Rollings v. Rollings, 5186.

• Decision Date: 02 November 1931
• Docket Number: No. 5186.,5186.
• Citation: 60 App. DC 305,53 F.2d 917
• Parties: ROLLINGS v. ROLLINGS
• Court: U.S. Court of Appeals — District of Columbia Circuit

60 App. DC 305, 53 F.2d 917 (1931)

ROLLINGS v. ROLLINGS

No. 5186.

Court of Appeals of the District of Columbia.

Argued October 12, 1931.

Decided November 2, 1931.

William L. Thomas and Tracy L. Jeffords, both of Washington, D. C., for appellant.

S. McC. Hawken, George F. Havell, and Harry H. Hollander, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and VAN ORSDEL and GRONER, Associate Justices.

GRONER, Associate Justice.

Appellee, whom we shall hereafter speak of as Mrs. Rollings, brought suit in the Supreme Court of the District for absolute divorce from her husband, appellant, whom we shall hereafter speak of as Dr. Rollings. At the subsequent hearing, the trial court refused an absolute divorce, but granted a divorce a mensa on the ground of cruelty. From this decree, Dr. Rollings appeals on the ground that the lower court had no jurisdiction, because at the time Mrs. Rollings's suit was filed she was a resident of West Virginia, and not a resident of the District of Columbia.

The parties were married in the District of Columbia in 1888, and remained here until 1896. They then moved to West Virginia, where they bought a lot and built a home, and where Dr. Rollings practiced his profession until 1918, a period of twenty-two years. In the latter year, Dr. Rollings was commissioned as a surgeon in the Army, and from thence until 1921 was stationed on vessels or at posts in the military service. A year after Dr. Rollings left West Virginia to join the medical staff of the Army, Mrs. Rollings left West Virginia and came to Washington as a war worker. In 1921, after Dr. Rollings's discharge from the Army, he was appointed to a position in the Veterans' Bureau and stationed at Washington, and from thence on, until the separation and the commencement of Mrs. Rollings's suit for divorce, they continued to reside together in the District of Columbia as husband and wife.

The evidence, we think, abundantly shows that Dr. Rollings, notwithstanding his residence in Washington after leaving the Army, regarded himself as a citizen of West Virginia. He paid his poll taxes and voted there in the elections, and we think the evidence shows the same to be true of Mrs. Rollings, for she, too, after the extension of the franchise to women, went to West Virginia and made oath in accordance with the laws of that state that she was a citizen of West Virginia, resident in the county in which she and her husband had lived together for twenty-two years; that she had no other legal residence, and that she was entitled to vote in West Virginia. This occurred about 1920, and, after the passage by West Virginia of a law providing for absentee voting, she continued to vote by mail in the elections in West Virginia, at least up to and until the fall of 1926. Under the laws of West Virginia, an absentee voter, to be entitled to a ballot and to the privilege of voting, must, in each application for such ballot, make oath that he or she is a duly qualified voter under the laws of the state of West Virginia, having resided in the state for twelve months and in the county in which he or she offers to vote for at least sixty days next preceding the election, and, by way of justification for the issuance of the ballot, must account for his or her temporary absence from the state.

Mrs. Rollings testified that she made the required oath and the required explanation, and thoroughly understood what she did, nor do we understand that she now repudiates any part of it or claims that at that time she had any other purpose or intention than to claim her residence in West Virginia. Between the time when she filed her election oath in 1926 and the filing of her suit on January 16, 1928, she continued, as she herself says, to live with her husband in their apartment in Washington city as husband and wife. So that we have here a case in which both husband and wife, though sojourning in the District of Columbia, in the most positive way...