Smith v. Smith
| Decision Date | 29 April 1898 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Stutsman County; Rose, J.
Action by Charles H. Smith against Malvina W. Smith for a divorce. From a decree granting plaintiff an absolute divorce defendant appeals.
Reversed.
Judgment reversed and action dismissed.
S. E Ellsworth, for appellant.
Respondent came from New York where he had been a resident all his life and unless a change is shown by clear and positive proof he will be presumed a resident of New York. Mitchell v United States, 21 Wall. 350. The only evidence of his intention to make this state his home is his own uncorroborated statement, unaccompanied by proof of any act indicating such intention. Such declarations are entitled to little weight. Gourlay v. Gourlay, 10 At. Rep. 592; Pickering v. City, 144 Mass. 244, 10 N. E. Rep, 827. Acts are stronger than words in proof of residence. Firth v. Firth, 24 At. Rep. 916. Plaintiffs evidence in divorce cases should not alone be relied on to prove residence. McShane v. McShane, 19 At. Rep. 465. The statute requires an actual residence of 90 days as a jurisdictional prerequisite in divorce matters. Section 2755, Rev. Codes; Beach v. Beach, 46 P. 528. A temporary sojourn for divorce purposes, without fixed abode and permanent business connection is not residence. Gardner v. Board, 5 Dak 259-264; Bennett v. Bennett, 28 Cal. 600; Hall v. Hall, 25 Wis. 600; Way v. Way, 64 Ill. 413. A change of residence actuated by the declared intention of procuring a divorce within the jurisdiction removed to is regarded with suspicion, and the evidence relating to such change will be subjected to the closest scrutiny. Winship v. Winship, 16 N.J.Eq. 107; Beach v. Beach, 46 P. 528; Smith v. Smith, 4 Green, (Ia.) 226; Whitcomb v. Whitcomb, 46 Ia. 437; Dutcher v. Dutcher, 39 Wis. 651; Reed v. Reed, 51 Mich. 117; Sewall v. Sewell, 122 Mass. 156; Smith v. Smith, 13 Gray, 209; Com. v. Kendall, 38 N.E. 504; Hall v. Hall, 25 Wis. 600; Dunham v. Dunham, 44 N.E. 841; Dickinson v. Dickinson, 45 N.E. 1091; Munson v. Munson, 14 N.Y.S. 692; Chapman v. Chapman, 21 N.E. 806. A former adjudication of the issues in this case by the courts of the District of Columbia is plead in bar. In that action by Mrs. Smith against respondent permanent alimony was awarded her, and every material point presented in this case was there decided adversely to respondent. Such decree must stand until reversed by a proper proceeding and is a bar to this. Tadlock v. Eccles, 73 Am. Dec. 213; Slater v. Skirving, 70 N.W. 493; Kilheffer v. Heir, 17 Am. Dec. 658. Fischel v. Fischel, 12 Am. Dec. 257; Smith v. Smith, 37 At. Rep. 49. While the parties lived apart by agreement, no charge of desertion can be sustained. Franklin v. Franklin, 28 N.E. 581.
Fredrus Baldwin, for respondent.
The motive which prompted respondent to change his residence to this state is immaterial if he has a permanent home here. Robertson v. Cease, 97 U.S. 646; Shelton v. Tiffen, 6 How. 163. The fact that the liberal divorce laws led to his residence here, does not preclude him from the rights of an inhabitant of the state. Fasdick v. Fasdick, 15 R. I. 130, 23 At. Rep. 140; Colburn v. Colburn, 70 Mich. 647; Alber v. Alber, 141 Ill. 550, 31 N.E. 153, The words actual resident as used in the divorce statute means residence with the same attributes as are intended when the word domicile is used. Carpenter v. Carpenter, 30 Kan. 715, 2 P. 122. The law of the place of the actual bona fide domicile of the parties gives jurisdiction to decree a divorce for any cause allowed by local law. Story Confl. L. 230; Whart. Confl. L. 856; 2 Bish. M. D. & S. 141. The trial court found that defendant was guilty of extreme cruelty. Grevious mental suffering inflicted upon another is extreme cruelty within the meaning of the statute. Carpenter v. Carpenter, 30 Kan. 712, 2 P. 122; Whitmore v. Whitmore, 49 Mich. 417; Avery v. Avery, 33 Kan. 1; Barnes v. Barnes, 30 P. 298; Fleming v. Fleming, 30 P. 566. Plaintiff need not prove injury to the health to obtain a divorce because of mental suffering. Robinson v. Robinson, (N. H.) 49 Am. St. Rep. 632; Poor v. Poor, 29 Am. Dec. 674; Morris v. Morris, 73 Am. Dec. 619; Myers Appeal, 12 Am. St. Rep. 877; Sharp v. Sharp, 6 N.W. 15; Kelley v. Kelly, 1 P. 194; Cole v. Cole, 23 Ia. 433. A judgment is conclusive as an estoppel only as to facts without the existence and proof or admission of which it could not have been rendered. Leonard v. Whitney, 109 Mass. 265; Palmer v. Hussy, 87 N.Y. 303; Burlen v. Shannon, 14 Gray, 433; McIntyre v. Story, 80 Ill. 127.
This action was brought to obtain a divorce from the bonds of matrimony. In the court below the plaintiff prevailed, and obtained a judgment decreeing a total divorce between the parties on the grounds of the defendant's cruelty and desertion. The record transmitted to this court embraces all the evidence, and the case is now before the court for trial anew on the merits, under section 5630, Rev. Codes.
In the view which we have taken of the questions presented by the record, it becomes unnecessary, if not improper, in disposing of the case, to do more than to discuss a single feature thereof, viz. that which bears upon plaintiff's domicile in the state, as affecting the jurisdiction of the trial court over the subject matter of the action. We are convinced, after a careful review of the evidence,--all of which upon this point came from the plaintiff's side of the case,--that the plaintiff was not domiciled in this state any time prior to the commencement of this action or before its trial. The complaint alleges that the plaintiff now is and has been for more than 90 days last past an actual resident and inhabitant of this state, and that the defendant resides in New York state, at or near Worcester, in Otsego County. The answer, after admitting that the defendant is a resident of the State of New York, denies that the plaintiff ever resided in this state, and alleges that he is now, and for more than 20 years has been, an inhabitant and resident of the State of New York. The action was commenced on March 25, 1896, and was tried August 4, 1896. Among other findings of fact the court below found as follows: "That plaintiff and defendant, on the 7th day of December, 1863, in Otsego County, State of New York, intermarried; that plaintiff is a clerk by occupation, and since March 21, 1871, has been employed in the treasury department of the United States; that at the time of such appointment he was living in East Worcester, Otsego County, State of New York, and has been, since 1865, at his residence thereat with his wife, this defendant, and that the plaintiff ever since his appointment as clerk, as aforesaid, voted at East Worcester, Otsego County, New York, down to the year 1895, and claimed that East Worcester, New York, was his home; that his official duties were to be performed and were performed at Washington, D. C., and at the United States treasury department, and that he was in the civil service of the United States; that he was compelled to spend his time at said City of Washington, D. C. , during all his time, except one month each year which he was allowed for absence, and that during all these years, except when at East Worcester, Otsego County, N. Y., he boarded, lodged, and had his washing done at Washington, D. C.; that in October, 1895, or about that time, he left the City of Washington, and went to Worcester, Otsego County, N. Y., and from there about October 1, 1895, came to Jamestown, N. D., for the purpose of making North Dakota his home, in good faith, and that about October 5, 1895, reached Jamestown, Stutsman County, N. D., and established a domicile thereat, and since that time has had no other residence or domicile; that after establishing his domicile thereat, and after a few days, he returned to the treasury department, at Washington, D. C., aforesaid, and did not return again to Jamestown, N. D., until about July 30, 1896."
The defendant controverts the finding which declares, in effect that the plaintiff in good faith established his residence and domicile in North Dakota about October 1, 1895, and since that time has had no other residence or domicile, and by a proper exception raises the question in this court as to the sufficiency of the evidence to sustain such finding. The testimony bearing upon this question is not voluminous and is undisputed. It appears that the plaintiff was very seriously wounded at the battle of Gettysburg, and that by reason thereof, through the intervention of friends, a position was secured for him, in 1871, in the treasury department at Washington, and that he has held that position continuously ever since his appointment. Each year the plaintiff is granted a leave of absence for the period of 30 days, and no longer, and during which it has been his habit to spend his time in Otsego County, N. Y., and plaintiff has voted there up to the time when he claims to have changed his residence from New York to North Dakota. Plaintiff's relatives live in New York, and there he was born and lived and owned a residence after his marriage. None of his kindred are shown to have ever lived in this state. He left Washington about October 1, 1895, and visited relatives in Otsego County for a day or two, and then informed his relatives that he was coming to North Dakota to "procure a divorce," and also said "he was going to Jamestown, N. D., to take up his residence." Plaintiff arrived in Jamestown, N. D., in the early part of October, 1895, and remained there about seven days, stopping at an hotel. He then left for Washington, and remained in that city in his said employment...
To continue reading
Request your trial