Polk v. Polk

• Decision Date: 21 August 1930
• Docket Number: 22551.
• Citation: Polk v. Polk, 158 Wash. 242, 290 P. 861 (Wash. 1930)
• Court: Washington Supreme Court
• Parties: POLK v. POLK.

290 P. 861

158 Wash. 242

POLK v. POLK.

No. 22551.

Supreme Court of Washington

August 21, 1930

Department 1.

Appeal from Superior Court, King County; Robert M. Jones, Judge.

Divorce action by Lillie May Polk against John L. Polk. From a judgment of dismissal, plaintiff appeals.

Reversed and remanded.

Long &amp Hammer, of Seattle, for appellant.

James E. Bradford, of Seattle, for respondent.

MILLARD J.

This is an action by a wife for divorce from her husband upon the grounds of cruelty, nonsupport, and desertion. While of the opinion that 'the plaintiff had for many years been subjected by the defendant to cruel treatment such as would, beyond peradventure of a doubt, entitle her to a divorce from him upon that ground,' the trial court found that the plaintiff had not been a resident of this state for the required statutory period of one year (section 984, Rem. Comp. Stat.) immediately preceding the commencement of the action, and entered a judgment of dismissal, from which the plaintiff has appealed.

Respondent and appellant intermarried in Seattle in 1918, purchased a home in that city the same year, and continuously resided there until March, 1927. Being unemployed in March, 1927 respondent accepted the invitation of appellant's mother to visit her on a farm near Bovina, N.Y. Respondent's family, consisting of himself, appellant, and their three children, resided on the New York farm until September, 1927, when the owner of the farm and the respondent disagreed as to the amount of compensation due the respondent. The respondent departed from the farm and went to Fort Lee, N. J., near the home of his mother. Obtaining employment at that place, he rented a cottage which he occupied with his mother; and from that time to the present respondent has continuously resided there. In December, 1927, appellant, with her youngest child, went from Bovina, N. Y., to the New Jersey home of the respondent for the purpose, she claimed, of recovering from the respondent a few articles that were of sentimental value to her. She remained at that place approximately two weeks, during which time she was subjected by respondent to indignities that were unbearable. She separated from her husband in New Jersey, returning to her mother's home in New York State. A few weeks subsequent to her departure from New Jersey, she retained Seattle counsel to represent her in her action for divorce. In February, 1928, she verified her divorce complaint which was filed April 3, 1928. In August, 1928, appellant came to Seattle from New York to testify at the divorce hearing. Immediately following the hearing she returned to her employment in New York State and has been in the state of Washington only once since that time--November, 1929, when she was present at the second hearing of her action for divorce.

By mistake service of summons by publication was had upon the respondent based upon an affidavit made by an attorney employed in the office of appellant's counsel, the attorney not knowing that appellant had informed her counsel of respondent's New Jersey address. Based upon the affidavit of publication, a default was entered against the respondent, and in August, 1928, an interlocutory order was entered directing the granting of a divorce to the appellant. Learning of the proceedings, respondent petitioned, as did appellant (who denied any fraud on her part or intention to deceive the court), that the default be set aside and the case set down for trial upon the merits. The application was granted. Respondent answered, denying the material allegations of the complaint and challenging the jurisdiction of the court to hear the action on the ground that the appellant was not a bona fide resident of this state. The trial of the cause in November, 1929, resulted in dismissal of the action as above recited.

Counsel for respondent argues that respondent established his residence in New Jersey and that appellant thereby lost her residence in Washington. Counsel further argues that it was necessary for appellant to re-establish her new residence in Washington for one year after December 26, 1927 (the date she left her husband after living with him in New Jersey for approximately two weeks), in order to confer jurisdiction upon the courts of this state.

Was appellant a resident of this state for one year immediately preceding the commencing of her action April 3, 1928, for divorce? That is the determinative question in this case.

Requisite to the maintenance of this action was residence of one year immediately preceding the commencement of the same.

'Any person who has been a resident of the state for one year may file his or her complaint for a divorce * * * in the superior court of the county where he or she may reside, and like proceedings shall be had thereon as in civil cases.' Section 984, Rem. Comp. Stat.

Appellant does not concede that she ever lost her residence in Seattle. She contends that she never acquired a permanent home elsewhere, and that it was her intention to return to Seattle within a year or two when her boys would be able to assist her in paying the mortgage on the Seattle home.

What are the facts as to the residence of appellant and respondent as a marital community and separately?

From 1918 until March, 1927, they continuously resided in Seattle. From March until September, 1927, they resided with appellant's mother in Bovina, N. Y., because respondent had lost his employment in Seattle. Prior to his departure from Seattle in March, 1927, the respondent notified the Civil Service Commission of Seattle that his temporary address would be Bovina, N.Y. In April, 1927, he informed the Seattle Civil Service Commission as follows:

'Am writing to advise not to send for me this coming vacation season for temporary work as I am here settling up an estate and will be until next January.'

Respondent was advised September 18, 1928 (five months after appellant commenced her action for divorce and nine months subsequent to December, 1927, when appellant left him for the last time), by the Seattle Civil Service Commission, that his eligibility for employment with the city would soon expire. Did he then state he was a resident of New Jersey? He did not. He replied to that letter as follows, declaring his intention to retain his Seattle residence for the purpose of maintaining his status as a potential civil service employee of Seattle:

'Will be in Seattle next year. In the meantime my address is 5 Windmore Avenue, Hillside, New Jersey. If not asking too much please keep me on the list.'

At the present time the parties have stored with a neighbor in Seattle two boxes of dishes, a table, chairs, and rugs which the respondent placed in storage in March, 1927, when departing for the home of his mother-in-law in New York State. At that time respondent informed the neighbor that he and his family would return as soon as the Seattle Civil Service gave him employment. On the morning of his departure for Bovina he told another neighbor:

'We are going to Lillie's folks on the farm but we will be back. I am going down there to wait until they call me for the Civil Service and then we will be home.'

Listing their home...