Taylor v. Va. Mae Taylor 1945.

• Decision Date: 20 November 1945
• Docket Number: (No. 9716)
• Citation: 128 W.Va. 198
• Parties: J. M. Taylor v. Virginia Mae Taylor1945.
• Court: West Virginia Supreme Court

128 W.Va. 198

J. M. Taylor

v. Virginia Mae Taylor1945.

(No. 9716)

Supreme Court of Appeals of West Virginia.

Submitted September 11, 1945.

Decided November 20, 1945

1. Domicile:

Husband and wife, who remove from their residence in this State with the intention of remaining away for an indefinite period of time and who, entertaining such intention, live together in different places outside this State, are not, while so absent, bona fide residents of this State within the meaning of Code, 48-2-8.

2. Divorce

A husband, resident of this State, who removes therefrom with the intention of remaining away for an indefinite period of time, and who lives with his wife, at different places outside this State during the greater part of a period of approximately three years, but who, after he and his wife finally separate during their residence outside this State, terminates that residence soon after the separation, quits his employment, and returns to the county of his former residence in this State and dwells there with the intention of remaining indefinitely, is a bona fide resident of this State and may, under Code, 48-2-8(a), maintain a suit for divorce against his non-resident wife in the circuit court of the county in which he is residing in this State at the commencement of such suit.

3. Divorce

In a divorce suit the finding of fact of a trial chancellor based on conflicting evidence will not be disturbed on appeal unless it is clearly wrong or against the preponderance of the evidence.

4. Divorce

A non-resident defendant may file a cross bill and obtain a decree of divorce thereon from a plaintiff, who is a bona fide resident of this State, in a suit instituted by such resident under Code, 48-2-8 (a); and such defendant is not deprived of the right to relief by the dismissal, on motion of the plaintiff, of the bill of complaint.

Appeal from Circuit Court, Mercer County.

Suit for divorce by J. M. Taylor against Virginia Mae Taylor, who filed a cross-bill for divorce. Decree for defendant, and plaintiff appeals.

Affirmed.

Lovins, President, and Kenna, Judge, dissenting.

E. L. Phillips and Burton & Smith, for appellant.

Haymond, Judge:

The challenge of the plaintiff, the appellant, to the jurisdiction of the Circuit Court of Mercer County to entertain this suit for divorce, instituted by him in that court, against his wife, defendant and appellee, on March 6, 1944, presents for decision the principal question on this appeal. Plaintiff seeks a divorce on the ground of adultery. The answer and cross-bill of the defendant charge plaintiff with habitual drunkenness and cruel or inhuman treatment. By final decree entered in the case on January 3, 1945, the Circuit Court overruled the motion of the plaintiff to dismiss the answer and cross bill of the defendant, and, on the evidence introduced by the defendant and her witnesses, the plaintiff offering no evidence at the hearing on the merits, granted the defendant a divorce from the plaintiff, awarded the custody of the six year old son of the parties to the wife, and required the plaintiff to pay $28.00 per month for the support of the child and an additional fee of $50.00 to defendant's attorney. The plaintiff attacks the decree on the sole but vigorously asserted ground that the trial court was without jurisdiction to enter any judgment in the case except an order of dismissal. No brief in behalf of defendant has been filed in this Court.

Plaintiff and defendant, while residents of Mercer County, West Virginia, where they had lived for several years previously, were married at Narrows, in Giles County, Virginia, November 6, 1937. They immediately returned to Mercer County where they lived together until the latter part of December, 1940, or the early part of January, 1941, when they moved to the City of Washington, District of Columbia, taking with them, their small child, now six years old, and all their furniture and personal effects. The testimony is conflicting as to their intention to return, the plaintiff maintaining that they did not, the defendant that they did, intend to return to Mercer County after the termination of their stay in Washington. Regardless of the testimony of each of the parties on this vital point, it is clear, from their conduct and the circumstances during the time they spent there, that they intended to remain in Washington indefinitely. While living in that city he worked at various occupations, including some time as a carpenter in the employ of the Federal Government, and she, at first, devoted her time to her household duties and later also became a Federal employee. During their stay in Washington he made several short trips to other localities in search of new employment, from which, however, he always returned to their home in that city. After a time differences arose between them which led to a temporary separation in the summer of 1943. A reconciliation was effected about the last of December, 1943, at which time he moved from Washington to the Town of Tazewell, in Tazewell County, Virginia, and obtained employment as a coal miner at Bishop in that county. At Tazewell he rented a four room furnished cottage and there he took his tools and his personal belongings, with the intention of remaining while he held his new employment. She left Washington accompanied by the child and went to live with the plaintiff at his new place of residence some time between December 27, 1943, and January 3, 1944. On January 5, 1944, he sustained a broken leg which prevented him from continuing his work at the mine. While he was confined to his home because of this injury a bitter quarrel arose between them on or about January 28, 1944, and she left him and the child and returned to Washington. They have not since lived together or cohabited.

Following this final separation, and in the early part of February, 1944, he returned to Mercer County, West Virginia, bringing the child with him. It is established that when they left Tazewell County, neither of the parties had any intention of returning, and neither of them ever did return, to that place. She continued to stay in Washington and was living there when the suit was instituted, the case heard and the final decree of January 3, 1945, entered. After living with his sister in Mercer County from the early part of February, 1944, until about thirty days after the filing of his bill of complaint on March 6, 1944, the plaintiff returned to Washington where he was residing at the time of the entering of the final decree.

There is some evidence, which is not very clear, that the plaintiff continued to own an interest in real estate in Mercer County after he first moved to Washington. The plaintiff voted by an absent voter's ballot, transmitted by mail, at the general election in Mercer County in 1944, while he was staying in Washington, and he has never tried to vote at any place other than in Mercer County. The defendant has never exercised her right to vote. The plaintiff told his counsel when this suit was instituted that he was a resident of Mercer County, West Virginia, and his sworn bill of complaint contains an allegation to that effect. At the hearing upon his motion to dismiss this suit, he repeatedly testified that he was not, and had not been, a resident of Mercer County since he first moved to Washington; but he did say, on cross-examination, that he had no other residence than Mercer County at the time he brought this suit. In her sworn answer, in which she seeks a divorce on the grounds of habitual drunkenness and cruel or inhuman treatment upon the part of the plaintiff, the defendant says that the plaintiff is a resident of Mercer County, West Virginia, denies that she is a non-resident of West Virginia, and, though admitting that she is working in Washington, claims her residence as Mercer County, West Virginia. The answer, filed in open court on March 18, 1944, was subscribed and sworn to by the defendant before a notary public of Mercer County on March 6, 1944, the same day this suit was instituted. The defendant testified that she always claimed Matoaka, Mercer County, West Virginia, as her residence and that, while she and her husband were living in different places, he never claimed any place other than Matoaka as his residence.

The acts of adultery charged in the bill of complaint against the defendant are alleged to have been performed in the District of Columbia; and it is undisputed that the acts of each party complained of by the other, and denied by each, if in fact committed, occurred outside the State of West Virginia.

In assailing the final decree of the Circuit Court as void because that court was without jurisdiction to entertain this suit, the plaintiff contends that at the time of its institution he was not a resident of Mercer County, West Virginia; that the defendant then was a non-resident of this State and was actually residing in the District of Columbia; that the cause of action arose out of this State; that this suit is one in which the defendant can not be personally served with process within this State; and that, since neither party was, or had been, for any requisite period of time, an actual bona fide resident of this State, the Circuit Court had no jurisdiction to grant the relief prayed for by either party or to enter any decree in the case except an order dismissing it.

In this State the principle is firmly established that jurisdiction of courts of equity to entertain divorce cases exists only by virtue of the statute which confers such jurisdiction. Nield v. Nield, 126 W. Va. 430, 28 S. E. 2d 825; Anderson v. Anderson, 121 W. Va. 103, 1 S. E. 2d 884; Parks v. Parks, 109 W. Va. 138, 153 S. E. 242; White v. White, 106 W. Va. 569, 146 S. E. 376. Thus it becomes necessary, in the decision of this case, to consider and apply the pertinent provisions of the statute which appear in Chapter 48 of the Code of West Virginia. After expressly conferring jurisdiction...