Mann v. Mann

• Decision Date: 05 May 1930
• Docket Number: 30121
• Citation: 129 So. 543,170 La. 958
• Court: Louisiana Supreme Court
• Parties: MANN v. MANN

129 So. 543

170 La. 958

MANN v. MANN

No. 30121

Supreme Court of Louisiana

May 5, 1930

Rehearing Denied July 2, 1930

Appeal from First Judicial District Court, Parish of Caddo; Robert Roberts, Judge.

Suit by E. Otto Mann against Mrs. Elizabeth Mann, for separation from bed and board on ground of abandonment. From a judgment of separation, defendant appeals.

Reversed, and suit dismissed.

Slade &amp Slade, of New York City, and Dickson & Denny, of Shreveport for appellant.

Wise, Randolph, Rendall & Freyer, of Shreveport, for appellee.

THOMPSON, J. BRUNOT, J., concurs in the decree.

OPINION

THOMPSON, J.

This is a suit by the husband for a separation from bed and board on the ground of abandonment.

The petition alleges that the plaintiff and defendant were married on December 19, 1908, at Greenwich, Conn., where they established a matrimonial domicile for some time. That plaintiff moved to New Orleans, where he resided from the year 1912 to 1914, during part of which time the defendant also resided in said city, and a matrimonial domicile was maintained in said city by said parties.

That plaintiff came to Shreveport shortly prior to February 1, 1925, where he has since continuously maintained his residence and domicile, "and accordingly established the matrimonial domicile in said city within the jurisdiction of this Honorable Court."

It is further alleged that the defendant has abandoned her said husband, has refused to return to the matrimonial domicile, although plaintiff has repeatedly offered, invited, and urged her to do so, and has repeatedly offered to maintain a suitable place for that purpose, all without avail.

It is further alleged that the defendant is now residing in the city of New York, and, by reason of the absence of said defendant from the state of Louisiana, it is necessary that an attorney be appointed to represent her, and that all proceedings herein be had contradictorily with said attorney so appointed.

The court appointed an attorney to represent the defendant on whom service was made, and also service of one notice directed to the defendant through the curator ad hoc, commanding the wife to return to the domicile of her husband in the city of Shreveport. This notice was dated May 2, 1927.

On November 22, 1927, an answer was filed which was signed by the curator and by attorneys employed by the defendant.

In the very beginning of this answer, and in answer to paragraph one of the petition, it is specially denied that a matrimonial domicile was ever established in Shreveport, and in the second paragraph of the answer it is alleged that the matrimonial domicile is in the city of New York, state of New York.

The denial that a matrimonial domicile was ever established in Shreveport is repeated in the fifth paragraph of the answer.

Further answering, it is alleged that the plaintiff has abandoned defendant and refused and neglected to provide a suitable domicile for her and has refused and neglected to send funds in order that she might come to him.

It is further alleged that should the court hold that she has abandoned her husband, she is willing and ready to return to him upon his furnishing her with a domicile and upon his sending her the necessary funds to do so.

While the petition does not allege, the proof shows, and it is not disputed, that the plaintiff, after residing in New Orleans from 1912 till 1914, returned to the city of New York, where the matrimonial domicile had been established, and where it was maintained until the plaintiff came to Shreveport some time in January, 1925.

It is further shown that the defendant remained in New York after her husband came to Louisiana, and has never lived with her husband in Louisiana since the matrimonial domicile was re-established in New York in 1914.

After a trial the district judge held that the courts of Louisiana had jurisdiction, on the theory that the domicile of the husband was the domicile of the wife, and that the refusal of the wife, without just cause, to join her husband as his wife in Shreveport, was an abandonment, and further that the want of jurisdiction of the court was waived by the filing of an answer. Accordingly a judgment of separation was rendered in favor of plaintiff.

In the light of the pleadings and the evidence introduced, we think it may be fairly considered as established that, if there was any abandonment on the part of the wife, abandonment occurred in the state of New York and not after the plaintiff established his residence in Louisiana. And we say this because the last matrimonial domicile was in New York and the defendant has never resided with her husband in Louisiana.

The first question to be considered, therefore, is whether under such circumstances the courts of Louisiana, having personal jurisdiction over one of the spouses (in this case the husband), can grant a separation from bed and board in favor of that spouse residing in this state.

In the early case of Muller v. Hilton, 13 La. Ann. 1, 71 Am. Dec. 504, it was held:

"The abandonment by one of the married persons of the other, which is made a ground of separation from bed and board, by Art. 141 of the Civil Code, to be a good cause of action, must have originated while the parties were domiciled in this State. Where the marriage took place in New York, and the wife always lived there, the husband, who afterwards established his residence in Louisiana, cannot maintain an action for separation against his wife by summoning her to his domicil in Louisiana."

In the case of Heath v. Heath, 42 La. Ann. 437, 7 So. 540, it was held that the abandonment by one of the married persons of the other, to be made the ground of separation from bed and board, must originate in this state, where there is a matrimonial domicile.

"Where the matrimonial domicile was in Massachusetts, and the abandonment occurred there, and the husband moved to Louisiana, where he acquired a residence, and the wife refused to come to this state, he cannot sue in the courts of Louisiana for a separation from bed and board.

"The wife never having been in Louisiana, the husband and wife could not in her absence acquire a matrimonial domicile here, and have a common dwelling, to which she could be summoned to return."

That case is directly applicable to the instant case. The defendant never having left the matrimonial domicile in New York, and since that domicile was re-established in 1914, never having been in Louisiana, her husband in her absence could not acquire a matrimonial domicile in this state to which he could summon his wife to return.

In Nicholas v. Maddox, 52 La. Ann. 1493, 27 So. 966, the parties were married in another state and the husband came to Louisiana to reside. His wife did not come to this state to live with him, though he had constantly urged her to do so.

It was contended by the husband that the wife's refusal to follow him to a new abode was an abandonment.

In answer the court said:

"It has always been held by the courts of this state that a husband cannot leave the matrimonial domicile in another state, and come here, and obtain a dissolution of the marriage, on grounds arising when he was not a resident of the state. The question has always been considered as jurisdictional, rendering it legally impossible to sever the marriage ties without proper notification and bringing the one sued within the court's jurisdiction."

The court further stated that it must be borne in mind that the asserted abandonment by the defendant of the matrimonial domicile was not from a domicile established by the husband with the wife, after the former came to reside here.

In the more recent case of Mathews v. Mathews, 157 La. 930, 103 So. 267, this court said:

"We think it is the uniform and consistent jurisprudence of this state that, where both spouses were nonresidents of Louisiana, and the marriage was not contracted in this state, and the cause of action arose prior to the acquisition of a Louisiana domicile by either, the courts of this state will not entertain suits, instituted by either spouse, for separation from bed and board or for divorce."

And again in Evans v. Evans, 166 La. 145, 116 So. 831, it was held that under Civil Code, article 142, the courts of Louisiana will not entertain a suit for divorce, or for separation from bed and board, for a cause which arose elsewhere and before the parties were domiciled in this state.

It is true the court on rehearing in Stevens v. Allen, 139 La. 658, 71 So. 936, L. R. A. 1916E, 1115, held that, with certain stated exceptions, a married...