Langewald v. Langewald
| Decision Date | 06 January 1920 |
| Citation | 234 Mass. 269,125 N.E. 566 |
| Parties | LANGEWALD v. LANGEWALD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Hampden County; John F. Brown, Judge.
Libel for divorce by Maria S. Langewald against Alfred A. Langewald, resulting in findings for plaintiff. On report to the Supreme Judicial Court. Libel dismissed.William A. Morse, of Boston, and Thomas W. Kenefick, of Palmer, for libelant.
Robert A. Allyn, of Holyoke, for libelee.
This is a libel for divorce. The libelant and the libelee were married in Providence in the state of Rhode Island in 1893. About six months later they moved to Warren in this commonwealth, where they lived together until 1900 and where a son was born to them. In 1900 the libelee left Massachusetts and within a few months was in the state of Wyoming. The libelant continued to reside in this commonwealth. There was considerable correspondence between the parties and their respective attorneys. Proceedings for divorce were instituted in Wyoming in 1900 by the husband, alleging extreme cruelty. The wife, although remaining in Massachusetts, appeared by attorney voluntarily in the Wyoming court, where was entered a decree for divorce, awarding the custody of the child to the wife and ordering the payment to her by the husband of $3,500 for the care and support of the child. Receipt by the wife acknowledging payment of this sum was filed in the Wyoming court. It is manifest that the wife submitted to the jurisdiction of the Wyoming court pursuant to an agreement with the husband, whereby she consented to the divorce and he paid her the money. This was no adversary proceeding, such as would warrant a finding of a genuine contest before a court having jurisdiction. She was never appointed guardian of the child and used the money as her own. She brought up the child, who is now of age. The money is all gone, having been spent in some part if not in whole in her own business. It does not appear when the husband returned from Wyoming to this commonwealth, but it is found that he worked at Monson ‘for a long time prior to 1914.’ There is in the record nothing to indicate that he ever lost his domicile in this commonwealth. The wife has tried to obtain a divorce in this commonwealth for desertion and to secure separate support, but without success. The husband married one Eva E. Bigelow in 1914 and is now living in this commonwealth. The present libel is brought by the wife on the ground of adultery because of cohabitation under this marriage.
The trial judge found ‘as a fact that the libelee went to Wyoming for the purpose of obtaining a divorce.’ Although there is no express finding upon the point, the inference from the other facts found is irresistible that the cause for which the husband went to Wyoming to obtain the divorce, and for which the divorce was granted in Wyoming, occurred while the parties resided here. They never lived together in Wyoming and all but the first six months of their seven years of cohabitation was spent in Massachusetts.
It is provided by R. L. c. 152, § 35, that--
‘A divorce decreed in another state or country according to the laws thereof by a court having jurisdiction of the cause and of both the parties, shall be valid and effectual in this commonwealth; but if an inhabitant of this commonwealth goes into another state or country to obtain a divorce for a cause which occurred here while the parties resided here, or for a cause which would not authorize a divorce by the laws of this commonwealth, a divorce so obtained shall be of no force or effect in this commonwealth.’
This statute violates no provision of the federal Constitution. Andrews v. Andrews, 188 U. S. 34, 23 Sup. Ct. 237, 47 L. Ed. 366. There is nothing in the record to show what is the law of Wyoming touching the subject of divorce. It does not appear whether jurisdiction for divorce in courts of that state rests upon ‘simple bodily presence within its borders for a certain number of days,’ or upon domicile according to the consensus of opinion of English speaking courts. Andrews v. Andrews, 176 Mass. 92, 93, 57 N. E. 333. No presumption can be indulged in favor of the former...
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