Lucia v. Lucia

• Decision Date: 11 November 1946
• Docket Number: 36202.
• Citation: 27 So.2d 774,200 Miss. 520
• Court: Mississippi Supreme Court
• Parties: LUCIA v. LUCIA.

27 So.2d 774

200 Miss. 520

LUCIA v. LUCIA.

No. 36202.

Supreme Court of Mississippi

November 11, 1946

J. E. Stockstill, of Picayune, for appellant.

No appearance for appellee.

L. A SMITH, Sr., Justice.

The appellant married the appellee on March 6, 1922, in Orleans Parish, Louisiana, where they were born and reared and where they formerly had a rented home. Appellant during most of the time, in the series of events concerned here, was a business agent of a labor union, the office of which was in New Orleans. He was not so employed when the case was tried. He claims to have established his domicile in this state in a room of a boarding house, which, during his absences, the landlord rented to others with his consent. Appellee has been an inmate of the Louisiana Asylum for the Insane since 1939. Appellant has not visited her, communicated with her, or sent her anything since her confinement. The issue here is whether or not, and when, he had established a domicile in Mississippi, as required by our divorce statute sufficient to confer jurisdiction on the Chancery Court of Pearl River County, to hear his petition for divorce. He testified to several different dates of its establishment in Mississippi. He also gave conflicting reasons for establishing such a domicile in Mississippi. There were other discrepancies and inconsistencies in his testimony with reference to the establishment of his residence or domicile in Mississippi. Under our statute, Section 2736, subsection (a), before he was qualified to have a chancery court hear his application for a divorce, he must have proven himself to have been an actual bona fide resident within this State for one year next preceding his commencement of the suit.

He registered in Mississippi for the first time in 1943, paid poll taxes for 1943 and 1945, overlooking, he said, the 1944 payment. There is some confusion also as to when he established his domicile in Pearl River County, which was in January 1944 apparently from one portion of his testimony but a month or two later, according to another portion of his testimony.

He filed this suit for divorce on March 23, 1945, claiming to be a resident citizen of Pearl River County, and alleged that his wife was incurably insane. Section 2735, Code 1942. No answer was filed by or on behalf of his wife, and when the case came on to be heard, the learned chancery judge manifestly suspected the good faith of complainant as to his domicile in Mississippi, where incurable insanity is a ground for divorce, instead of Louisiana where divorce is not granted for insanity. Sections 138, 139, Dart's Louisiana Civil Code, 2nd Ed., Vol. 1. The Court asked appellant this question: 'You say you never decided to make this your legal residence until you discovered by talking to the drug store man that there was a ground for divorce in Mississippi on insanity?' Answer: 'I had been living here at that time for three or four months already.' And, also this question by the court: 'And if you were to get a divorce, you would leave?' Answer: 'I don't intend to leave. I am going to stay here.' The conversation at the drug store, to which the court referred, was on a Sunday afternoon in Picayune some time about June 1944, while he was rooming at the Ford rooming house in Picayune. In the course of this allegedly casual conversation, appellant then learned for the first time, from a voluntary and unsolicited statement of the druggist, that divorce could be obtained in Mississippi from his wife because of her incurable insanity, he said. He then got in touch with an attorney who confirmed this information, resulting in the filing of the suit under consideration. Appellant was corroborated in some respects of his testimony relative to the establishment of a Mississippi domicile, by the proprietor of the rooming house, Mr. Ford, and also by a roomer therein, and by an old friend residing in Slidell, Louisiana. This evidence would have been conclusive upon the chancery court, since it was uncontradicted directly by any witnesses; except for the discrepancies and inconsistencies within the evidence itself; and the troubling absence of the testimony of the druggist, supra; and the lack of intelligent consistency in the appellant's own testimony.

The matter of domicile is governed in this State by such cases as May v. May, 158 Miss. 68, 130 So. 52; Smith v Smith, 194 Mass. 431, 12 So.2d 428; Hairston v. Hairston, 27 Miss. 704, 61 Am.Dec. 530; Smith v. Deere, 195 Miss. 502, 16 So.2d 33. From these cases, it appears that to constitute complainant...