State v. Cooke

• Citation: 110 Conn. 348,148 A. 385
• Court: Supreme Court of Connecticut
• Decision Date: 06 January 1930
• Parties: STATE v. COOKE.

148 A. 385

110 Conn. 348

STATE v. COOKE.

Supreme Court of Errors of Connecticut.

January 6, 1930

Appeal from Superior Court, Hartford County; Isaac Wolfe, Judge.

Alfred E. Cooke was convicted of neglect and refusal to support his wife and child, and he appeals. No error.

Wheeler, C.J., dissenting.

Reuben Taylor, of Hartford, for appellant.

Donald Gaffney, of New Britain, and Hugh M. Alcorn, State's Atty., and Harold E. Mitchell, both of Hartford, for the State.

HAINES, J.

The accused and Madeline Marie Cooke were married in Hartford February 27, 1923, and took up their residence with the mother of the accused on Wethersfield avenue. The only child a son, was born September 15, 1925, and he is now with his mother. Marital difficulties arose the latter part of 1926 and on January 4, 1927, the accused was summoned by the probation officer for the city court of Hartford to appear before him in response to a complaint made to that official by the wife with regard to these marital difficulties. At that conference the accused was told by the probation officer that his wife might live separate from him, and in lieu of a court order, the accused and the wife entered into an agreement by which the former was to pay the wife $12 per week for the support of herself and child. The accused thereupon returned to his mother's home and the wife went to the home of her parents, and the accused made the payments of $12 per week regularly, through the probation office, until December 27, 1928. He was employed in one of the insurance companies in Hartford at a salary of $1,800 per year and had an account in a bank in that city. In July, 1928, having first secured a leave of absence from his employer for a period of four months, the accused went to Reno, Nev., arriving there on or about July 26, 1928, taking a room with a private family, where he remained during his stay in Reno. He took part in no social, political, or church activities during his stay in Reno, and had no bank account there or any property except his personal clothing and cash which he took with him. He received no mail while there and left no directions for forwarding mail from Hartford. During his stay he traveled about, sometimes crossing the state line, but always returning to his room at night upon information from his landlady that this return was necessary in order to give the court in Nevada jurisdiction. On November 5, 1928, the accused filed an action for a divorce and the wife in Hartford was served with a summons, but did not appear to defend it, being without funds. On December 22, 1928, the Second judicial court for the county of Washoe, Nev., entered a decree in favor of the accused for an absolute divorce from his wife on the ground of extreme cruelty and desertion. Almost at once, the accused left Reno for Hartford, arriving December 26, 1928, resuming his employment with the insurance company and his residence with his mother, and payments to the wife were discontinued after December 27, 1928. The foregoing facts were found by the trial court, and the conclusion reached that in going to Reno the accused had no intention of giving up his domicile and residence in Hartford, but that he went with the specific purpose of more readily and speedily securing a divorce from his wife, that at all times during his absence it was his intention to return to Hartford immediately upon securing a divorce, and that his residence in Reno was colorable merely. The trial court held on the foregoing facts that the stay of the accused in Reno, conferred no jurisdiction upon the court in Nevada to grant a divorce having extraterritorial validity, and that the claimed decree was not a valid defense to a prosecution for nonsupport in this state. The accused was found guilty and judgment was entered accordingly.

The accused has brought to this court the entire evidence in the case, and asks numerous changes in the finding. He contends that the evidence does not support these findings of the court as to his purpose in going to Reno, or the conclusion that his residence in Reno was merely colorable. Upon the trial the accused testified that he went to Reno for his health with the intention of abandoning his domicile in Connecticut, and not with the sole intention of obtaining a divorce, and that he intended to live there permanently. The trial court decided that this testimony was untrue, and in reading the transcript of evidence with care, we cannot say that this conclusion was other than a reasonable one. None of the requested changes in the finding of the subordinate facts could affect this result. The vital character of this conclusion in its bearing upon this case is at once obvious. The extraterritorial validity of the Nevada decree, and hence its sufficiency as a defense in this action, is dependent upon the good faith of the accused in taking up his residence in that state. If that residence was colorable only, the foundation of jurisdiction for all extraterritorial purposes was gone, and so far as our own state is concerned, the marital status was not dissolved by the Nevada decree. Had the residence been actual and bona fide, that decree would have been recognized by the courts of this state as a matter of comity under the full faith and credit clause of the Constitution of the United States, since no facts which justify an exception to this rule are presented by this case. Cristilly v. Warner, 87 Conn. 461, 463, 88 A. 711, 51 L.R.A. (N. S.) 415; Vanbuskirk v. Hartford Fire Ins. Co., 14 Conn. 583, 592.

That the accused may have gone to Reno for the purpose of availing himself of the divorce laws of that jurisdiction, while a pertinent fact bearing upon the good faith of his residence there, is not in itself conclusive, since it is the right of any citizen to so avail himself of the laws of another state by becoming a bona fide resident thereof. Gregory v. Gregory, 76 Me. 535, 539; Colburn v. Colburn, 70 Mich. 647, 649, 38 N.W. 607; Fosdick v. Fosdick, 15 R.I. 130, 23 A. 140.

On the other hand, the residence could not be bona fide if he did not actually from Connecticut go to Nevada with the fixed intention of remaining there. Albee v. Albee, 141 Ill. 550, 563, 31 N.E. 153.

Since we must accept the finding of the trial court that the residence in Nevada was colorable only, it follows that the court of that state was without jurisdiction, extraterritorially, and so far as this state is concerned, its judgment was a mere nullity. Haddock v. Haddock, 201 U.S. 562, 610, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1; Thompson v. Whitman, 18 Wall. (85 U. S.) 457, 469, 21 L.Ed. 897; Gildersleeve v. Gildersleeve, 88 Conn. 689, 693, 92 A. 684, Ann.Cas. 1916D, 920.

The only other defense made to the present action was the claim that the wife deserted the accused, and certain changes in the finding are requested in support of this claim. The trial court found that the accused and his wife mutually agreed in the presence of the probation officer that the accused would pay $12 per week for the support of the wife and child on the understanding that she was to live with her parents and he with his mother. The finding is directly supported by the testimony of the probation officer and by that of the wife, and there is no ground upon which we can set it aside. It was the right of the trial court to refuse to accept the testimony of the accused in so far as it conflicted with this conclusion, and the additions which the accused requests, based upon his own testimony, cannot therefore be allowed.

Since both defenses failed, it is unnecessary to discuss other questions raised by the appeal, as they could not in any event change the result.

MALTBIE, HINMAN, and BANKS, JJ., concur.

WHEELER C.J. (dissenting).

It is undoubted that, if the finding of the trial court stands, the only legal conclusion which can be drawn from the facts by this...