Reubelmann v. Reubelmann

Decision Date03 November 1923
Citation38 Idaho 159,220 P. 404
PartiesMARY E. REUBELMANN, Respondent, v. LOUIS REUBELMANN, Appellant
CourtIdaho Supreme Court

DIVORCE - PLAINTIFF - DOMICILE - RESIDENCE - TEMPORARY ABSENCE FROM STATE-EVIDENCE-CORROBORATION-EXTREME CRUELTY.

1. The essential difference between residence and domicile is that the first involves the intent to leave when the purpose for which one has taken up his abode ceases. The other has no such intent; the abiding is animo manendi.

2. The "residence" contemplated by C. S., sec. 4639, is intended to mean "domicile."

3. The temporary absence from this state of one domiciled here will not be held a change of residence, unless to the factum of residence elsewhere be added the animus manendi, for a domicile, having once been acquired, continues until a new one is actually acquired animo et facto.

4. No general rule can be laid down as to the degree of corroboration required in a divorce action, but each case must be decided on its own facts and circumstances.

5. When the ground of the divorce action is extreme cruelty it is frequently impossible to obtain corroboration of the specific acts of cruelty alleged, but in such cases there may be evidence of other facts that furnish a degree of corroboration sufficient to meet the requirements of the statute. The court had a right to consider all facts and circumstances in evidence, outside of the testimony and admissions of the parties, that threw any light on the conduct of the appellant toward the respondent in determining whether or not the testimony of the respondent was sufficiently corroborated.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Ralph W. Adair, Judge.

Action for divorce. Judgment for plaintiff. Modified and affirmed.

Judgment affirmed. No costs to either party.

W. H Witty and John W. Peter, for Appellant.

C. S secs. 4639, 4640, on residence, mean just what they say. There is a vast difference between the words "residence" and "citizen" as used in such statutes, and especially where it is jurisdictional, as it is here. (Steigleber v. McQuesten, 198 U.S. 141, 25 S.Ct. 616, 49 L.Ed. 986; Parker v. Overman, 18 How (U. S.) 137, 15 L.Ed. 318; Robertson v. Cease, 97 U.S. 646, 24 L.Ed. 1057.)

There is no corroboration of the plaintiff's testimony, and no testimony on her part that she suffered any pain, suffering or humiliation of any kind, and the trial court having made no findings on this point, it is inconceivable upon what theory the decree can be sustained. (Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94; Barker v. Barker, 25 Okla. 48, 105 P. 347, 26 L. R. A., N. S., 909; Strode v. Strode, 6 Idaho 67, 96 Am. St. 249, 52 P. 161; Rowe v. Rowe, 84 Kan. 696, 115 P. 553; De Cloedt v. De Cloedt, 24 Idaho 277, 133 P. 664.)

In dividing the community property the trial court abused his discretion in view of the record, even if the divorce is sustained. (Bell v. Bell, 15 Idaho 7, 96 P. 196.)

Peterson & Coffin, Chas. H. Darling and W. J. Ryan, for Respondent.

"The word 'residence' as used in divorce statutes should be equivalent to 'domicile,' but the qualification of citizenship is not exacted." (19 C. J. 26; Connolly v. Connolly, 33 S.D. 346, 146 N.W. 581; Carpenter v. Carpenter, 30 Kan. 712, 46 Am. Rep. 108, 2 P. 122; Beeman v. Kitzman, 124 Iowa 86, 99 N.W. 171; Hanson v. Hanson, 78 N.H. 560, 103 A. 307; Sneed v. Sneed, 14 Ariz. 17, 123 P. 322, 40 L. R. A., N. S., 99.)

In the above-cited cases it has been held, under statutes very similar to C. S., sec. 4639, that the word "residence" has practically the same meaning as the word "domicile."

"An established domicile is not lost merely by a temporary absence therefrom, or temporary residence elsewhere, however long-continued, even for a period of years." (19 C. J. 423; People v. Platt, 117 N.Y. 159, 22 N.E. 937; In re Barclay's Estate, 259 Pa. 401, 103 A. 274.)

"There must have been a concurrence of both the factum of removal and the animus to remain in the new locality before the domicile can be considered lost." (Dow v. Gould & Curry Silver Mining Co., 31 Cal. 629; Keith v. Stetter, 25 Kan. 70; Hart v. Horn, 4 Kan. 198; 9 R. C. L. 403; Duxstad v. Duxstad, 17 Wyo. 411, 129 Am. St. 1138, 100 P. 112.)

No definite rule as to the degree of corroboration required could be laid down, and each case must be decided according to its own facts and circumstances. (Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94; Blanchard v. Blanchard, 10 Cal.App. 203, 101 P. 536; MacDonald v. MacDonald, 155 Cal. 665, 102 P. 927, 25 L. R. A., N. S., 45; Piatt v. Piatt, 32 Idaho 407, 184 P. 470.)

The trial court did not abuse its discretion in assigning the community property to the parties and the distribution as made is not inequitable to the appellant. (De Cloedt v. De Cloedt, 24 Idaho 277, 133 P. 664; Later v. Haywood, 15 Idaho 716, 99 P. 828; Swanson v. Kettler, 17 Idaho 321, 105 P. 1059; Snowy Peak etc. Co. v. Tamarack etc. Min. Co., 17 Idaho 630, 643, 107 P. 60; Thomsen v. Thomsen, 31 Cal.App. 185, 159 P. 1054; Nave v. Nave, 35 Cal.App. 27, 169 P. 253; Rose v. Rose, 112 Cal. 341, 44 P. 658.)

DUNN, J. Budge, C. J., and McCarthy, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

DUNN, J.

This is an action for divorce brought by the wife against the husband on the ground of (1) extreme cruelty and (2) nonsupport. Findings of fact and conclusions of law were made by the trial court sustaining the charge of cruelty and also the charge of nonsupport. Decree was entered granting a divorce to the wife and awarding her more than one-half of the community property.

The appeal is from the judgment and appellant assigns as error the action of the court in finding (1) that respondent had resided in Idaho for more than one year next before the bringing of the action; (2) that defendant was guilty of extreme cruelty in calling respondent vile names; (3) that the charge of nonsupport was sustained, and (4) in concluding that respondent was entitled to the Dearborn rooming-house and the note for $ 1,000 due from one Van der Donckt.

It is beyond question that appellant and respondent were domiciled in Idaho and lived together as husband and wife from 1884 and in Pocatello from 1887 to November, 1919. The only question about this point is whether respondent, by going to California in November, 1919, and remaining there almost all the time up to February, 1920, lost her legal residence in Idaho. We think she did not. It is shown that appellant went to California immediately after respondent went and that for about two months after their arrival there they lived together as husband and wife. He returned to Idaho in January, 1920, while she remained in California until October, 1920, when she returned to Idaho for about ten days. She then went back to California and remained until February, 1921, when she returned to Pocatello and began this action for divorce. No special reason is assigned for her stay in California, but the record shows her to have been in a nervous condition, which might have necessitated the move. There is nothing whatever in the record to suggest her lack of residence in Idaho at the time this action began except the fact that, after more than thirty years of continuous residence in this state, she was actually without the state for the period stated. There is not a word of testimony showing an intention on her part to forfeit her domicile in Idaho. Without such intention no such result would follow her stay in California. In discussing a situation very similar to that involved here, the New Jersey court of errors and appeals, in the case of Harral v. Harral, 39 N.J. Eq. 279, 285, 51 Am. Rep. 17, said:

"A person sui juris may change his domicile as often as he pleases. To effect such change . . . . there must be a voluntary change of residence; the residence at the place chosen must be actual; to the factum of residence there must be added the animus manendi; and that place is the domicile of a person in which he has voluntarily fixed his habitation, and not for a mere temporary or special purpose, but with a present intention of making it his home unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home." (Watkinson v. Watkinson, 68 N.J. Eq. 632, 638, 6 Ann. Cas. 326, 60 A. 931, 69 L. R. A. 397; Duxstad v. Duxstad, 17 Wyo. 411, 129 Am. St. 1138, 100 P. 112; People v. Platt, 117 N.Y. 159, 22 N.E. 937.)

The rule as to domicile laid down by the New Jersey court is the correct one to be applied, under our statutes, and is as follows:

"The temporary absence from this state of one domiciled here will not be held a change of residence, unless to the factum of residence elsewhere be added the animus manendi, for a domicile, having once been acquired, continues until a new one is actually acquired animo et facto." (Watkinson v. Watkinson, 68 N.J. Eq. 632, 6 Ann. Cas. 326, 60 A. 931, 69 L. R. A. 397.)

C. S., sec. 4639, reads as follows:

"A divorce must not be granted unless the plaintiff has been a resident of the state for 12 months next preceding the commencement of the action and of the county in which the action is instituted for six months where the cause of action arises outside this state."

A "resident" of the state as contemplated by this section includes one who has clearly been domiciled within this state for a long period of time, but who has been temporarily absent from the state during much, if not all, of the year immediately preceding the bringing of the divorce action, as in this case, without an intention to change the domicile, but it does not include one who, for many years may have been actually residing within the state, but without...

To continue reading

Request your trial
11 cases
  • Robinson v. Robinson, 7516
    • United States
    • United States State Supreme Court of Idaho
    • December 15, 1949
    ...home, to which, when absent, he intends to return, and from which he has no present purpose to depart.' 159 A.L.R. 499. Reubelmann v. Reubelmann, 38 Idaho 159, 220 P. 404; Robinson v. Robinson, 362 Pa. 554, 67 A.2d 273; Hawkins v. Winstead, 65 Idaho 12, 138 P.2d 972; Williams v. State of No......
  • IHC Hospitals, Inc. v. Board of Com'rs of Bonneville County, 17585
    • United States
    • Court of Appeals of Idaho
    • February 2, 1990
    ...equate "residency" with "domicile" would not be acceptable. The distinction was noted by our Supreme Court in Reubelmann v. Reubelmann, 38 Idaho 159, 164, 220 P. 404, 409 (1923):The essential distinction between residence and domicil is that the first involves the intent to leave when the p......
  • Intermountain Health Care, Inc. v. Board of Com'rs of Blaine County, 15334
    • United States
    • United States State Supreme Court of Idaho
    • September 23, 1985
    ...becomes his domicil; if his intent be to leave as soon as his purpose is accomplished, it is his residence." Reubelmann v. Reubelmann, 38 Idaho 159, 164, 220 P. 404, 405 (1923) (citing bouvier's laW dictionaRy 2920 (rawle's rev. 3d The concept of residence, although broad in its pure form, ......
  • Finnell v. Finnell, 6566
    • United States
    • United States State Supreme Court of Idaho
    • July 7, 1938
    ...... include a divorce action. (Gorges v. Gorges, 42. Idaho 357-365, 245 P. 691; Stewart v. Stewart, 32. Idaho 180-185, 180 P. 165; Reubelmann v. Reubelmann,. 38 Idaho 159, 220 P. 404; sec. 1, p. 132, Sess. Laws 1937;. sec. 31-702, I. C. A.; Wynn v. Wynn, 39 Ariz. 580, 8. P.2d 1081; ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT