Pope v. Pope

• Decision Date: 12 January 1926
• Docket Number: Case Number: 16555
• Citation: 1926 OK 19,243 P. 962,116 Okla. 188
• Parties: POPE v. POPE.
• Court: Oklahoma Supreme Court

1926 OK 19

243 P. 962

116 Okla. 188

POPE v. POPE.

Case Number: 16555

Supreme Court of Oklahoma

Decided: January 12, 1926

Syllabus

¶0 1. Divorce--Appeal--Review of Evidence--Finding as to Jurisdictional Residence of Plaintiff. An action for divorce is one of equitable cognizance, and the finding of the trial court that the plaintiff had been a resident of Oklahoma for a year next before the filing of the petition is not conclusive upon appeal, but this court will consider all the evidence and weigh it to ascertain whether or not the judgment is against its weight, and if the judgment is clearly against its weight, then render or cause to be rendered such judgment as the trial court should have rendered, but if not clearly against its weight, then affirm the judgment.

2. Divorce--Statutory Requirement as to Residence of Plaintiff.Under section 502, C. S. 1921, it must be made to appear in an action for divorce that plaintiff has been a resident in good faith of this state for one year next before the filing of the petition as a prerequisite to the court's jurisdiction to grant relief.

3. Domicile--Wife's Domicile That of Husband. The domicile of a married woman, while she lives with her husband, either under guardianship or not, is the domicile of her husband; that is, her residence is merged into his.

4. Divorce--Domicile a Question of Fact--Evidence--Appeal. The question of domicile in an action for divorce is one of fact to be determined from the evidence in the case. The controlling fact to be considered is the fact of intention, and to determine this fact the trial court, and this court on appeal, may take into consideration all the movements, transactions, and attending circumstances of the party or parties involved in the question.

Wilson, Murphey & Duncan, for plaintiff in error.

Hargis, Yarbrough & Williams and Widdows & McCoy, for defendant in error.

THREADGILL, C.

¶1 On August 18, 1924, this action was commenced by defendant in error, as plaintiff, against plaintiff in error, as defendant, to obtain a divorce and to restrain defendant from "in any manner interfering with her." The parties will be referred to as they appeared in the trial court.

¶2 The ground alleged in the petition was extreme cruelty. On September 18, 1924, plaintiff filed an amended petition, in which she alleged that she was a resident for more than one year of Osage county, and stated facts showing fraud and undue influence on the part of defendant and his brother, O. V. Pope, who was her, step-father, in consummating a marriage ceremony between her and defendant. She stated that she was a full-blood Osage Indian and in feeble health, and was induced by defendant and her step-father to go to Colorado for the summer of 1922, and the two brothers conspired together to get large sums of money from her; that she trusted her step-father and depended upon his counsel and advice to an unlimited degree. Upon these facts she asked for an annulment of the marriage. For a second cause of action, she states facts tending to show extreme cruelty on the part of the defendant to herself and her four children by her former husband; also facts tending to show that defendant had used her money and bought property in his name, and she asks for a divorce and for the money or the property bought with the money belonging to her. There was a demurrer to the amended petition by defendant, which was overruled. The court made an order requiring the defendant to deliver to plaintiff a certain Lincoln automobile.

¶3 On November 22, 1924, defendant filed his answer and cross-petition, in which he denies generally the allegations of the petition, and further states, in substance, that plaintiff is an incompetent, under guardianship, and the guardian should be made a party to the action; that he was married to plaintiff in June, 1924, but denies any conspiracy or undue influence in the matter. He states the marriage was in good faith and his conduct not subject to reproach by plaintiff; that his brother, who was step-father to plaintiff, assisted plaintiff and defendant in buying a home in Colorado. That soon after he and plaintiff moved to Colorado, she became interested in her former husband, Ridge King, from whom she was recently divorced and who was soon thereafter convicted of a felony and sent to the penitentiary, and commenced to correspond with him, and had an understanding that as soon as he was released from prison she should marry him again. He further states that the guardian of plaintiff refused to put up any money to defray her expenses to Colorado when she was in delicate health, and he and his brother, O. V. Pope, borrowed $ 4,339.30, and put out $ 2,000 on a home for plaintiff in Colorado, and pledged their credit for other money, making in all a total of $ 7,283.30, for which defendant is personally liable. That plaintiff's health was greatly improved by her visit and stay in Colorado, and he and his brother were entitled to credit for it as a defense against her charges of fraud and conspiracy to take undue advantage of her. Upon these facts defendant asks that the relief asked for by plaintiff be denied, and that he be given judgment against her for the sum of $ 7,283.30. On December 4, 1924, plaintiff filed a reply to defendant's answer and cross-petition, consisting of a general denial, and further denies that she received any funds from the defendant to defray her expenses to spend the summer in Colorado. She denies any part in pledging the defendant's credit for $ 7,283.30, and further specifically denies the affirmative allegations of the answer and cross-petition. The cause was tried to the court on January 9, 1925, and resulted in a judgment in favor of the plaintiff for a divorce, from which the defendant prosecutes this appeal, and urges but one assignment of error to reverse the judgment, and that is, that the court was without jurisdiction to render judgment in the case for the reason that plaintiff had not been a resident of the state for a period of one year next preceding the filing of her petition. The defendant urges his contention under four propositions:

(1) The first is "The finding of the trial court that the plaintiff had been a resident of Oklahoma for a year is not conclusive upon appeal." This proposition is based upon the rule that, in actions of equitable cognizance, the Supreme Court will consider all the evidence and weigh it to ascertain if the judgment is clearly against its weight, and if the judgment is against its weight, then it is the duty of the court to render, or cause to be rendered, such judgment as the trial court should have rendered, but if not clearly against the weight of the evidence, the judgment should be affirmed. Dotterer v. C., R. I. & P. Ry. Co., 78 Okla. 67, 188 P. 1055; Pelham Petroleum Co. v. North, 78 Okla. 39, 188 P. 1069; Orton v. Citizens' State Bank, 99 Okla. 80, 225 P. 899; Keechi Oil & Gas Co. v. Smith., 81 Okla. 266, 198 P. 588; Gorman v. Carlock, 72 Okla. 104, 179 P. 38. It will be observed that an action for divorce is one of equitable cognizance and these cases furnish the correct rule as to the sufficiency of the evidence to support the judgment.

(2) Defendant's second proposition is that the matter of residence in a divorce action under the statutes of Oklahoma is jurisdictional.

¶4 Section 502, Comp. Stat. 1921, provides as follows:

"The plaintiff in an action for divorce must have been an actual resident, in good faith, of the state, for one year next preceding the filing of the petition, and a resident of the county in which the action is brought at the time the petition is filed."

¶5 The construction universally placed on similar statutes to this one by all the states holds that the requirement as to residence is jurisdictional. In 9 R. C. L. page 399, par. 195. page 402, par. 198, the general rule is stated as follows:

"The statutes generally require that the party applying for the divorce shall have resided in the state for a designated time prior to the filing of the bill or petition for a divorce; such provisions are regarded as mandatory, and no court has power to grant a decree of divorce until it affirmatively appears that the plaintiff has resided in the state as required by the statute."

¶6 Our statute was adopted from Oklahoma Territory, and the Supreme Court of said territory, in construing it, laid down the rule as follows:

"The plaintiff in an action for divorce must have been an actual resident in good faith of the territory for 90 days next preceding the filing of the petition, and a resident of the county in which the action is brought at the time the petition is filed. Such residence is a jurisdictional fact, that must be alleged and proven by the plaintiff, and must affirmatively appear in the record. Jurisdiction of the subject-matter cannot be acquired by waiver or consent. Not only the courts look at the matter of jurisdiction without the question being raised by the parties, but in every case they are bound to inquire whether the facts presented give jurisdiction." Beach v. Beach, 4 Okla. 359, 46 P. 514; see also, Irwin v. Irwin, 3 Okla. 186, 41 P. 369.

(3) Defendant's third proposition is that the residence or domicile of a married woman is that of her husband, and a long list of authorities is cited in support thereof. There is no question about this being the law, and it is so conceded by all the authorities. It may also be conceded that, under section 6592, Comp. Stat. 1921, the residence of a married woman under guardianship, while she lives with her husband, is the same as her husband's. Kersey v. Mc Dougal, 79 Okla. 53, 191 P. 594.

(4) Defendant's fourth proposition is that the uncontradicted evidence shows that neither of the

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