Sneed v. Sneed

• Decision Date: 01 May 1912
• Docket Number: Civil 1243
• Citation: 14 Ariz. 17,123 P. 312
• Parties: J. S. SNEED, Plaintiff in Error, v. E. K. SNEED, Defendant in Error
• Court: Arizona Supreme Court

123 P. 312

14 Ariz. 17

J. S. SNEED, Plaintiff in Error, v. E. K. SNEED, Defendant in Error

Civil No. 1243

Supreme Court of Arizona

May 1, 1912

WRIT OF ERROR from the District Court of the Second Judicial District, in and for the County of Cochise. Fletcher M. Doan Judge. Reversed.

The facts are stated in the opinion.

Messrs Pickett & Pickett and Messrs. Morrow & Morrow, for Plaintiff in Error.

Mr. O Gibson, for Defendant in Error.

OPINION

ROSS, J.

This is an action for divorce based on the grounds of desertion and failure to provide. The plaintiff and defendant were intermarried in the state of Georgia in 1868. They subsequently moved to Colorado, Texas, where they lived together for thirty-one years and until December 9, 1909. There were born to them three boys and three girls. The girls are dead, but the boys are living, two of them in Arizona and one in Texas. Prior to December 9th, one of the boys who was in business in Cochise county, Arizona, wrote to an invalid brother, then in Colorado, Texas, asking him to come to Arizona and assist him in his business, and the invalid brother left Colorado, Texas, on December 9, 1909, for Arizona. His mother, the plaintiff, came with him. She and her invalid son arrived in Cochise county, Arizona, December 11, 1909. The invalid son needed the care and attention of his mother, and, as she testified, she came to Arizona to "keep house for him." Later in her testimony, in answer to a question as to her intention in coming to Arizona, she said: "I came with the intention of remaining, of making some portion of Arizona my home; but I did not know what portion."

The plaintiff and defendant owned a home in Colorado, Texas, of six or seven rooms, comfortably furnished, and with all necessary outhouses and fences, and were occupying it together with one of their sons and his wife on December 9, 1909, and had occupied it for some time prior thereto. The plaintiff left their home for Arizona without any complaint against her husband or declaration of intention to reside permanently in Arizona; but, on the contrary, her husband accompanied her to the depot, and their parting was one of good feeling, at least to all outward appearances. From that time on a desultory correspondence was carried on between them, largely concerning their property rights; but no mention was made by plaintiff of her intention to abandon the defendant or to permanently locate in Arizona, until December, 1910, or shortly before that date, when she wrote to defendant of her suit for divorce. The defendant resided at their home in Texas during this time. Under date of August 24, 1910, he wrote the plaintiff asking her to come home and bring their invalid son, suggesting that plaintiff and their son could be much more pleasantly and comfortably situated in Colorado than in Tombstone.

The evidence shows that the defendant, conformable to his station in life, supplied the ordinary comforts and necessary food and clothing for his home and its inmates during all the years up to December 9, 1909, and the plaintiff stated that the defendant "took care of her reasonably well." The defendant is a man of good habits. The plaintiff said her husband was abusive in his language to her a couple of times, and in these family quarrels she "would give it back to him," but not as "heavy as he did." For about one year prior to plaintiff's coming to Arizona the plaintiff and defendant, although living under the same roof and in their residence, by mutual consent, had not cohabited as husband and wife.

The lower court, among other things, found the facts to be: "(2) The court finds: That plaintiff came to Arizona December 11th, 1909, with the bona fide intention of making Arizona her permanent home. That pursuant to such intention she actually took up her residence on that date in Cochise county, Arizona, and ever since said date to the hearing of this suit she has continuously so resided in Cochise county and made her home with her invalid son, and kept house for him, and is now residing in this county. That for more than one year prior to plaintiff's coming to Arizona, plaintiff and defendant had not cohabited as husband and wife, but were living separate and apart, although they occupied the same residence. They had frequent quarrels and difficulties over money and property matters. . . . (3) The court finds that the allegations in plaintiff's complaint of abandonment of plaintiff by the defendant have not been sustained by the evidence." Then follows the judgment of the court dissolving the bonds of matrimony between the plaintiff and defendant.

While many errors are assigned by the plaintiff in error, but one will be considered by us. It is: "The court erred in entertaining jurisdiction of the subject matter of the suit, because the plaintiff was not a bona fide resident of Arizona at the time this suit was filed, but having without just cause deserted her husband, whose domicile was in Texas, her domicile was in the state of Texas."

Paragraph 3114 of the Revised Statutes of Arizona of 1901, provides: "No suit for divorce from the bonds of matrimony shall be maintained in the courts unless the plaintiff shall, at the time of filing his or her complaint, have been an actual bona fide resident of the territory for one year and shall have resided in the county where the suit is filed six months next preceding the filing of the suit." The question as to whether the plaintiff had acquired at the time of filing her suit the requisite and sufficient residence under our laws to entitle her to maintain her action is squarely before us for our decision. Ordinarily an appellate court will not disturb, but will adopt, the findings of the trial court where there is a conflict in the evidence. The rule is otherwise where there is a substantial failure of the evidence to support the findings. Miller v. Miller, 7 Ariz. 316, 64 P. 415.

In this case there is no material dispute as to the facts in evidence bearing upon the question of the residence of plaintiff, and it is the legal effect of those facts and circumstances that we are to ascertain. The expression "actual bona fide" resident, as used in paragraph 3114, supra, is very much the same language as that used in the statutes of other states concerning divorce, and we are therefore not without a construction of the expression by the highest courts of such states. In Hamill v. Talbot, 81 Mo.App. 215, the court said: "The statutory terms 'resident or residence,' as used in divorce statutes, contemplate, we think, an actual residence with substantially the same attributes as are intended when the term 'domicile' is used. They do not mean the place where the defendant in fact resides for the time being. They mean a residence of a permanent and fixed character, a domicile"; citing Bishop on Marriage and Divorce, sec. 109; Pate v. Pate, 6 Mo.App. 49, and a number of cases from other states.

In Hendricks v....