Smith v. Smith
| Decision Date | 27 May 1886 |
| Parties | FLORENCE A. SMITH, APPELLEE, v. JAMES WOODS SMITH, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Sherman county. Tried below before TIFFANY, J.
Affirmed.
Jas. E Philpott, for appellant.
Wall & Heath, Lewis A. Groff, and A. H. Conner, for appellee.
In August, 1883, the plaintiff filed a petition in the district court of Sherman county against the defendant for a divorce a vinculo matrimonii, for the custody of a child of said parties, and for alimony, and on the trial of the cause a decree was rendered in her favor with alimony in the sum of $ 6,000, to be paid in installments. The defendant appeals.
The plaintiff alleges in her petition that she has been a resident of this state for one year last past, and that she is at the present time a bona fide resident of Sherman county; that on the 24th day of August, 1871, at Cincinnati, Ohio, was married to the defendant, and ever since has been a faithful wife.
That she had, while married to Smith, one child, Harry W. Smith, now 10 years old.
That defendant, on or about the 17th day of April, 1883, committed adultery with one Lotta W. Smith, at Salt Lake City, in Utah territory, and at sundry and divers times between March 27, 1883, and July 30, 1883, at said Salt Lake City, and divers other places in said territory, commit adultery with said Lotta W. Smith, and that the defendant has left her and resides, as she believes, in said Salt Lake City.
That on the 11th day of December, 1882, the defendant filed his petition for a divorce in the probate court for Salt Lake county, Utah territory, against the plaintiff, and alleged therein that this defendant, for one year last past, has been an actual bona fide resident of Salt Lake City and county, in Utah territory; that this plaintiff has been guilty of cruel treatment towards defendant to the extent of causing him great mental distress; that their infant son had suddenly died in December, 1879, and plaintiff continually ever since cruelly and heartlessly accused the defendant of being the murderer of said child.
That defendant, in July, 1880, took plaintiff to Loup City, where he had established himself in business, and had purchased property to provide plaintiff with an inviting and comfortable home, and that plaintiff, without cause, refused to live there, she alleging that she would not live in a new western country, and would not reside in the same county where defendant's father and father's family were brought by defendant to live; that plaintiff had refused to live and cohabit with defendant; that all the allegations said petition contained were in fact false and untrue; that the defendant concealed from her both the pendency of said suit and the fact that said probate court had, on the 27th day of March, 1883, by the fraudulent, false, and untrue evidence of defendant, been led to grant defendant a so-called decree of divorce, and had given the custody of said Harry W. Smith to defendant.
That said defendant, since the 27th day of March, 1883, has wrongfully and unlawfully gone through the ceremony of marriage with said Lotta W. Smith, and has since cohabited with her in a state of adultery at said Salt Lake City, and at divers other places in said Utah territory.
That said so-called divorce decree is fraudulent, null, and void, and that said marriage with said Lotta W. Smith is null and void. That said probate court, on said 11th day of December, 1882, had no jurisdiction of the subject matter of said petition of defendant's, and no jurisdiction of the person of this defendant.
That defendant is the owner of real property of the value of $ 20,000, and personal property of the value of $ 12,000, and plaintiff is entirely without means to support herself and child, or to prosecute this action, and defendant refuses and neglects to supply the necessities of the plaintiff and said child.
On the 27th day of January, 1884, defendant filed his answer, setting up his defense as follows:
1st. Defendant admits he was so married to the plaintiff; that Harry W. Smith is the issue of said marriage; that his residence was in said Salt Lake City; that he filed said petition in Sherman county district court, and denies that it was fraudulently and unlawfully filed. He admits the withdrawing of said petition from said district court, and denies that he withdrew it for the reasons and intent set forth in plaintiff's petition.
He admits that on the 11th day of December, 1882, he filed his said petition for a divorce from the plaintiff in the probate court in said Salt Lake county, in Utah territory, and that said petition contained the said allegations set forth in plaintiff's petition in this suit, but denies that said allegations were false, and avers that they were in fact true.
He admits that on the 27th day of March, 1883, by the decree of said probate court, he was divorced from the plaintiff herein from the bonds of matrimony, which decree is in the words and figures as follows:
James Woods Smith vs. Florence A. Smith, Findings.
This cause having been this day submitted to the court for decision, upon the complaint of the plaintiff, the default of the defendant, and the testimony, and proofs, the court finds the following facts:
1st. The plaintiff and defendant were married at Cincinnati, Ohio, August 24, 1871.
2d. Plaintiff is, and has been for more than a year prior to institution of this action, and now is, a bona fide resident of the county of Salt Lake, within the jurisdiction of this court.
3d. Plaintiff and defendant have one child.
4th. That from the year 1879, and including December of that year, the defendant has been guilty of cruel treatment of the plaintiff, to the extent of causing great mental distress to the plaintiff, in accusing him unjustly of the murder of his deceased boy; by refusing to live with him, by insulting and abusing himself, his father, and his father's family, without provocation, * * * and in refusing to cohabit with him.
CONCLUSIONS OF LAW.
1st. That plaintiff is entitled to a decree from this court dissolving the bonds of matrimony between plaintiff and defendant, decreeing each to be free and absolutely released from the bonds of matrimony.
2d. That plaintiff is entitled to the sole charge and custody of his said son.
Probate Judge for said Salt Lake County.
Defendant alleges that from and since the 27th day of March, 1883, the plaintiff has not been the wife of the defendant.
Defendant admits that since the 27th day of March, 1883, he was married to one Lotta W. Smith, and denies that said marriage was unlawful and wrongful; and denies that he has cohabited with said Lotta W. Smith at Salt Lake City, in the territory of Utah, and at sundry and divers other places in Utah territory, in a state of adultery. He denies each and every other allegation contained in plaintiff's petition, and prays that said decree herein pleaded may be undisturbed and sustained and enforced in the state of Nebraska; that plaintiff take nothing by her petition, and that defendant go hence without day.
On the 2d day of May, 1884, the plaintiff filed her reply, stating therein that she "denies that the notice ordered to be published by the probate court of Salt Lake county, Utah, was published by said plaintiff in said suit of James Woods Smith vs. Florence A. Smith, for the time and as required by order of said probate court, and as required by the laws of the territory of Utah."
The first objection made by the appellant is that the proof fails to show that the plaintiff had been a resident of the state for one year prior to filing her petition, and that she was a bona fide resident thereof when the action was brought. The statute requires a six months' residence before bringing the action, and that the party shall be a bona fide resident of the state. The testimony clearly shows that the domicile of the defendant for a number of years prior to the bringing of this action was at Loup City. The general...
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