Parker v. Parker
| Decision Date | 14 February 1968 |
| Docket Number | No. 120-E,120-E |
| Court | Rhode Island Supreme Court |
| Parties | Gail L. PARKER v. Lucille Q. PARKER. x. &c. |
This is a petition for divorce from bed and board on the ground of gross misbehavior. The respondent is a resident of Charleston, West Virginia. This cause is before us on her appeal 1 from certain rulings made by the family court in granting the instant petition.
It is respondent's contention that the family court erred (1) in ruling that the was petitioner's common-law wife and (2) in holding that petitioner was a domiciled inhabitant of Rhode Island. Because we believe that petitioner failed to prove that he had a domicile in this state, we deem it unnecessary to determine if the trial justice's finding that a common-law marriage existed between these parties is correct.
The petitioner, Gail L. Parker, has alleged that respondent is his common-law wife. He says her name is Lucille Q. Parker. The respondent denies she is petitioner's spouse. Her name, she claims, is Lucille Q. Kratz. As we chronicle the cross-country travels of the parties, we shall for purposes of clarity and ease of understanding hereafter refer to petitioner as Gail and respondent as Lucille.
Gail is a jockey and during the past 18 years he has traveled extensively throughout this country riding horses at the various recetracks located in many different states. During 1950, while working at a track in California, Gail met Lucille, and on September 7 of that year they were married with appropriate ceremony. Lucille at that time was 15 years of age. Twin daughters were born of this union. Approximately two and one-half years later, Gail filed a petition in the superior court for Maricopa County, Arizona, asking that his marriage to Lucille be annulled. The basis for this action was the failure of Lucille's parents to give their consent to the marriage, Lucille being under the legal age of consent in September 1950. On February 11, 1953, the Arizona court entered a decree which annulled the marriage, awarded custody of the twins to Lucille, directed Gail to pay $125 a month for the children's support and, in the event of Lucille's remarriage, this monthly payment was to be reduced to $50.
A few months later, the parties, while still in Arizona, resumed living together. Gail testified in the family court that at this time he and Lucille agreed to become husband and wife and forget the annulment proceedings which he described as a mistake. Although Lucille admitted that she and Gail returned to each other and lived as husband and wife for some 12 years thereafter, she contended that this arrangement was on a trial basis, and if it worked out they would then participate in a marriage ceremony. It was then her understanding that parties were not married until they exchanged connubinal vows before some appropriate official.
After leaving Arizona, Gail lived in four other states working at different racetracks. The duration of his stay in each of these states was determined by the length of the meet at each track where he rode. When Gail first came to Rhode Island in 1954 it was to ride at Rhode Island racetracks, and for that purpose he returned here on at least five or six other occasions. Each of his visits to Rhode Island lasted for varying periods of time depending on the racing schedule in this state. Gail testified that in 1954, while he and Lucille were here, they lived in a trailer near a racetrack and at that time, after discussing the nature of their relationship, agreed that they were husband and wife. It is Gail's position that Lucille's and his relationship at that moment ripened into a common-law marriage. Lucille, on the other hand, maintained throughout the proceedings in the family court that she and Gail never became common-law spouses since she at no time had the requisite intent to be married.
In 1961 a son, Gail L. Parker, Jr., was born of the parties in Jefferson County, West Virginia. Although the children attended school in Rhode Island in the spring of 1962 for a period slightly in excess of 30 days, they also attended schools in various sections of the country. The record shows that in the last years of the parties' association, Lucille and the children remained in West Virginia while Gail was away working beyond the borders of that state.
Gail testified that in 1964, while in Rhode Island, he sustained a foot injury which forced a curtailment of his racing engagements and he returned 'home' to West Virginia where he remained with Lucille and the children. Frustration and disagreements then began to develop. On September 7, 1964, Gail appeared before a justice of the peace in West Virginia on a complaint filed by Lucille wherein she alleged that he had threatened her with bodily harm. On January 15, 1965, Gail was again before the court to answer to the charge that he had assaulted Lucille. Each time he posted a bond to keep the peace and was released. At one point in his testimony, Gail admitted that he told the West Virginia court that Lucille was not his wife.
In early 1965, Gail arrived in Rhode Island and rented a one-bedroom apartment in Pawtucket. Lincoln Downs Racetrack was about to open for its season and the jockeys were assembling preparatory to the first days of racing. According to Gail's employer, racing started that year at Lincoln Downs in February and continued on until May or June.
In March 1965, Lucille travelled alone from West Virginia to Rhode Island and spent two days and nights at Gail's apartment. On the third day she left this state and returned to West Virginia. On March 27, 1965, she and one Frederick Kratz were married by a minister in Maryland and thereafter returned to West Virginia where they took up residence with the children. On April 3, 1965, six days after Lucille's purported nuptials, Gail filed the instant petition in the family court alleging as gross misbehavior Lucille's conceded cohabitation with her new 'husband,' Frederick Kratz. Sometime later Gail moved from his apartment in Pawtucket to Providence where he occupied a room in a house inhabited by the parents of his employer.
The state is an interested party in maintaining the regularity of divorce proceedings. Carvalho v. Carvalho, 97 R.I. 132, 196 A.2d 164; Puhacz v. Puhacz, 55 R.I. 306, 180 A. 377. The family court may award a divorce from bed, board and future cohabitation for certain causes '* * * provided, the petitioner shall be a domiciled inhabitant of this state and shall have resided in this state such length of time as to the court in its descretion shall seem to warrant the exercise of the powers in this section conferred.' G.L.1956, § 15-5-9.
Jurisdiction of the family court to grant a divorce is created and defined by the legislature. The general assembly has given the family court jurisdiction of divorce from bed and board only when the petitioner is a domiciled inhabitant of this state prior to and at the time of the filing of the petition. Walker v. Walker, 32 R.I. 28, 78 A. 339. In McCarthy v. McCarthy, 45 R.I. 367, 122 A. 529, this court declared that in order for a person to establish a domicile and become a domiciled inhabitant of Rhode Island, there must be an actual abode in this state with the intention in good faith to live here permanently and without any present intention of changing the home in the future. Actual residence, we said, unaccompanied by such an intention does not suffice. The intention therefore of the person seeking to establish a domicile is an essential element which must be proven.
As the real intention of a person seeking to establish the existence of a domicile is known only to him, any statements he makes, particularly as in the case at bar, are not controlling but the truth of his assertions are to be determined by the court upon the consideration of all the evidence. We held in Gourlay v. Gourlay, 15 R.I. 572, 10 A. 592...
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