McCallum v. McCallum

• Decision Date: 08 July 1929
• Docket Number: 21554.
• Citation: 279 P. 88,153 Wash. 1
• Parties: McCALLUM v. McCALLUM.
• Court: Washington Supreme Court

279 P. 88

153 Wash. 1

McCALLUM v. McCALLUM.

No. 21554.

Supreme Court of Washington

July 8, 1929

Department 2.

Appeal from Superior Court, Yakima County; Nichoson, Judge.

Action by Elspeth McCallum against Archie C. McCallum. Decree for plaintiff, and defendant appeals. Affirmed.

W. H Abel, of Montesano, and J. C. Cheney, of Yakima, for appellant.

O. L Boose, of Sunnyside, for respondent.

MILLARD J.

This is an action by a wife for divorce from her husband upon the ground of cruelty. Defendant's motion for a change of venue from Yarkima county to Grays Harbor county, upon the ground that the plaintiff was a resident of the latter county, was denied. From the decree granting a divorce to the plaintiff and providing for alimony, attorney's fees division of the community property, and custody of the minor child, the defendant has appealed.

Respondent and appellant intermarried in Yakima county in 1920. From June, 1924, when they removed from Yakima county, until their separation on February 29, 1928, the parties herein continuously resided at Montesano, in Grays Harbor county. The only issue of the union is a daughter, who was born in June, 1921. No useful purpose would be served by reviewing in detail the evidence which is sufficient to show, if believed by the court, that the appellant frequently charged his wife with infidelity, repeatedly addressed her in a vulgar manner, and as a crowning indignity the night of February 28, 1928, accused her of unfaithfulness and ordered her from their home. On the morning of February 29, 1929, the respondent departed for the home of her parents at Mabton, in Yakima county. She was overtaken in the city of Yakima by the appellant, who accompanied her to Mabton, where appellant's parents also reside. Respondent and appellant agreed en route from Yakima to not reveal their marital difficulties to the parents that night. They proceeded to the home of the wife's parents, arriving there between 1 and 2 o'clock the morning of March 1st. Respondent and appellant occupied the same bed in that home the remainder of the night. About noon of March 1st the complaint for divorce was filed.

Appellant first complains that the court erred in denying the motion for a change of venue from Yakima county to Grays Harbor county.

'Any person who has been a resident of the state for one year may file his or her complaint for a divorce or decree of nullity of marriage, under oath, in the superior court of the county where he or she may reside, and like proceedings shall be had thereon as in civil cases.' Section 984, Rem. Comp. Stat.

While respondent alleged, and the court so found, that she had resided in the state the statutory period, she did not aver, and the court did not make a finding, that she resided in Yakima county at the time she instituted her action for divorce. Appellant insists that the provision of the statute that the complaint may be filed 'in the superior court of the county where he or she may reside' was intended to declare a fact essential to jurisdiction and was not merely intended to prescribe the venue, therefore the respondent not having alleged and proved, and the court not having found, that she was a resident of Yakima county at the time the divorce action was commenced, the trial court did not have jurisdiction of the cause.

We do not understand counsel to argue that respondent could not acquire a domicile in Yakima or any other county without reference to the domicile of her husband. Prior to her marriage the respondent had resided many years with her parents in Yakima county. It was the natural thing for her to do to return to the home of her parents when she could not longer endure the cruelty inflicted by the appellant. While the husband has the right to fix the matrimonial home, yet when he drives her from the home the wife may remove to another jurisdiction and acquire a new residence.

Appellant contends that the evidence will not support a finding that respondent was a legal resident of Yakima county. This argument is based upon the short period of time in which she was in the county prior to the commencing of the action. It is true she filed her suit within 12 hours following her return to Yakima county. It is manifest from the evidence that she intended to permanently reside in that county when she departed from Montesano February 29th. She arrived in Yakima county about midnight February 29th, and about noon of March 1st commenced the suit for divorce. The statute does not prescribe the period of time one must reside in the county to acquire a legal domicile for the purpose of commencing an action for divorce. The provision is that she may file her complaint in the county where 'she may reside.' At the hearing on the motion for a change of venue it clearly appeared that she resided in Yakima county and intended to permanently reside therein. Respondent complied with the statutory prerequisites.

'Where a wife separates from her husband and goes to live with a relative with the intention of making it her home, she may in that county apply for a divorce, and this is her domicile for the purposes of jurisdiction. The act and intention of making this her home decide the matter.' Section 1506, vol. 2, Schouler on Marriage and Divorce (6th Ed.). See McClintock v. McClintock, 147 Ky. 409, 144 S.W. 68, 39 L. R. A. (N. S.) 1127.

It should be remembered that in a divorce action the cause is triable de novo in this court ( Kane v. Kane, 35 Wash. 523, 77 P. 842), and the cause is here 'to be tried de novo upon the whole record, our statute providing that, upon appeal in cases of this character, this court shall be possessed of the whole case as fully as the lower court was * * *' ( Clark v. Clark, 92 Wash. 450, 159 P. 702). Amendments to pleadings in divorce actions are permissible to the same extent and under like restrictions as in other suits.

We have before us in the statement of facts the testimony of the parties and witnesses at the hearing on the motion for a change of venue. Of course it is conflicting. However, we are convinced by our examination of the evidence that the trial court's denial of the motion for a change of venue was correct. The trial judge was in a better position to determine the credibility of the parties and the witnesses, and his ruling based on their testimony is also entitled to consideration. The trial judge said: 'On the question of residence it seems to me that the affidavit of the defendant is substantially as shown by the testimony of the plaintiff on the stand, that she lived there (Montesano) on February 29th, and arrived at Mabton on the 1st of March, and on the same day commenced a suit for divorce. Now, then, if her intention was to make her residence in Yakima county, it seems to me she comes within the rule, because her testimony shows directly it was her intention to so establish her residence, and it also shows that she left there (Montesano) on his assertion that she get out and not come back or something to that effect. I think the plaintiff has established her residence in Yakima county.'

The allegation of residence within the state the required period of time was broad enough to permit of proof that respondent was a resident of Yakima county. That proof was made at the hearing on the motion for a change of venue. The allegation was hardly more than a defective averment of a material fact and upon a proper showing could be perfected by adding a phrase showing residence in the county of the court where the action was started. The showing made in the hearing on the motion for a change of venue was sufficient to justify the granting of a motion to amend the complaint had such motion been made. Following the hearing on the motion for a change of venue, the trial court proceeded as though the complaint was in fact amended. There is...