Sturdavant v. Sturdavant

• Decision Date: 04 November 1944
• Citation: 189 S.W.2d 410,28 Tenn.App. 273
• Parties: STURDAVANT v. STURDAVANT.
• Court: Tennessee Court of Appeals

189 S.W.2d 410

28 Tenn.App. 273

STURDAVANT v. STURDAVANT.

Court of Appeals of Tennessee, Middle Section.

November 4, 1944

Certiorari Denied by Supreme Court May 5, 1945.

Appeal from Chancery Court, Coffee County; T. L. Stewart Chancellor.

Suit by Welma Sturdavant against James F. Sturdavant to set aside a pro confesso decree granted to defendant upon his application, giving him a divorce from complainant. Decree for complainant, and defendant appeals.

Affirmed.

Warden & Warden, of Machester, for appellant.

Stewart Chattin & Templeton, of Winchester, and Harry A. Silverstein of Chicago, Ill., for appellee.

HOWELL Judge.

The original bill in this cause was filed in the Chancery Court of Coffee County, Tennessee, on July 21, 1943, and sought to set aside and vacate a decree granted to the defendant on pro confesso upon his application, giving him a divorce from the complainant on May 20, 1943, on the grounds of wilful desertion without reasonable cause for more than two full years, refusal by her to remove with him to Tennessee without reasonable cause and wilfully absenting herself from him for two years and upon the ground of cruel and inhuman treatment. The bill alleged that this decree for divorce had been fraudulently obtained and was therefore null and void. It was further alleged that at the time he filed the divorce bill, the defendant was not domiciled in the State of Tennessee, being merely stationed at Camp Forrest under orders of the United States Army, that it was untrue that she had refused to move to Tennessee with her husband, and that the charges of cruel and inhuman treatment were false.

The defendant herein filed a demurrer and also an answer in which he denied the material allegations of the bill.

The Chancellor overruled the demurrer and on final hearing entered a decree granting the relief prayed by vacating and setting aside the divorce decree granted on May 20, 1943.

The defendant has perfected an appeal from the decree of the Chancellor and has assigned as error the action of the Chancellor in overruling the demurrer and in finding the appellant guilty of fraud in obtaining the divorce and granting her the decree herein and taxing the defendant with the costs.

The facts are that complainant and the defendant were married in Chicago on September 21, 1929, and lived there until he was mustered into the United States Army as a Major in the Spring of 1941 and assigned by the Military Authorities to Camp Forrest, near Tullahoma, Tennessee, where he was stationed at the time the bills in the two cases involved herein were filed. The parties have no children. When he left Chicago they stored their furniture and she went to live with her family. In July of 1941, the defendant went to Chicago on a leave of absence from Camp Forrest and stayed with the complainant at the home of her parents for about nine days. During this time they went over into Michigan to see his family and he then returned to Camp Forrest. In January, 1941, the complainant went to Tullahoma, Tennessee, the defendant met her at the train and he not having any place for her to stay, they went to a Motor Court on the road between Manchester and Tullahoma, where he occupied a cabin with her for four days and then they moved to the Hanley Tourist Home where they occupied a room together for about three days. They then went to Nashville and spent about one week together living in a room at the Sam Davis Hotel. The defendant then went to Florence, Alabama, on some official business, and complainant went back to Chicago. The complainant again came to Tennessee in August of 1942 and the defendant met her at the train and took her to a tourist home at 428 East Lincoln Street, Tullahoma, Tennessee, where they occupied one room for about one month when she returned to Chicago. During her visits to the defendant in Tennessee, there was much conversation about money matters. The defendant had been sending complainant $60 per month for her living expenses and she wanted more. It was finally arranged that he send her $100 per month, which he did, the last payment of this amount having been made on June 8, 1943, after he had secured the divorce decree on May 20, 1943. On June 23, 1943, the defendant mailed to complainant a copy of the divorce decree. This was her first information that a bill for divorce had been filed against her.

It is true that the proceedings in the divorce case seem to be regular in every respect and the decree was granted upon a hearing on pro confesso. It is also true that the law in Tennessee at this time does not require any further effort to give a defendant actual notice of the filing of a bill for divorce than the ordinary publication. A pro confesso, however, does not admit or give the Court jurisdiction of the complainant.

It is well settled that a domicile once acquired is not lost until a new one is established. Under the facts of this case the question is whether or not the complainant was a resident of Tennessee so as to give the Chancery Court of Coffee County jurisdiction to grant a divorce. The defendant says that he intended to live in Middle Tennessee permanently. Before a new domicile and be acquired a home must be actually established with the intention to remain. No change of domicile can be effected by a mere statement of an intention not accompanied by some act in accord with this intention. There must be a concurrence of actual change of residence and the intention to abandon the old and acquire a new domicile. See Sparks v. Sparks, 114 Tenn. 666, 88 S.W. 173. The mere intention to live at a place at some future time or upon the happening of some uncertain event is not sufficient. In this cause the defendant, a Major in the United States Army and a resident of Chicago, was sent to Camp Forrest. He testified that he had an intention of living in Middle Tennessee. We do not think these facts made him a resident of Coffee County, Tennessee, so as to give the Court of that County jurisdiction to entertain a divorce bill filed by him.

In 17 American Jurisprudence in paragraphs 249 and 250, on page 279 it is said:

'An 'actual bona fide resident',

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