Tower v. Tower
| Decision Date | 07 January 1958 |
| Docket Number | No. 841,841 |
| Citation | 120 Vt. 213,138 A.2d 602 |
| Court | Vermont Supreme Court |
| Parties | Kathleen M. TOWER v. Arthur F. TOWER. |
Black, Plante & Ellison, White River Jct., for plaintiff.
Wilson & Keyser, Chelsea, for defendant.
Before CLEARY, ADAMS, HULBURD and HOLDEN, JJ., and SHANGRAW, Superior judge.
This is a libel for divorce with a prayer for alimony and suit money. It was amended into a divorce from bed and board. Both parties appeared with their respective attorneys and testified. The court made and filed findings of fact. The libelee then filed a motion to dismiss for want of jurisdiction on the ground that the libelant on the findings of fact had not established her residence in Vermont and did not reside therein for a period of six months or more next preceding the date of bringing the libel and did not reside in this state one year next preceding the date of final hearing as required by V.S. 47, § 3214.
The court made and entered a decretal order granting the motion and dismissed the libel for want of jurisdiction because the residence of the libelant within the state had not been proved as required by statute. The case is here on exceptions of the libelant to the decretal order, to certain findings of fact and to the failure of the court to make certain requested findings.
The findings to which no exceptions were taken show the following material facts: The libelee and libelant were married in Paris, France, on October 14, 1930 and two children were born of the marriage, both of whom are over 21 years of age. The libelee was employed by the State Department of the United States for many years and was so employed in 1949. The parties lived together as husband and wife until January 1949, at which time they were living in Washington, D. C. Differences arose between them then and previously over financial matters. They have not lived together as husband and wife since that date and have lived separate and apart from each other since then. In june, 1950, the libelee left the U. S. on an assignment by the State Department to Vienna, Austria, and this assignment was conditioned upon the libelant not being with the libelee at that post. The libelee was in Vienna one year and then returned to the United States, retired upon an annual pension of $4,580 and lived in New Rochelle, N. Y. for several months.
The libelee bought a place in Thetford, Vermont in 1951 and after September 25, 1952 began to 'winterize' the dwelling for year round use and by November 11, 1952 he was living in Thetford, more or less continuously, except for an absence of from five to six weeks commencing in December 1952, when he was traveling in Canada. He acknowledged by his own testimony that Thetford was his residence early in 1953. When the parties separated in 1950, they owned three houses in Washington, D. C. and the libelee released any interest that he had therein to the libelant and she has worked and supported herself since the parties separated. The libelant, since July, 1952, has been engaged as a licensed real estate salesman in Maryland and the District of Columbia. She owns a three apartment house in Washington and a single residence in Maryland.
The libelee herein instituted divorce proceedings against the libelant herein in the First Civil Court of Bravos District in the State of Chihuahua, Republic of Mexico, on October 20, 1952. Previous to filing the petition he signed the official register of residents of the City of Chihuahua. He was issued a decree of divorce effective December 5, 1952 by the court in Mexico in which he instituted the divorce proceedings. He attempted to have the libelant herein sign a power of attorney to show consent to the divorce proceedings in Mexico. She never consented to the jurisdiction of the Mexican Court or the employment of any attorney to act for her in those proceedings and there was no evidence of any valid service of the process on her, but she had actual notice of the pendency of the proceedings. The libelee herein went to Mexico for one day only in 1952 with the sole purpose of initiating the proceedings for the Mexican divorce and returning immediately to the U. S. He has spent only one day in Mexico since 1934. There has been no divorce granted or issued to either of the parties other than the one issued in Mexico effective December 5, 1952.
After going to Vienna in June, 1950, the libelee became acquainted with Irmgard M. Tower. She came to Montreal, Canada, in August, 1951 and to the United States on March 4, 1953.
The libelant excepted to finding 51 which reads as follows: 'That on March 14, 1953, the libelee went through a ceremony of marriage with said Irmgard M. Tower at Union Village, Vermont before Rev. Bigelow and that there have been two children born to them, on January 6, 1954, and on April 18, 1955, respectively.' The ground of the exception is that the ceremony of marriage referred to therein was illegal and took place at a time when the libelee was still legally married to the libelant and that the two children referred to in the finding are illegitimate children of the libelee and Irmgard M. Tower. The finding is factually correct and in accordance with the evidence. The libelant claims in her brief that the finding was incomplete and therefore not in accordance with the evidence as the purported Mexican divorce was no divorce at all and the finding should have stated that the attempted marriage referred to was void, the children illegitimate, the parties guilty of adultery and the libelee also guilty of bigamy. Whether or not the Mexican divorce was void was a question of law as were all the conclusions that the libelee claims were lacking in the finding. The court stated the facts. The conclusions of law to be derived therefrom were not necessary as an addition to the finding. The exception is not sustained.
The libelee excepted to finding 12. This finding states in part: 'That on August 27, 1952, after several months' negotiations, a separation agreement, in writing, was voluntarily entered into by the parties. Libelee's Exhibit B. which is set forth in words and figures as follows:' Then the agreement is set forth in its entirety in the finding. The agreement sets forth that the parties are living apart and divers disputes and unhappy differences have arisen between them as a result of which it is impossible for them to live happily together and the parties desire to enter into articles of separation for the purpose of confirming their separation and making certain arrangements in connection therewith. Then follows their mutual agreements contained in eight paragraphs, so numbered. We quote No. 1: 'That it shall be lawful for each of the said parties at all times to live and continue to live separate and apart from the other and to reside from time to time at such place or places and with such person or persons as either such party may see fit, free from any control, restraint or interference, directly or indirectly, by the other and in all respects as if such party were sole and unmarried.'
The following paragraphs pertain to the contracting of debts by the wife; division of household furniture, effects and silver; the wife assuming the care, support, maintenance and education of the two children to continue through the remaining two years of their college; the husband turning over to the wife the proceeds and full cash value of two United States Government endowment policies, the payment to be used for the support and education of the children and the keeping in force by the husband of two life insurance policies of $5,000 each with the wife as single and sole beneficiary.
The agreement was acknowledged by the husband to be his free act and deed before a notary public in the state of Vermont on August 27, 1952 and acknowledged by the wife to be her free act and deed before a notary public in the District of Columbia on September 3, 1952.
Finding 13, to which no exception was taken, states: 'That at the time the separation agreement was signed by the wife, she owned a place at 2328 Ashland Place, N.W., Washington, D. C., and had her home at that address.'
Referring to the exception to finding 12, it is to that part of the finding that we quoted, 'after several months' negotiations, a separation agreement, in writing, was voluntarily entered into by the parties.' The ground of the exception is that there is no evidence to support such a finding and on the further ground that the court in finding 3l found that the libelant was told at the time she signed the agreement that the only way she would get the money set aside for the education of the children was to sign the agreement.
The libelant in her brief urges that when she signed the agreement her act was not voluntary. To sustain that claim, she quotes testimony of the libelant, the substance of which is that she signed it because the libelee's lawyer told her that was the only way she would get the money that the parties had set aside for their sons' education. That testimony is apparently the basis for finding 36 referred to in the libelant's exception to finding 12. The libelee in his brief quotes his testimony where he denied using any influence or pressure upon the libelant in regard to signing the agreement and that she never found any fault with it but has exacted every provision of it. It also appears by the agreement itself that when the libelant signed it in Washington, D. C., that she acknowledged it to be her free act and deed. It also appears from other findings that the parties in January, 1949, and previously, had differences over financial matters and that they had lived separate and apart from each other since that date and had not lived together as husband and wife since then. In addition to finding 13 that we have quoted it appears from other findings that in 1950 the parties owned three houses in Washington, D. C. and that the libelee at that...
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