Patch v. Patch

• Decision Date: 21 October 1912
• Citation: 86 Vt. 225,84 A. 815
• Parties: PATCH v. PATCH.
• Court: Vermont Supreme Court

84 A. 815

86 Vt. 225

PATCH

v. PATCH.

Supreme Court of Vermont. Caledonia.

Oct. 21, 1912.

Exceptions from Caledonia County Court; Willard W. Miles, Judge.

Petition for divorce by Minnie O. Patch against Walter D. Patch. From a dismissal of the petition for want of jurisdiction, petitioner excepted. Reversed and remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Dutton & Mulcahy, of Hardwick, for petitioner.

HASELTON, J. This is a petition for divorce brought to the Caledonia county court The court made a finding of facts and dismissed the petition for want of jurisdiction. The petitioner excepted.

The parties were married August 9, 1890. More or less trouble arose between them which it is needless to refer to. September 27, 1910, in the nighttime, while they were living in Johnson, in the county of Lamoille, the husband inflicted some violence upon the person of the petitioner, and attempted to eject her from his house. The court found that this conduct amounted to intolerable severity, and say that they would have granted the bill if the residence necessary to give the Caledonia county court jurisdiction had been made out. The day following the night referred to the petitioner left her husband's abode, taking with her furniture which she claimed to own, and all her clothing and personal belongings. The furniture she stored in a neighbor's barn, where it has since remained. She shortly afterward went to Hardwick, in the county of Caledonia, where she worked out for awhile, and afterwards she went to St. Johnsbury in the last-named county to live with and take care of a woman there resident. Her clothing and personal belongings she took with her from Johnson to Hardwick, and from Hardwick to St. Johnsbury. Since leaving her husband the petitioner has never intended to return to live with him, but has had the intention of living apart from him, and it is her intention to make her home in St. Johnsbury with the woman with whom she lives. The facts found show a residence in St. Johnsbury unless her residence continues to be that of her husband; but the court below failed to find that she resided in Caledonia county on the ground that a wife has not the power "to set up a residence independent of the husband in another place in this state where the husband continues to keep up his residence which the wife has left."

However, where a husband has given his wife cause for divorce, she may leave him and establish an independent residence, and this may be in another county. This our statute recognizes, for it says that petitions for divorce shall be heard and determined in the county in which the parties reside or in which one of them resides, thus recognizing that, in contemplation of the divorce law, they may have separate residences in different counties within this state. P. S. 3070. A husband forfeits the right to determine the residence of his wife when he gives her a ground of divorce as by intolerable severity. 2 Bishop, Marriage, Divorce, and Separation, §§ 112, 127; Chief Justice Shaw in Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372; Cheever v. Wilson, 9 Wall. 108, 19 L. Ed. 604. A full discussion of the question is found in a note to McGrew v. Mutual Life Ins. Co., 84 Am. St. Rep. 27, in subdivisions 3, 6, and 8. Our statute relating to separate support and kindred matters, when a wife is for a justifiable cause living apart from her husband, provides that her petition to secure her rights may be brought in the county in which either of the parties resides, except that, if the petitioner has left the county in which the parties have lived together and the husband still resides therein, the petition shall be brought in that county. P. S. 3108. The court below seems inadvertently to...