Schafer v. Ritchie

• Citation: 162 P. 618,49 Utah 111
• Decision Date: 21 December 1916
• Docket Number: 2961
• Court: Supreme Court of Utah
• Parties: SCHAFER v. M. L. RITCHIE, JUDGE OF THE DISTRICT COURT IN AND FOR THE COUNTY OF SALT LAKE

162 P. 618

49 Utah 111

SCHAFER v. M. L. RITCHIE, JUDGE OF THE DISTRICT COURT IN AND FOR THE COUNTY OF SALT LAKE

No. 2961

Supreme Court of Utah

December 21, 1916

Mandamus by Charles H. Schafer against M. L. Ritchie, Judge of the District Court in and for the County of Salt Lake.

WRIT DENIED.

Hancock & Barnes for plaintiff.

C. M Beck and H. L. Mulliner for defendant.

STRAUP C. J. FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

The plaintiff, Charles H. Schafer, in the district court of Salt Lake County, brought an action against his wife, Pauline L. Schafer, for divorce on the ground of permanent insanity of the wife. In the complaint it is alleged that the plaintiff, for more than a year next preceding the commencement of the action, had been an actual and bona fide resident of Salt Lake County; that the parties were married in June, 1887, in Wabash County, Ill.; that his wife, in May, 1906, by the probate court of Lucas County, in the State of Ohio, was adjudged insane and was confined in the Toledo State Mental Hospital at Toledo, Ohio, more than nine years prior to the commencement of plaintiff's action; and that the insanity of his wife for many years last past has been and is incurable and permanent. Other matters also are alleged with respect to the plaintiff's ability and readiness to continue to support and maintain the defendant, and other matters not material to this inquiry. The plaintiff caused a guardian ad litem to be appointed to represent his wife, and served a copy of the summons and of the complaint upon such guardian and upon the county attorney of Salt Lake County. He also filed the usual affidavit, showing that his wife was a nonresident of the State of Utah, and resided at Toledo, in the County of Lucas, State of Ohio, and was there confined in the Toledo State Mental Hospital, and obtained an order for a publication of the summons. He thereupon caused a copy of the summons and of the complaint to be personally served upon his wife at the hospital by the sheriff of Lucas County, who made due return of such service. The plaintiff, in the course of the proceedings, thereafter applied to the district court for a commission to take the depositions of the superintendent and assistant superintendent of the Toledo State Mental Hospital, and of other physicians and witnesses, to support the allegations of his complaint that his wife, as alleged therein, had been duly and regularly adjudged insane, and that her insanity was incurable and permanent. Upon objections of the county attorney and of the guardian, the court refused to grant the commission, upon the ground that the court had not jurisdiction of the cause. Thus application is made to us for a writ of mandate to direct the district court to order the commission.

The lower court held that it had no jurisdiction for two reasons: (1) Because in the complaint for the divorce it is alleged that the marriage was solemnized without the state, and that the defendant was a non-resident of the state, and because it is not averred that the parties at any time lived together, or that the wife at any time resided within the state, and because it is shown that she was not personally served with a copy of the summons and of the complaint within the state, but in the State of Ohio, and that no personal appearance had been entered by her; and (2) that under the special provisions of the statute of this state, making permanent insanity of the defendant a ground for divorce, to maintain an action and to obtain a decree upon such ground, the defendant, at the time the action is commenced, or when tried, must be within the state, and there personally served with a copy of the summons and of the complaint. That is, on the first stated ground it is claimed that a plaintiff is not entitled to maintain an action for divorce on any of the statutory grounds, though he or she was an actual and bona fide resident of the state for the period fixed by the statute, one year, if there was no matrimonial domicile, nor the defendant personally served with process, within the state, and no appearance by him or her entered in the cause. In other words, that the courts of this state are without jurisdiction to entertain an action for divorce as against a non-resident defendant by publication of summons or other constructive service, when the marriage was not solemnized within the state, nor no matrimonial domicile had therein. We think the weight of authority is against such a holding. In 9 R. C. L. 399, it is said:

"It is well settled in this country that every state has the right to determine the marital status of the persons bona fide domiciled within its limits, and the courts may acquire, under statutory sanction, jurisdiction to dissolve the marriage relation of such persons irrespective of where the marriage was celebrated, or of where the cause of divorce arose, or of where the domicile of the defendant may be; and this is true though the parties never cohabited together as husband and wife within the state. If the plaintiff is a bona fide resident of the state of the forum, it is generally recognized that the courts of that state may acquire jurisdiction to decree a divorce in his or her favor, irrespective of the domicile or residence of the defendant; and such decree will be valid in the state of the forum to dissolve the marriage relation, irrespective of what effect may be given to it in other states."

In 14 Cyc. 588, the rule is thus stated:

"The residence of plaintiff and not that of defendant gives jurisdiction in divorce cases; and by the weight of authority the courts may entertain a divorce suit by a resident against a nonresident, although the service or process is constructive or is made outside of the state and defendant does not appear."

In notes to the case of Succession of Benton, 59 L.R.A. 165; the annotator says:

"Even when the defendant is a nonresident, is served constructively only, and does not appear, the validity of the divorce within the state where rendered, if authorized by the statutes of that state, seems to be generally conceded, even by those courts which hold that a decree rendered under such circumstances has no...