Mills v. Mills

• Decision Date: 03 April 1935
• Citation: 119 Conn. 612,179 A. 5
• Court: Connecticut Supreme Court
• Parties: MILLS v. MILLS et al.

179 A. 5

119 Conn. 612

MILLS v. MILLS et al.

Supreme Court of Errors of Connecticut.

April 3, 1935

Motion for Leave to Reargue Denied June 5, 1935.

Appeal from Superior Court, Fairfield County; Arthur F. Ells, Judge.

Action by Florence D. Mills against Winfield S. Mills and another for a declaratory judgment decreeing that a divorce obtained in Nevada by defendant named from plaintiff was colorable and did not dissolve the marriage relation between the parties named, and that they are still husband and wife, brought to the superior court and tried to the court. Judgment for defendants, and plaintiff appeals.

Error and case remanded, with direction.

Wilbur S. Wright, of Greenwich, for appellant.

Nehemiah Candee and John Keogh, Jr., both of South Norwalk, for appellee Madeline Hulse Mills.

MALTBIE, C.J., and HAINES, BANKS, and JENNINGS, JJ.

AVERY Judge.

The plaintiff married the defendant Winfield S. Mills in 1908 at Greenwich and lived with him there as his wife until October 1931. She brought the present action by writ dated March 22, 1933, against the defendants Winfield S. Mills and Madeline Hulse Mills, and asked for a declaratory judgment decreeing that the divorce obtained in Nevada by the defendant Winfield S. Mills from the plaintiff on January 9, 1932, he declared a colorable one, and that it did not dissolve the marriage relation between the plaintiff and Mills, and that they are still husband and wife. The case was tried to the court, and judgment entered that the plaintiff was not entitled to the relief prayed for.

The conclusion of the court was based upon four propositions: First, that the Nevada divorce obtained by the defendant Winfield S. Mills from the plaintiff was valid; second, that, if it was not valid, the plaintiff could not attack it by reason of collusion in obtaining it; third, that the plaintiff could not maintain the present action by reason of collusion between herself and her former husband in relation to the present action; and, fourth, laches. These conclusions are attacked by the appellant in the present appeal.

The appellant has asked for certain corrections and addition to the finding. So far as is material to the determination of the questions of law involved upon this appeal, the finding of the court with such corrections as the appellant is entitled to discloses the following pertinent facts: Florence Dean Davison and Winfield S. Mills married at Greenwich on October 29, 1908, and continued to reside there until October, 1931, where he left his home and went, with Madeline Hulse, to Reno, Nev. The latter was a nurse, employed in a hospital at White Plains, N.Y. She became acquainted with Mills in 1917. He called on her regularly thereafter from 1918 to 1931. During this time she was unaware of the fact that he was a married man. He became engaged to her in 1918, and in 1924 give her an engagement ring. In 1931 he agreed to drive with her to the West Coast and marry her, and settle wherever they could find work. He told her he had a sister in California, and they would go there and be married and settle when they found a place where they wanted to live. The plaintiff did not know of the intimacy between her husband and Miss Hulse. Early in October, 1931, he told his wife that he was going to take a trip and would be back in two or three weeks, and left Greenwich in his automobile, joined the defendant Madeline Hulse at East Moriches, Long Island, and proceeded West. Shortly before his departure, Mills had talked with his wife with reference to a divorce and made a property settlement with her, wherein he deeded to her a half interest in the house in which they were living, which had been inherited by him from his foster father. His wife knew, or at least suspected, that he was going away with the intention of securing a divorce.

He took with him two bags of clothing. When he left the East with Miss Hulse, they had a definite intention of never returning to Connecticut to live. Mills had no intention of making a permanent abode in any particular place. Miss Hulse did not know that Mills was married until they were well across the continent, when he told her that they were on their way to Reno in order that he might obtain a divorce. They reached Reno about October 20th; while there Mills lived, for a period of six weeks, in a furnished room at the Young Men's Christian Association, and procured his meals at different places. Thereafter, and until he left Reno, he lived in a rooming house on a side street. Before departing from the East, he had packed some of his belongings and left them with a friend. While at Reno, he did not send for any of his packed goods. Miss Hulse hired and lived in an apartment. Mills found a little painting to do and earned a small amount of money, but could not find any work of a substantial nature, although constantly seeking it. It was definitely agreed between them that, if he found work, they would be married in Reno as soon as the divorce was granted, and would settle there and live in her apartment. He was unable to find work, so they decided to go on West; and left on the afternoon of the day the divorce was granted, January 9, 1932. Mills, while stopping at the Young Men's Christian Association, bought no furniture or equipment for his room; he did not join it or any organization while there; he opened no credit accounts in any store; he did not apply to be made a voter; and he kept his wearing apparel in his two traveling bags. Neither he nor Miss Hulse ever returned to Nevada.

The trial court found that, at the time of procuring the divorce, Mills' intention was to remain in Nevada for an indefinite period and to live there indefinitely if he could find work, and that he had no intention of making a home elsewhere, and that Reno was his bona fide domicile; also that it was definitely agreed between Mills and Miss Hulse that, if he found work, they would be married in Reno as soon as the divorce was granted and would settle there in her apartment, but that he was unable to find work, and they decided to go on to the coast. These findings, except the last, are attacked in the assignments of error, and an examination of the evidence requires an interpretation of the finding as meaning no more than that, when Mills and Miss Hulse went to Reno, the time of their departure was not fixed. It was their intention to remain there until he had secured a divorce and thereafter to marry and settle in her apartment in the event that he could secure employment. Domicile, on the part of the plaintiff, was a necessary condition precedent to the jurisdiction of the Nevada court. To constitute domicile, the residence at the place chosen for the domicile must be actual, and to the fact of residence there must be added the intention of remaining permanently; and that place is the domicile of the person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with the present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home. Gildersleeve v. Gildersleeve, 88 Conn. 689, 692, 92 A. 684, Ann.Cas. 1916B, 920; Foss v. Foss, 105 Conn. 502, 508, 136 A. 98; State v. Cooke, 110 Conn. 348, 351, 148 A. 385.

When the parties left this state with the intention of never returning, their domicile in Connecticut was not thereby changed. The former domicile persists until a new one is acquired. McDonald v. Hartford Trust Co., 104 Conn. 169, 177, 132 A. 902; Shaw v. Shaw, 98 Mass. 158, 160. The residence of the parties in Nevada with the intention of remaining there permanently after Mills should secure a divorce if he could find work did not operate to establish for him a domicile in Nevada. This principle is well settled. Ross v. Ross, 103 Mass. 575, 576; Denver v. Sherret (C. C. A.) 88 F. 226, 227; 19 C.J 408; 9 R.C.L. 542. " For the acquisition of a domicile of choice, the intention to make a home must be an intention to make a home at the moment, not to make a home in the future. Comment A-In order to possess the requisite intention, one must be able to say not this is to be my home but this is now my home. Comment B-The intention to make a home must be an unqualified one, not conditional on the happening of a future event. But if there is an intention to make a home at present, the intention is not a qualified one because the person whose domicile...