Turner v. Turner

• Decision Date: 22 August 1913
• Citation: 87 Vt. 65,88 A. 3
• Parties: TURNER v. TURNER.
• Court: Vermont Supreme Court

88 A. 3

87 Vt. 65

TURNER

v. TURNER.

Supreme Court of Vermont. Windham.

Aug. 22, 1913.

Exceptions from Windham County Court; Fred M. Butler, Judge.

Suit for divorce by Elmer W. Turner against Nina Turner. From a judgment dismissing his libel, plaintiff brings exceptions. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Joseph Carney and Herbert W. Blake, both of Gardner, Mass., for petitioner.

ROWELL, C. J. The jurisdictional question is whether the libelant was a resident of Londonderry in Windham county when he brought his libel for divorce. He did not claim residence elsewhere in that county. The case is this, according to the finding of facts: The parties were married in July, 1905, and lived together in Londonderry till some time in the summer of 1907. The libelant became suspicious of his wife, and charged her with adultery. Thereupon they broke up housekeeping, gave up the tenement in which they lived, and sent the household furniture and all his personal belongings to her mother's in Peru, in Bennington county. His charges against her being well founded, he never lived with her again, but went away from Londonderry, working at different places, sometimes in Londonderry and sometimes elsewhere. About November, 1911, he went to Gardner, Mass., to work, and took with him his personal clothing and all of his personal effects, except a few things that remained in Peru, and has lived and made it his home in Gardner ever since. He has had no home nor place in Londonderry since breaking up housekeeping in 1907, to which he had a right to return, except occasionally when he worked there temporarily; and has had neither property, nor home, nor place there to which he had a right to return since going to Gardner as stated. He testified that he never intended to change his residence from Londonderry, and corroborated his testimony in this respect to some extent.

The "findings" say that, if on the case thus made the libelant has a sufficient residence, the divorce should be granted; but the court, upon the "findings," dismissed the libel, to which the libelant excepted. He concedes in his brief that he had been working in Massachusetts about eight months next before he brought his libel, and was still working there at the time of the trial, and had no property nor fixed abode in Londonderry at the time of signing his libel; but says that he claimed below that he had no intention of remaining in Massachusetts permanently, nor of acquiring a residence there, and that the residence he had once established in Londonderry remained there permanently; but that, if his claim is unfounded in law, his libel was properly dismissed, and the court need consider the case no further, except to see whether the entry should not show that the dismissal was for failure to show residence, so that the judgment would not be a bar on the merits.

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