Morgan v. Morgan
| Decision Date | 30 July 1925 |
| Citation | 103 Conn. 189,130 A. 254 |
| Court | Connecticut Supreme Court |
| Parties | MORGAN v. MORGAN. |
Appeal from Superior Court, Hartford County; Newell Jennings, Judge.
Suit by Charles H. Morgan against Florence Morgan for divorce, in which defendant interposed cross-complaint. From a judgment dismissing cause for want of jurisdiction, plaintiff appeals and from provisional findings on the merits, defendant appeals. No error.
The plaintiff husband alleged that he had resided continuously in this State three years next before the date of the complaint, and claimed a divorce on the ground of desertion. The defendant, who is herself a resident of California, admitted the plaintiff's residence as alleged, and by cross-complaint also claimed a divorce on the ground of desertion. Each party claimed the custody of a female child, five years old at the date of the trial.
The court finds the facts as to plaintiff's residence as follows: For 26 years the plaintiff has been employed as a traveling salesman by a New York corporation located near Syracuse. In December, 1917, he married the defendant at Everett, Mass., where she then resided with her mother. At that time plaintiff covered the New England territory so-called, and confined his sales thereto. Plaintiff and defendant lived with plaintiff's mother until the summer of 1918, when they moved to plaintiff's summer cottage at Seneca Falls, N.Y. In the fall of 1918 they moved to an apartment leased by plaintiff in Syracuse, until the lease expired in October, 1919. Soon afterward the defendant returned with her baby to Everett, saying that she would no longer live with plaintiff. At the same time plaintiff announced that he intended to remove to Hartford in this state, and did come to Hartford in December, 1919, where he engaged a room in the home of friends, for which he has since paid rent, and has occupied it three or four times a year for two or three days at a time up to the date of this action in April, 1924. Plaintiff formerly voted at Seneca Falls, but has not voted there for the past five years. He has not registered or voted in this state until the fall of 1924, for the reason that extended business trips prevented him from doing so. He has formed no intention to remove elsewhere. During the last two years the plaintiff has been assigned to cover territory outside of New England, and this has prevented him from coming to Hartford as much as when he had the New England territory. During all this period plaintiff has retained the ownership of his Seneca Falls cottage where most of his personal effects are.
Until the spring of 1924 he maintained a room in Syracuse under conditions similar to those under which he has maintained the room in Hartford. He also owned and maintained an automobile used in his business in the territory near Syracuse, and in 1922 and 1923 registered the same in New York, and in doing so gave his residence as Syracuse.
On these facts the court concluded that the plaintiff had not continuously resided in Connecticut three years next before the date of the complaint in this action, and judgment was entered dismissing the complaint and cross-complaint for want of jurisdiction.
To provide for a possible reversal on the question of jurisdiction, the court has also made findings disposing of the merits of the controversy.
Plaintiff appeals from the judgment dismissing the cause for want of jurisdiction, and defendant appeals from the provisional findings on the merits.
Albert S. Bill, of Hartford, for appellant.
Roger W. Davis, of Hartford, for appellee.
BEACH J. (after stating the facts as above).
Chapter 227, Pub. Acts of 1923, provides that:
" If the plaintiff shall not have continuously resided in this State three years next before the date of the complaint, it shall be dismissed unless the cause of divorce shall have arisen subsequently to the removal into this state, or unless the defendant shall have continuously resided in this State three years next before the date of the complaint, and actual service shall have been made upon him."
The plaintiff's claim is, first, that the word " resided" as used in the statute is synonymous with " been domiciled" ; and second, that the facts found require the conclusion that the plaintiff has been continuously domiciled in this state three years next before the date of the complaint.
The term " residence," when found in statutes defining jurisdiction for divorce, may or may not be synonymous with " domicile." Much depends on the form and substantive effect of the statute, as well as on the context in which the word is used. When the requirement as to residence is a part of the grant of jurisdiction, so that the divorce court stands on the footing of a court of limited jurisdiction, the tendency has been to construe the term residence as meaning domicile, in order that all the conditions requisite to the exercise of jurisdiction over the subject-matter by a court of limited jurisdiction may be found in the grant itself.
Our superior court does not, however, derive its jurisdiction over the subject-matter from chapter 227 of 1923, but from section 5280, G. S., which confers a general jurisdiction to " grant divorces to any man or woman" for any cause authorized by law.
The general jurisdiction thus conferred is of ancient origin. It was first conferred on the court of assistants in 1667, and transferred to the superior court when that court was organized to take the place of the court of assistants in 1711. A requirement of three years' residence, " if the petitioner shall have removed from any other state or nation to this state," was first enacted in 1797. These two statutory provisions have come down to us as separate sections of our divorce laws, and it is quite unnecessary to import by construction jurisdictional terms into chapter 227 of 1923, which is not a grant of limited jurisdiction, but a limitation on a pre-existing general jurisdiction. When this necessity is out of the way, it seems plain that the requirement that the plaintiff shall have ...
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