Lucas v. Lucas

• Decision Date: 01 July 1947
• Parties: LUCAS v. LUCAS.
• Court: Wisconsin Supreme Court

251 Wis. 129

28 N.W.2d 337

LUCAS

v.LUCAS.

Supreme Court of Wisconsin.

July 1, 1947.

Appeal from an order of the Municipal Court of Kenosha County; Edward J. Ruetz, Judge.

Affirmed.

Action for divorce begun on September 14, 1945, by Irene Lucas against Wayne Lucas. Divorce granted October 5, 1945. On March 12, 1946, defendant moved to vacate the judgment of divorce. From an order entered December 30, 1946, denying that motion to vacate, defendant appeals.

Plaintiff was granted a divorce on grounds of cruel and inhuman treatment. Defendant moved to vacate the judgment of divorce on the ground that plaintiff was not a bona fide resident of Wisconsin, as required by sec. 247.06, Stats.:

‘Divorce; jurisdiction; publication; personal service; conditions. For purposes of divorce, either absolute or from bed and board, jurisdiction may be acquired by publication as provided in the statutes or by personal service upon the defendant within this state, under the following conditions:

‘(1) When, at the time the cause of action arose, either party was a bona fide resident of this state, and has continued so to be down to the time of the commencement of the action, except that no action for absolute divorce shall be commenced for any cause other than adultery or bigamy, unless one of the parties has been for the two years next preceding the commencement of the action a bona fide resident of this state.

‘(2) If, since the cause of action arose, either party, for at least two years next preceding the commencement of the action, has continued to be a bona fide resident of this state.’

Plaintiff had lived in Kenosha, Wisconsin prior to her marriage to defendant on September 13, 1941. After the marriage she lived for a few weeks with her husband in Rock Island, Illinois, where he was temporarily employed. On October 25, 1941, having been notified by his draft board, which was in Dubuque, Iowa, defendant was inducted into the United States Army. At that time plaintiff returned to her home in Kenosha. Defendant left articles of wearing apparel with plaintiff at the Kenosha address, and there is evidence that he used that as his mailing address. He returned from duty with the army about June 8, 1945. During the entire period when defendant was in service, plaintiff and their minor child, a son born July 21, 1942, lived in Kenosha. Plaintiff testified that upon defendant's return, plans were discussed for his getting work in Kenosha. However, about June 20, 1945, defendant procured work on a temporary construction job at Clinton, Iowa.

On four different occasions plaintiff made trips to Iowa, usually staying with defendant only a few days and on one occasion remaining for about three weeks. In his decision, the trial court said, ‘the best that can be said is that she was willing to make Iowa her home providing the defendant established a suitable home for her there. This he failed to do.’ Plaintiff returned to Kenosha from her last visit with the defendant on September 9, 1945. On September 14, the complaint initiating this action was served on the defendant in Iowa.

Cavanagh, Stephenson, Mittelstaed & Sheldon, of Kenosha, for appellant.

Vaudreuil & Vaudreuil, of Kenosha, for respondent.

FAIRCHILD, Justice.

Having failed to appear in the action, the appellant, several months after a divorce was granted to the respondent, moves to set the judgment aside on the ground that the respondent had not been a bona fide resident of Wisconsin for two years prior to the commencement of the action, as required by statute. The trial court had found that the respondent was and had been a bona fide resident of Wisconsin for more than two years immediately preceding the commencement of the action. However, appellant upon this motion contends that he has always been domiciled in Iowa and that because a wife's domicile follows that of her husband, the respondent was also domiciled in Iowa within the period fixed by statute.

It was the decision of the court upon the trial that appellant had not established a bona fide residence in Iowa, and there is ample testimony to support that view. Prior to the time of his marriage he had been a construction worker and musician, traveling from job to job. Although his parents lived in Iowa and he was registered there for Selective Service, the only time he could be said to have resided there after his marriage was when he was in Clinton on a temporary construction job after his return from service. During the years he was in service the Kenosha residence of his wife and child was his residence. Waushara County v. Calumet County, 238 Wis. 230, 298 N.W. 613. Even if he established his domicile by taking the job in Clinton, Iowa, by the facts of this case and the law of this state, his wife did not lose her Kenosha residence and was entitled to bring her action for divorce.

She herself did not intend to abandon her Wisconsin residence when she went to visit her husband in Iowa. She took their child with her on only one of the trips. She took only the things necessary for daily comfort. She intended to remain only if a home could be made there, and appellant made no effort to find a place for them to live. It is clear that during the period covered by those visits she still regarded Kenosha as her home. She had already consulted her attorneys about a divorce before she made the last trip to Iowa. This trip was made in the vain hope of saving the marriage. We have a situation, then, where, if it be that the appellant had established a domicile in Clinton, Iowa, each party was maintaining a separate domicile. Appellant's contention is that respondent as the wife did not have a right to regard her residence in Kenosha as her domicile for divorce purposes against the general rule that the domicile of the wife follows that of the husband. It is considered that she...