Loud v. Loud
| Decision Date | 24 June 1880 |
| Citation | 129 Mass. 14 |
| Parties | Elizabeth O. Loud v. Ephraim A. Loud |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued March 28, 1879; March 29, 1879 [Syllabus Material] [Syllabus Material]
Suffolk. Libel for divorce for adultery on and since March 18, 1878. Answer, a decree of divorce, obtained by the libellee in the Supreme Judicial Court of the State of Maine, October 4, 1877, after service of process upon and appearance of this libellant; and a release from her of all rights of dower and alimony and other claims upon him. Hearing before Lord, J., who reported the case in substance as follows:
The parties were married on November 24, 1870, in Malden in this Commonwealth, and thereafter lived together as husband and wife in Boston until March 20, 1877, excepting that in the summer of 1872 they went to the libellee's father's house at Plymouth in the county of Penobscot and State of Maine, and stayed there a week or ten days, and in the summer of 1874 the libellant went there and stayed three or four months, during which time the libellee came there twice, and stayed two or three days each time, and always while there they lived together as husband and wife. They had three children, one of whom, a boy, is still living. On March 20, 1877, she left her husband's house in Boston, and filed a libel for divorce against him in this court, in which he appeared, and which, after hearing, was dismissed, without any order as to the custody of the surviving child.
The libellee soon afterwards took this child, with the libellant's consent, and went to his father's house in said Plymouth, where the libellee was born and lived until of age, and where his parents have ever since lived; and on August 14, 1877, filed against this libellant in the Supreme Judicial Court for the County of Penobscot and State of Maine, the libel which is copied in the margin. [*]
Notice thereof was ordered to be served on her personally, and was served accordingly on August 20, 1877. She employed counsel here, who by her direction employed counsel in Maine to appear for her in that suit, and who did appear for her, as shown by the record and docket, and was present at the hearing and took part in the proceedings as her counsel. That court afterwards entered the following decree:
After that libel had been served upon her, she, through the intervention of friends, consented to withdraw opposition thereto; and agreed to execute, upon receipt of the sum of $ 3000, and on October 14, 1877, with full knowledge of all the facts, upon the payment to her of that sum, (which she has since retained,) did execute, and acknowledge before a justice of the peace in this Commonwealth, the release which is copied in the margin, [**] and the same was recorded in the registry of deeds for this county. At the time of such negotiation and receipt, she supposed that that court had jurisdiction of the subject-matter of the libel and of the parties; and such belief was not caused by fraud of this libellee; and both parties supposed that that decree was valid everywhere. She testified, on cross-examination at the hearing of the present case, that she then desired that a decree of divorce should be obtained in the suit in Maine.
On March 18, 1878, this libellee married in the State of Maine another woman, a resident of that state, according to the law of that state, and this marriage was consummated by sexual intercourse, and a few days afterwards they came to Boston, and have since lived together here as husband and wife.
The libellee contended that he did not in 1877 go to the State of Maine to obtain the divorce, or with any purpose to obtain a divorce; and offered evidence tending to show that, when he left Boston and went to Plymouth, Maine, in May 1877, he was sick, and went to his father's house intending to remain there permanently, and that at the time of filing his libel he had acquired a domicil in Plymouth.
But the judge found, as a fact, that the libellee was, during the whole year 1877, domiciled in and a citizen of this Commonwealth, and did not acquire a domicil in or become a citizen of the State of Maine; and ruled, as matter of law, that this finding rendered wholly immaterial the question whether the libellee, when he went to Maine, had a purpose to obtain a divorce.
The judge also found, subject to the libellee's objection to their competency, the following facts: 1st. The parties to this suit were not married in the State of Maine. 2d. They had not cohabited together as man and wife in that state, within the meaning of the Rev. Sts. of Maine of 1871, c. 60, § 2. [***] [See Calef v. Calef, 54 Me. 365.] 3d. The husband had not resided in the State of Maine during the year preceding the filing of his libel, nor during any year after their marriage. 4th. The causes of divorce alleged in that libel did not accrue in that state.
It was agreed that the acts of the Legislature and the decisions of the Supreme Judicial Court of Maine might be referred to by either party; that if in the opinion of the full court the judge's construction of the meaning of cohabitation was not in accordance with the law of Maine, the finding upon that fact should be reversed; and that if, upon the facts and findings above stated, so far as competent, the libellant was entitled to a decree of divorce, such decree should be entered; otherwise, the libel should be dismissed.
Libel dismissed.
W. Gaston & C. E. Hubbard, for the libellant.
E. R. Hoar & J. B. Richardson, for the libellee.
This case differs from that of Sewall v. Sewall, 122 Mass. 156, in three respects: 1st. It has not been found that the husband went to the State of Maine to obtain a divorce, in violation of the Gen. Sts. c. 107, § 54. 2d. The wife had notice of his libel in Maine, and appeared by counsel in answer thereto. 3d. She executed to him a release, reciting the decree of divorce obtained by him from her in Maine, and, in consideration of a sum of money paid by him to her, releasing all right of dower or homestead or other interest in his lands, and discharging him from all claims for alimony, support or maintenance, and all other claims whatsoever.
Whether, no violation of our statutes being shown, and the wife having appeared in the suit in Maine, it would, if she had done nothing more, have been open to her to impeach the validity of the decree of divorce obtained there, by...
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