Stevens v. Allen

• Decision Date: 22 May 1916
• Docket Number: 20763
• Citation: 139 La. 658,71 So. 936
• Court: Louisiana Supreme Court
• Parties: STEVENS v. ALLEN

71 So. 936

139 La. 658

STEVENS v. ALLEN

No. 20763

Supreme Court of Louisiana

May 22, 1916

SYLLABUS

(Syllabus by the Court.)

A youth whose domicile is in Louisiana and who is appointed cadet in the military academy at West Point, and remains in the army until his voluntary retirement, after 30 years of continuous service, does not thereby forfeit such domicile, and the wife, whom he marries in another state, has no other domicile than his, and, save for just cause, can acquire no other and is bound to follow, and live with, him withersoever he may choose to go and reside; and, in such case, where the wife without just cause, refuses to accompany the husband to the station and temporary residence to which he is assigned by his superior officers, she is guilty of 'abandonment,' within the meaning of our law, notwithstanding that she has never been within this state, and the husband, who shortly thereafter retires and establishes an actual residence in Louisiana, at the place of his original domicile, may bring suit in a court of such residence and domicile for separation a mensa et thoro, and summon the wife therein, by substituted service, to return to the matrimonial domicile so established, and such court is vested with jurisdiction in the premises, and may render judgment determining the marital status of the plaintiff, which judgment will be binding, at least, within the limits of this state, and, according to the views of this court, should be binding in other jurisdictions.

OPINION On Rehearing.

MONROE, C. J.

The trial court sustained an exception to its jurisdiction 'ratione personae and ratione materiae,' leveled at the case as presented by the petition, which case is also supported by the testimony of plaintiff's mother and the records of the War Department, and, briefly restated is as follows:

In 1882, plaintiff, being then 18 years of age and domiciled in New Orleans, was appointed cadet in the United States Military Academy at West Point from the First Congressional District of Louisiana, and entered the Academy accordingly. In 1886 he was graduated and appointed lieutenant of artillery, and he remained continuously in the service until March, 1913, when he voluntarily retired with the rank of lieutenant colonel, and, having established his actual residence in New Orleans, where he had always retained his legal domicile, he brought this suit, alleging that, in 1899, while stationed at Ft. Meyer, Va., he had been married, in Brooklyn, N. Y., to the defendant herein; that in November, 1912, being then stationed at Ft. Stevens, Or., his wife had refused, without legal cause, to accompany him thither, although he had gone to Brooklyn and there lived with her for several days, urging her so to do; and he prayed that an attorney be appointed to represent her; that she be cited, notified, and summoned, through said attorney, as provided by law, to return to the actual residence and matrimonial domicile; and that, in due course, he have judgment decreeing a separation from bed and board. The three reiterated summonses to return were accordingly issued and served upon the attorney (duly appointed curator ad hoc), after which, and upon showing that defendant had failed to comply therewith, judgment was rendered, condemning her to return, and the judgment was similarly served, from month to month, for three months, and the curator then filed the exception to jurisdiction, which, having been sustained, presents the question that we are here called on to consider.

The following propositions of law are established beyond dispute in this state and, generally speaking, in other jurisdictions, to wit:

1. With the exception below stated, a married woman has no other domicile, and can acquire no other, than that of her husband, and is bound to follow and live with him wherever he may choose to reside. Civil Code, arts. 39, 120; Chretien v. Her Husband, 5 Mart. (N. S.) 61; Dugat v. Markham, 2 La. 35; Neal v. Her Husband, 1 La.Ann. 315; Sanderson v. Ralston, 20 La.Ann. 312; Gahn v. Darby, 36 La.Ann. 70; Larquie v. His Wife, 40 La.Ann. 457, 4 So. 335; McLean v. Janin, 45 La.Ann. 664, 12 So. 747; Nicholas v. Maddox, 52 La.Ann. 1493, 27 So. 966; Birmingham v. O'Neil, 116 La. 1085, 41 So. 323; First Nat. Bank v. Hinton, 123 La. 1025, 49 So. 692; 14 Cyc. 846.

The exception arises whenever it becomes necessary and proper that the wife should acquire a separate domicile, as, when the misconduct of the husband compels her to leave him, or, when he abandons her. Champon v. Champon, 40 La.Ann. 28, 3 So. 397; Smith v. Smith, 43 La.Ann. 1140, 10 So. 248; McLean v. Janin, 45 La.Ann. 664, 12 So. 747; Succession of Benton, 106 La. 494, 31 So. 123, 59 L. R. A. 135; Wilcox v. Nixon, 115 La. 47, 38 So. 890, 112 Am. St. Rep. 266; King v. King, 122 La. 582, 47 So. 909; 14 Cyc. 818, 847.

2. Unless otherwise provided by law, the domicile of origin is retained until another is acquired. Gravillon v. Richards, 13 La. 395, 33 Am. Rep. 563; Sanderson v. Ralston, 20 La.Ann. 312; Succession of Steers, 47 La. Ann. 1551, 18 So. 503; Succession of Simmons, 109 La. 1095, 34 So. 101; Marks v. Germania Saving Bank, 110 La. 659, 34 So. 725; Ballard v. Puleston, 113 La. 239, 36 So. 951; First Nat. Bank v. Hinton, 123 La. 1024, 49 So. 692; 14 Cyc. 851.

3. Voluntary absence of two years, or the acquisition of a domicile in any other state of the Union, forfeits the domicile in this state; but domicile, once acquired, is not forfeited by absence on business of the state or of the United States. C. C. 41, 46; State v. Poydras, 9 La.Ann. 167; Walden v. Canfield, 2 Rob. 466; Kinder v. Scharff, 125 La. 594, 51 So. 654; 14 Cyc. 850.

4. The same tests are applied in establishing change of domicile from one state to another as from one parish in this state to another parish. Hyman, Lichtenstein & Co. v. Schlenker & Hirsch, 44 La.Ann. 108, 10 So. 623; Succession of Simmons, 109 La. 1097, 34 So. 101.

5. The rule that no valid personal judgment can be rendered against a nonresident merely upon constructive service has no application to proceedings in rem and is --

'moreover, limited by the inherent power which all governments must possess over the marriage relations, its formation and dissolution, as regards their own citizens. From the exception, it results that, where a court of one state, conformably to the laws of such state, or, the state through its legislative department, has acted concerning the dissolution of the marriage tie, as to a citizen of that state, such action is binding in that state, as to such citizen, and the validity of the judgment may not therein be questioned on the ground that the action of the state, in dealing with its own citizens concerning the marriage relation, was repugnant to the due process clause of the Constitution.' Haddock v. Haddock, 201 U.S. 567, 26 S.Ct. 525, 50 L.Ed. 868-869, 5 Ann. Cas. 1.

Prior to the decision thus quoted, the doctrine had been recognized that, where the courts of a state, in the exercise of the jurisdiction to determine the marital status of a citizen of such state, decreed the dissolution of the marriage tie by which he was bound, the judgment so rendered was entitled to full faith and credit in the other states and operated to dissolve the marriage as to both the parties thereto, the idea being that there could be no such thing as a husband without a wife or a wife without a husband; but, in the case cited, it was held that the jurisdiction which one state may possess quoad its own citizen does not, of itself, confer, or attract the jurisdiction to determine the marital status of the citizen of another state, and that it is only when the court has jurisdiction of both parties, that its judgment is entitled to extraterritorial recognition by virtue of the full faith and credit clause of the Constitution.

Thus, in Atherton v. Atherton, 181 U.S. 157, 21 S.Ct. 544, 45 L.Ed. 795, it appeared that the plaintiff, being a resident of New Yrok and the defendant a resident of Kentucky, they were married in New York, and went immediately to Kentucky, where they established their residence and lived for several years, during which period a child was born to them. The wife then left the husband on account of bad treatment and returned to the home of her mother in New York, and there was a contract between her husband and herself concerning the custody and maintenance of the child, which she carried with her, and concerning alimony for herself. The husband then brought suit in Kentucky for a divorce, on the ground of abandonment by the wife, and obtained judgment, and the wife, having brought suit in New York for separation from bed and board, on account of cruel and abusive treatment whilst living in Kentucky, the husband set up the judgment of divorce which he had obtained, as a bar to the action, but the New York court decided that it was inoperative and void, as to the wife, for the reason that she was not personally cited, had made no appearance, and, having ceased to be a resident of Kentucky and become a resident of New York, the Kentucky court acquired no jurisdiction over her by the substituted service authorized by the law of that state. In holding that there was error in the ruling so made, and that the judgment rendered by the Kentucky court was entitled to full faith and credit in the courts of New York, Mr. Justice Gray, as the organ of the Supreme Court, said (181 U.S. 171, 21 S.Ct. 544, 45 L.Ed. 795):

'In this case, the divorce in Kentucky was by the court of the state which had always been the undoubted domicile of the husband, and which was the only matrimonial domicile of the husband and wife. The single question to be decided is the validity of that divorce, granted after such...