, 1955. They have four minor children whose custody is severely contested. The marriage has been a stormy one, interdicted by continuing discord and various separations.

While the Lafkos were residing in New Jersey in 1961, the libellant left his wife and family and took up residence in Londonderry, Vermont. Several months later Mrs. Lafko joined her husband who was engaged in various enterprises in the vicinity of Londonderry. She assisted her husband in the operation of a ski lodge until July 1967. At that time continuing discord finally disrupted the family and the libellee left Vermont and took the children with her.

In November of that year the husband, who we refer to as the libellant, commenced the present action, seeking a divorce for intolerable severity and separation for three years. The libel also requests custody of the children. Mrs. Lafko, referred to as the libellee, denied the charge and countered with a cross-libel. She petitioned the court to dismiss her husband's libel and grant her a divorce for his adultery, intolerable severity and non-support.

At the ensuing term of the Windham County Court, on May 24, 1969, the husband Anton withdrew his request for a hearing in the cause and formally objected to any hearing on the cross-libel. The basis of his objection is specified-'1. Libelee is not entitled to be heard on the Cross Bill until the libel is heard. 2. Libellee does not have the Vermont residence required by law. 3. To date, the parties have been unable to resolve by agreement essential questions.' This was followed on August 27 by a request for more complete specifications of the adultery charge.

It appears from the docket entry that the 'case was left with the Court on final adjournment.' The cause came on for hearing before the Windham County Court on September 3, 1963, a week prior to the opening of the next stated term of court. The county court heard the case. The libellee's cross petition for divorce was granted on the ground the libellant had treated her with intolerable severity. The care and custody of the children was also awarded to their mother. The original libel was dismissed.

The libellant appeals. He complains that he was not granted an opportunity to be heard on his objections to the court's hearing the case on the cross-libel.

It is apparent from counsel's statement on the record that the subject of his prior objections were considered in the prehearing conference before the court proceeded to the merits.

MR. HOLDEN: Probably to summarize our conference in Chambers we call attention of the Court to our objection filed this spring. Also it is our position that sufficient specifications have not been furnished on the adultery charges. We do defer, subject to the ruling of this Court, and permit the cross libellant to go forward if the Court so rules. We are not going forward at this time on our original libel.

COURT: The Court understands you are here only in defense of the cross libel.

MR. HOLDEN: And on the custody matter to the extent it is raised.

To properly preserve a question for appellate review, the objector, or moving party, as the case may be, should affirmatively demonstrate in the record that his position and the action which he desired the trier to take was made known to the court. 12 V.S.A. § 2381; City of Barre v. Brown, 121 Vt. 469, 471, 160 A.2d 885. In this instance, while the record fails to disclose any express ruling on the libellant's objection, the fact that it went on to hear the merits of the cross-libel was an implied ruling that the libellant's objections were denied. This is sufficient to support review of the questions raised in the libellant's objections to the hearing. Vermont Shade Roller Co. v. Burlington Traction Co., 103 Vt. 293, 308, 153 A. 563; Davis v. Union Meeting House Society, 92 Vt. 402, 405, 105 A. 29; 5 Am.Jur.2d, Appeal & Error & 557; 4 C.J.S. Appeal and Error §§ 320-321.

The case had not been heard at the time of final adjournment, although apparently the case had been set for hearing at the March Term of court. In any event, it appears from the docket entries that the present case was left 'with the court' at final adjournment. The appellant contends the court was without jurisdiction to hear the matter after adjournment. Although the question was not presented to the lower court, we will examine it since it is stated on jurisdictional grounds.

Jurisdiction, to be complete, must be of the person, the process and the subject matter. Perry v. Morse, 57 Vt. 509, 513. The power of the court, as to person and process, may be conferred by waiver and consent. But the power of the court to deal with the subject matter of the controversy can be generated only by force of law. It is unaffected by agreement or conduct of the parties. Aguirre v. Aja, 113 Vt. 123, 125, 30 A.2d 88.

The Legislature has not restricted the general jurisdiction of county courts to particular terms of courts. The power conferred on these tribunals over causes within the subject matter of their jurisdiction is continuous. State v. Alfred, 87 Vt. 157, 160, 88 A. 534.

In earlier days, the time of 'the rising of the court' had special procedural significance, for the issuance of executions and the taking of appeals were measured from that event. And a case left 'with the court' before No. 35 of the Acts of 1898 took effect did not extend the time imposed by statute. See Mead v. Town of Moretown, 72 Vt. 323, 324, 47 A. 1072; Yatter v. Miller, 61 Vt. 147, 152, 17 A. 850. The hardship of these procedural roadblocks was alleviated by the 1898 enactment. 4 V.S.A. § 118.

This statute permitted the court to withhold any cause from the effect of adjournment, without consent of the parties, to enable full and final disposition of the case. Morgan v. Gould, 96 Vt. 275, 278, 119 A. 517. Under this statute the entry 'with the court' gave the court power to hear and determine the cause during the vacation before the opening of the next stated term. Leonard v. Willcox, (1928), 101 Vt. 195, 207, 142 A. 762. However, this limitation was enlarged the following year by the enactment of 4 V.S.A. § 119 (1929, No. 40 § 2) to provide:

Whenever the presiding judge or the judges of a county court have begun the hearing of a cause on its merits at a stated term thereof or in vacation after a stated term, he or they may finish such hearing and render judgment therein at any time before the opening of the second stated term thereafter. The expiration of his term of office shall not disqualify any judge so to act.

In the instant case, hearing on the merits was begun by the judges of the Windham County Court in the vacation of the March Term 1967. Findings and the decree were filed during the next stated term. Since full compliance with the terms of the statute is apparent, the claim that the lower court's jurisdiction had expired is without merit. Appliance Acceptance Co. v. Stevens, 121 Vt. 484, 487, 160 A.2d 888.

The findings state that Mrs. Lafko is presently residing with her parents in New Jersey. The appellant urges that her residence outside Vermont deprived the court of jurisdiction to hear and determine the cause on her cross-libel.

The requirements of residence are set forth in 15 V.S.A. § 592:

A libel for divorce or annulment of marriage may be brought by a person who has resided within the state for a period of six months or more, but a divorce shall not be decreed for any cause, unless the libelant has resided in the state one year next preceding the date of final hearing. Temporary absence from the state because of illness, employment without the state, service as a member of the armed forces of the United States, or other legitimate and bona fide cause, shall not affect the six months' period or the one year period specified in the preceding sentence, provided the person has otherwise retained his residence in this state.

Counsel for the libellant cross-examined the libellee on the question of her change of residence:

Q. You wanted to stay in New Jersey?

A. I wanted a separation until I could see if he would get a job and I wouldn't have to work.

Q. On that occasion you preferred to stay in New Jersey?

A. Yes.

Q. You stayed in New Jersey?

A. Temporarily.

Q. What do you mean?

A. I have nowhere else to go.

The true rule of law in this jurisdiction was expressed by Chief Justice Powers in Miller v. Miller, 88 Vt. 134, 136, 92 A. 9, 10, L.R.A.1915D, 852. The question in that appeal concerned the absent wife's right to institute the original libel.

'The term 'reside' is used in different senses, and if this statute makes actual living here for the time specified a prerequisite, the libellant fails to make a case; for she was living in Chicago and not in Vermont during that time. But, having in mind the evil which the statute was designed to guard against,-fraudulent divorces,-we do not think that, in a case like this, it is necessary for the libellant to actually live in this state during the year preceding the filing of her libel. It is sufficient if her legal domicile is here. This is generally so held, and sufficiently appears from Turner v. Turner, 87 Vt. 65, 88 A. 3, 47 L.R.A.,N.S., 505. And her legal domicile was here, because her husband's was here; and the general rule is that the husband's domicile is that of the wife. True it is that when compelled by his misconduct to leave him, she may acquire a separate residence. Patch v. Patch, 86 Vt. 225, 84 A. 815. But she is not obliged to do so. He cannot by his bad conduct compel her to acquire a new domicile...