Torlonia v. Torlonia

• Decision Date: 27 July 1928
• Citation: 142 A. 843,108 Conn. 292
• Court: Connecticut Supreme Court
• Parties: TORLONIA v. TORLONIA.

142 A. 843

108 Conn. 292

TORLONIA v. TORLONIA.

Supreme Court of Errors of Connecticut.

July 27, 1928

Appeal from Superior Court, Fairfield County; John Richards Booth Judge.

Action by Elsie Moore Torlonia against Marino Torlonia for divorce on the ground of adultery, brought to the superior court in Fairfield county and tried to the court. Judgment for plaintiff, and defendant appeals. No error.

Arthur M. Marsh and Philo C. Calhoun, both of Bridgeport, for appellant.

William H. Comley, of Bridgeport, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HINMAN, JENNINGS, and YEOMANS, JJ.

HINMAN, J.

The fact that numerous corrections of the finding are sought by the appellant has occasioned a thorough examination of the evidence, all of which was introduced by the plaintiff, with the exception of certain exhibits pertaining principally to plaintiff's passport and naturalization. The finding is susceptible to amendment as to a few minor details and certain statements from the draft finding as to similar details are properly to be added, but, as such changes do not deprive of essential support the ultimate facts as found by the trial court, no desirable purpose would be served by setting forth such corrections, except as certain of them are hereinafter mentioned.

At the time of the marriage of the parties, August 15, 1907, the plaintiff, then 19 years of age, and her parents were domiciled in Greenwich; the defendant was, and ever since has been, an Italian subject, domiciled in Rome. Immediately following the marriage, the plaintiff went with her husband to Rome and resided there until 1925. They occupied a building known as the Palace Torlonia which is owned by an Italian corporation known as the Elsie Moore-Marino Torlonia Corporation, in which the plaintiff and her three children have substantially the entire beneficial interest. The house was three stories in height, and contained one or more separate apartments on each floor. The defendant had the life use of an apartment therein.

In May, 1925, the plaintiff was led to believe that the defendant was unduly intimate with one Maria Lorenzoni. After an investigation, she informed her husband of the facts which had come to her knowledge, and he admitted the existence of such relations. On one occasion, when the plaintiff was discussing the matter with the defendant, the latter became angry and struck her with a piece of wood, painfully injuring her. She refused to continue longer the relation of husband and wife with the defendant, has never since cohabited with him, and in July 1925, came to the United States with her three minor children, and remained at Greenwich until October. For the purpose of this trip, the plaintiff procured from the Italian government a passport of the type known as a nonimmigrant visitor's passport, which by its terms is issued to Italian citizens to permit their entry as visitors into foreign countries for a period of one year from the date thereof. The passport bore the visa of the American counsel in Italy for the purpose of a temporary visit by the plaintiff. When she then came to the United States, she had formed no definite plan as to the future.

In October, 1925, the plaintiff returned to Rome with her brother, who discussed the situation with the defendant. All efforts for a reconciliation having failed, a separation agreement was entered into by the plaintiff and defendant which agreement, in accordance with the law and custom of Italy, was, on or about November 21, 1925, submitted to a court known as the Civil Tribunal of Rome, and, after the President of the Tribunal had heard the husband and wife separately and unavailingly attempted to bring about a reconciliation, was approved on January 20, 1926. This agreement provided that the parties should live separate, the husband, therein referred to as the Duke, to have the use, as his dwelling, of a designated apartment in the Torlonia Palace, and to leave the entire apartment on the second floor free to the plaintiff, referred to as the Duchess. The latter agreed to pay, monthly, for the Duke's support the sum of 5,000 lire, also to pay him 10,000 lire for his expenses in setting himself up in the separate apartment. Provision was made regarding the maintenance and education of the children, at the expense of the Duchess, and the agreement contained, among further provisions, one that the Duchess would return (to Rome) together with the children, during the ensuing month of January.

On December 7, 1925, the plaintiff left Italy to return to the United States, and arrived about December 24th, entering under the same passport as in July, although she informed the immigration officers at New York that she intended to remain permanently in the United States. The trial court finds that when the plaintiff left Italy she did so intending to abandon her domicile in Rome and to reside permanently in Greenwich, Conn. Upon her arrival in this country, she rejoined her children at her mother's home in Greenwich, and the court finds " from that time to the present has permanently and continuously resided at Greenwich, with the intention of making it her permanent home and to constitute the same the place of her domicile." The validity of this finding is not affected by the fact that she made brief and temporary sojourns in the south in winter, and in the west and in Maine in summer, and, upon the evidence, it must stand. Morehouse v. Morehouse, 70 Conn. 420, 426, 39 A. 516.

The appellant further contends that, as a matter of law, the plaintiff cannot have a domicile independent of or other than that of her husband. The finding states that under the law of Italy the husband is entitled to the control of the wife to the extent that she must follow him wherever he chooses to establish his residence, except as such control may be modified or affected by a decree of an Italian court of competent jurisdiction.

In England, the rule is that the domicile of the husband is the legal domicile of the wife, and there appears to be no exception thereto by which the wife, during coverture, can acquire a separate domicile for herself. Warrender v. Warrender, 9 Bligh N. S. 89, 5 Eng. Rep. (Reprint) 1227; note, Ann.Cas. 1912D, p. 400. In a few early American cases, the English rule was applied in its full rigor, but subsequently numerous exceptions have been recognized. Among these, one now of practically unanimous acceptance in the United States is that a wife may acquire another and separate domicile from that of her husband, giving jurisdiction for proceedings for divorce, where the theoretical unity of husband and wife has been dissolved, as where the husband has given cause for divorce, or there is a separation of the parties by agreement, or where cruel treatment or other similar misconduct on the part of the husband has produced a permanent separation. 2 Bishop, Marriage, Divorce and Separation, § 127; 9 R. C. L. p. 545; 19 Corpus Juris, p. 31; Goodrich on Conflict of Laws (1927) 46.

The reason underlying this relaxation of the general doctrine is stated by Justice Holmes in Williamson v. Osenton (1914) 232 U.S. 619, 625, 34 S.Ct. 442, 443, 58 L.Ed. 758, 762, as follows:

" The only reason that could be offered for not recognizing the fact of the plaintiff's actual change [of domicile], if justified, is the now vanishing fiction of identity of person. But, if that fiction does not prevail over the fact in the relation for which the fiction was created, there is no reason in the world why it should be given effect in any other. However it may be in England, that in this country a wife in the plaintiff's circumstances may get a different domicile from that of her husband for purposes of divorce is not disputed and is not open to dispute."

See, also, Cheever v. Wilson, 9 Wall. (76 U. S.) 108, 123, 19 L.Ed. 604.

In Harteau v. Harteau (1833) 14 Pick. (Mass.) 181, 185, 25 Am.Dec. 372, note, Chief Justice Shaw, speaking of the maxim that the domicile of the husband was the domicile of the wife, said:

" It is probably a juster view to consider that the maxim is founded upon the theoretic identity of person, and of interest, between husband and wife, as established by law, and the presumption, that, from the nature of that relation, the home of the one is that of the other, and intended to promote, strengthen, and secure their interests in this relation, as it ordinarily exists, where union and harmony prevail. But the law will recognize a wife, as having a separate existence, and separate interests, and separate rights, in those cases where the express object of all proceedings is to show, that the relation itself ought to be dissolved, or so modified as to establish separate interests, and especially a separate domicile and home. * * * Otherwise the parties in this respect would stand upon very unequal grounds; it being in the power of the husband to change his domicile at will, but not in that of the wife."

In Ditson v. Ditson, 4 R.I. 87, 107, it is pointed out that, when a husband is guilty of such dereliction of duty in the marriage relation as entitles his wife to have that relation dissolved, she not only may establish a domicile in a different jurisdiction, but frequently necessity may compel her to do so, according to the residence of her family or friends. " Under such circumstances she gains, and is entitled to gain, for the purposes of jurisdiction, a domicile of her own, and especially, if a native of the state to which she flees for refuge, is, upon familiar principles readily redintegrated in her old domicile." The modern federal and state cases disclose striking and decisive unanimity in recognition of this exception. See 19 Corpus Juris, p. 31, note 1; 19 R. C. L. p....