Millar v. Millar
| Decision Date | 20 February 1962 |
| Docket Number | No. 3035,3035 |
| Citation | 369 P.2d 207 |
| Parties | Mary Catherine MILLAR, Appellant (Defendant and Cross-Plaintiff below), v. John W. MILLAR, Appellee (Plaintiff and Cross-Defendant below). |
| Court | Wyoming Supreme Court |
Lonabaugh & Lonabaugh, E. E. Lonabaugh, Sheridan, for appellant.
Henry A. Burgess, Sheridan, for appellee.
Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.
This is an appeal from a judgment of the District Court of Sheridan County, Wyoming, in which John W. Millar, a former British naval officer having emigrated to the United States and having settled in Sheridan, Wyoming, brought an action for divorce against Mary Catherine Millar, a resident of England. The parties will be named herein as in the court blow. The plaintiff, John W. Millar, filed his complaint in the District Court of Sheridan County, Wyoming, on May 13, 1960, and alleged that he and his wife were married on the island of Malta on September 10, 1948; that plaintiff has resided in Sheridan County, Wyoming, for more than sixty days immediately preceding the filing of the complaint; that plaintiff and defendant have a son, David Bruce Millar, born on May 26, 1952, who is now attending school in England and is supported by the plaintiff who pays the fees and school charges and in addition thereto the sum of 100 pounds per annum; that plaintiff and defendant lived apart for two consecutive years without cohabitation without fault on the part of the plaintiff in whole or material part; that the complaint is not founded or exhibited by fraud or collusion between the parties; and that there was no property accumulated by the parties during their marriage. Plaintiff accordingly prayed for a divorce.
On July 25, 1960, service of the complaint having been had on the defendant, the latter appeared in the case and answered, alleging that the complaint failed to state a claim upon which the court might grant relief. As a second defense the defendant denied all the allegations of the complaint except the marriage, the birth of the son, and that the complaint was not filed pursuant to collusion or fraud of the parties. As a third defense the defendant alleged that the plaintiff had been guilty of adultery and indignities prior to and subsequent to the separation of the parties. On the same date the defendant filed a cross-complaint alleging that by order of the High Court of Justice in England she was awarded the custody of the child and that she supported the child in school; that defendant and plaintiff had lived apart for two consecutive years without cohabitation which was not due to the fault of the defendant; that by adjudication of the English court she was awarded alimony in the sum of 450 pounds until the child would reach the age of eighteen years and at the rate of 400 pounds per annum thereafter; that this amount is insufficient and should be raised; and that defendant had no funds to prosecute the action. She accordingly asked for a decree of absolute divorce and for the care and custody and support of the child and for the support of herself. The plaintiff filed an answer to the cross-complaint substantially denying the allegations therein. By agreement of the parties some depositions were taken of witnesses who lived in England and these depositions have been duly returned and are a part of the record herein.
The parties herein subsequently alleged indignities as a ground for divorce but the trial court did not pass upon these allegations.
The case was tried before the court without a jury commencing on December 14, 1960. On December 27, 1960, the court entered its decree therein, finding that: Plaintiff had resided in Sheridan County for sixty days immediately preceding the filing of the complaint; he was a bona fide resident of the state, domiciled in Sheridan County, Wyoming; the court had jurisdiction of the case; plaintiff and defendant had lived apart for more than two consecutive years without cohabitation; the separation commenced on May 3, 1957, and continued to the date of the action herein and such separation was not induced nor justified by cause chargeable to the plaintiff; there was born to the parties on May 26, 1952, a son named David Bruce Millar; defendant should have the care and custody of the child except that the plaintiff should have the right of visitation and a right to control and custody of the child during four weeks of the school vacation; plaintiff should pay the defendant for the support and maintenance of the son in the sum of $280 per annum payable in equal monthly payments; plaintiff was required to keep in effect a Yorkshire Insurance Company policy and a North British and Mercantile Company policy in which the son should be designated as beneficiary; however, the Sun Life Insurance Company policy should be surrendered by the plaintiff forthwith and all benefits received therefrom should be applied by the plaintiff to current and future educational costs incurred and to be incurred in the education of the son; and plaintiff had been an officer in the British navy and received certain benefits upon his retirement from the service in March 1959. The court held that plaintiff should be required to pay to the defendant the sum of $5,867, which sum is approximately one-half of the amount acquired by the plaintiff during the years of cohabitation and is a fair, equitable and just division of the funds accumulated during the marriage of the parties. In that connection, the court provided that the payment:
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'* * * she should forthwith apply for a cesser and termination of all rights, claims or demands against the Plaintiff which she might have by reason of her marital relationship with the Plaintiff, and the Plaintiff should not pay nor be required to pay over unto the Defendant any amount other than is herein provided, and then only when such order of cesser is entered in the court of foreign jurisdiction in the action between these parties.'
The firm of Lonabaugh and Lonabaugh was awarded the sum of $750 as counsel fees, $500 of which has heretofore been paid, the balance of $250 to be paid within ten days of the entry of the decree. The decree further provides that the sum of $227 should be paid to Lonabaugh and Lonabaugh for the costs incurred by an English barrister and solicitor in taking the depositions herein, and the court further awarded the sum of $54 of the defendant for traveling expenses from England. From the decree so entered in this case the defendant has appealed to this court.
Counsel for defendant contend that under the evidence herein it has not been shown that the plaintiff, appellee therein, was a bona fide resident of Wyoming for the period of sixty days before applying for a divorce as required by § 20-48, W.S.1957, and that hence the court had no jurisdiction to grant the divorce. We agree with counsel that in order that the court may have jurisdiction to grant a divorce to the plaintiff his residence in this state must have been for the purpose of at least remaining here indefinitely and that his residence must be with the bona fide intention of making Wyoming his home. 27A C.J.S. Divorce § 76, p. 268. The evidence herein shows that the plaintiff was born in England and came to the United States in March 1959. He became an employee of the Sun Life Insurance Company in Washington, D. C., selling insurance of that company on commission. While in Washington he applied for citizenship of the United States and on March 8, 1960, he moved to Sheridan, Wyoming. While in Sheridan he obtained a license to sell insurance in Wyoming. He notified the immigration authorities of his whereabouts. He obtained an apartment in Sheridan and opened up his office in the Kutcher Building. He advertised his business by radio and by press and in fact sold some insurance. He sold his real estate (a flat) in England. He obtained a Wyoming driver's license and stated his intention to make his home in Sheridan. He was asked:
On cross-examination he was asked:
It is contended that the court erred in excluding some offered testimony. The plaintiff was asked whether or not it was true that while he was in Washington, D. C., he consulted an attorney relative to divorce laws of various states. The evidence was excluded as immaterial. He was also asked, 'But you have made a public statement, have you not, that the divorce laws of Wyoming coincided with your desire to see the west?' The objection to this question also was sustained. The thought of the learned counsel for defendant seems to be that when a person who seeks a divorce...
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