Rice v. Rice

• Decision Date: 10 March 1948
• Citation: 134 Conn. 440,58 A.2d 523
• Court: Connecticut Supreme Court
• Parties: RICE v. RICE et al.

134 Conn. 440

58 A.2d 523

RICE

v.RICE et al.

Supreme Court of Errors of Connecticut.

March 10, 1948.

COPYRIGHT MATERIAL OMITTED.

Appeal from Superior Court, New Haven County; Daly, Judge.

Action by Lillian P. Rice against Hermoine P. Rice and others for a declaratory judgment that the divorce decree granted to the deceased while married to the plaintiff was colorable and did not dissolve marriage relation, and that deceased's subsequent marriage to Hermoine P. Rice was invalid. The Superior Court in New Haven County, Daly, J., referred the proceedings to the honorable John W. Banks, state referee. From a judgment for the plaintiff on the report, the defendants appeal.

No error.

Daniel D. Morgan and Thomas F. Seymour, both of New Haven, for appellants.

Ralph H. Clark and Samuel A. Persky, both of New Haven, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

BROWN, Judge.

In this action the plaintiff seeks a declaratory judgment that a decree of divorce granted in Nevada on June 13, 1944, to her husband, the late Herbert N. Rice, was colorable and did not dissolve their marriage. The defendants are the administrators of Rice's estate and Hermoine P. Rice, to whom Rice was married in Nevada on July 3, 1944, and to whom we shall hereinafter refer as the defendant. The Superior Court rendered judgment for the plaintiff and the defendants have appealed. The fundamental question presented for determination is whether Herbert N. Rice had acquired a bona fide domicile in the state of Nevada at the time the divorce decree was entered so that it was a valid decree, entitled to full faith and credit under article IV, § 1, of the constitution of the United States.

The case was fully tried before Pallotti, J., who died without rendering a decision. Pursuant to stipulation of the parties, the court ordered a transcript of the testimony and proceedings of the case as tried, together with the depositions, exhibits admitted in evidence and briefs filed by counsel, referred to a state referee, to be acted upon by him as though originally referred pursuant to §§ 167-178 of the Practice Book 1934. The report of the referee, as amended pursuant to a further stipulation, states that he considered all of the exhibits and evidence ‘subject to such rulings thereon concerning admissibility as were made by the late Judge Pallotti during the trial * * * and made no rulings thereon himself’ and that these rulings ‘may be considered and have the same effect as though they had been made by said State Referee.’ The court overruled the defendants' remonstrance, accepted the report as amended and rendered judgment for the plaintiff.

The material subordinate facts in the report as found by the referee may be thus summarized: The plaintiff and Herbert N. Rice, the intestate, were married July 7, 1921. They lived in this state, first in New Haven and Hamden, and then from 1928 to September, 1942, in Woodbridge. In June, 1942, Rice closed up the incorporated automobile agency which, as principal stockholder, he had conducted in New Haven; most of the equipment was sold, some of it leased, and the rest stored in the Rice residence in Woodbridge. In September, 1942, he obtained a job in Springfield, Massachusetts, and lived there in a rented room until March, 1944. Rice told the plaintiff and others that this was a temporary job and that when the war was over he intended to return to Woodbridge and reopen his automobile business. The plaintiff remained in Woodbridge, and Rice retained his home there during this period.

About the time that Rice went to Springfield he and the defendant, who lived in New Haven, discussed the question of their marriage after he should have secured a divorce from the plaintiff. In February, 1944, he told the defendant that he was going to Reno to get a divorce and that if he got it he was going to ask her to marry him. He further stated that he had been advised that if he did not make his permanent home in Nevada the divorce would be questioned, that after their marriage they must make their permanent home in Nevada, and that he was never coming back to Connecticut. In March, 1944, Rice went to Reno, Nevada, for the sole purpose of obtaining a divorce from the plaintiff and arrived there on March 23. He started his divorce action May 5; service was made on the plaintiff by leaving a copy of the complaint in her hands in Woodbridge on May 12, 1944; no appearance was entered by her and the Nevada court entered a decree granting him a divorce from her on June 13, 1944. Rice telegraphed the defendant that the decree had been granted and on July 3 she arrived in Reno and they were married.

When Rice reached Reno he rented a room by the week in a rooming house and obtained a job at war work. Shortly before the divorce was granted he told the attorney representing him in the action that he had applied to the army employment agency for a job and asked whether it would be all right for him to take a job at Herlong, California. He was told that it would. On the day before his marriage to the defendant he resigned his job in Reno, and upon their return from their wedding trip they went to Herlong, where he had obtained a war job and she a position as nurse at the army post. They lived in Herlong from July 15, 1944, until Rice died on December 23, 1944. In September, 1944, the defendant sent for her household furniture, which she had left in storage in New Haven, and, when received, it was used to furnish the bungalow in which they lived in Herlong. Rice continued to pay rent for his room in Reno at a reduced price per week, although it was occupied part of the time by others. He kept a trunk, some clothing and personal effects in a closet there, and a short time after they went to Herlong the defendant brought a change of clothing which was left in the closet. They came to Reno occasionally for the weekend and then occupied the room. Rice continued to pay rent for the room in Reno because he did not know whether his job in Herlong would be permanent or whether he and the defendant would like it there, for if they did not they intended to return to Reno and make the room their home until they could find a place where they could get a home and start a guest house; and he asked his attorney to be on the lookout for a good location for him in Reno.

Rice told his Reno attorney that he did not intend to return to Connecticut but intended to remain in Reno ‘indefinitely.’ And he so testified in his divorce action. He told other persons that he intended to make it his permanent home. On July 14, 1944, Rice and the defendant opened a joint account in a bank in Reno. In October, 1944, they applied to be made voters in Nevada but were told that such applications could not be granted until they had resided in the state for one year. While the defendants do not claim by their remonstrance that any of these facts was improperly found, they do complain of the referee's failure to find certain further facts. This contention is unavailing, however, because each such fact is immaterial, is expressly or impliedly included in those which have been found, or is not admitted or undisputed within the meaning of § 353(a) of the Practice Book 1934. Morse v. Morse, 128 Conn. 138, 139, 20 A.2d 730. In so deciding this claim of the defendants, we go beyond what they are entitled to upon their brief. By his report, the referee properly found the ultimate fact as to Rice's residence in Reno, and also the subordinate facts. Practice Book 1934, § 169; Fox v. South Norwalk, 85 Conn. 237, 238, 82 A. 642. While the defendants, as was their right, sought by their remonstrance to have added, as undisputed, facts claimed to have been omitted, they did not pursue those grounds of remonstrance in their brief but appealed generally to the evidence to upset the ultimate fact. This they had no right to do.

The only further attack on the finding relates to this final paragraph of the referee's report: ‘Rice never established a home in Reno. He intended to do so in the future if he did not like it at Herlong but did not have an unqualified intention to make a home there at present, and Reno was not his bona fide domicil.’ The words quoted constitute a finding of ultimate fact, a conclusion drawn from the subordinate facts and inferences therefrom. In order to be sustained it must have been logically drawn from those facts, without violation of the plain rules of reason. Palumbo v. Fuller, 99 Conn. 353, 355, 122 A. 63; Conn.App.Proc. § 80. The question for solution is whether under the applicable principles of law the referee was warranted in making this finding and whether the court was justified in rendering its judgment thereon.

Domicil on the part of Rice was a necessary condition precedent to the jurisdiction of the Nevada court. Gildersleeve v. Gildersleeve, 88 Conn. 689, 692, 92 A. 684, Ann.Cas.1916B, 920. This jurisdictional fact, which essentially involves the good faith of Rice in taking up his residence in Reno, is a proper subject of re-examination by the courts of this state. Gildersleeve v. Gildersleeve, supra, 88 Conn. at page 693, 92 A. at page 686; State v. Cooke, 110 Conn. 348, 351, 148 A. 385; Hooker v. Hooker, 130 Conn. 41, 49, 32 A.2d 68; Williams v. North Carolina, 325 U.S. 226, 234, 65 S.Ct. 1092, 89 L.Ed. 1577. The requisites of domicil are actual residence coupled with the animus manendi. Minor, Conflict of Laws, p. 199. ‘To constitute domicil, the residence at...