Walker v. Walker

• Decision Date: 24 January 1914
• Parties: WALKER v. WALKER.
• Court: Maine Supreme Court

89 A. 373

111 Me. 404

WALKER

v. WALKER.

Supreme Judicial Court of Maine.

Jan. 24, 1914.

Report from Supreme Judicial Court, Oxford County, at Law.

Action by James W. G. Walker against Nina Chinn Walker. On motion by libelee to dismiss the action, and also on demurrer to libel. Motion and demurrer overruled.'

Argued before SAVAGE, C. J., and CORNISH, KING, BIRD, HALEY, and PHILBROOK, JJ.

Symonds, Snow, Cook & Hutchinson, of Portland, for libelant Payson & Virgin and Eben Winthrop Freeman, all of Portland, for libelee.

PHILBROOK, J. This is a libel for divorce, based on alleged desertion for more than three consecutive years next prior to the filing of the libel, and for alleged cruel and abusive treatment. The libel is in the usual form, and alleges, among other things, that the parties were married at Washington in the District of Columbia, that after their marriage they cohabited as husband and wife in various states of the Union, and that they so cohabited at Kittery in our county of York, also that the libelant, at the time of bringing the libel, was a resident of Brownfield in our county of Oxford, and that he had resided in said Brownfield, in good faith, for more than one year prior to the commencement of these proceedings.

The libelee appeared specially, and filed a motion to dismiss on the ground of want of jurisdiction. A demurrer was also filed and by suggestion of the presiding justice the parties agreed that the law court might pass upon the demurrer if the motion to dismiss is not granted, it being understood that the libelee does not appear generally unless the motion to dismiss is overruled, and that if the demurrer should be overruled, then the libelee is to have the right to plead over. The case is before us on report, which report consists only of the libel, the motion to dismiss, the demurrer, and the order of court authorizing the report. No testimony is presented.

The libelee sets forth five claims in support of her motion to dismiss, but in the argument of her counsel those claims are more succinctly contained in three statements, viz.: (1) That unless the causes of divorce occurred while the marital domicile was in Maine, this court has no jurisdiction; (2) that if it does not appear that either of the parties resided in Maine when the causes occurred, this court has no jurisdiction; (3) that statutes relating to divorce should be so interpreted that the courts will recognize only those who resided here when the cause occurred, and thus enable the courts of other states to give to our decrees the full faith and credit which our courts give to others.

Our statute enumerates the causes for which a divorce may be decreed, among them being utter desertion continued for three consecutive years next prior to the filing of the libel, and cruel and abusive treatment; these causes being the ones upon which the libelant depends. But the same statute (Rev. St. c. 62, § 2) contains the limiting proviso, "that the parties were married in this state or cohabited here after marriage, or if the libelant resided here when the cause of divorce accrued, or had resided here in good faith for one year prior to the commencement of proceedings, or if the libelee is a resident of this state." Although cohabitation in this state after marriage would seem to satisfy the proviso of our statute, if the parties were actually dwelling together in some place in this state, and not temporary visitors only (Calef v. Calef, 54 Me. 365, 92 Am. Dec. 549), we are not called upon to discuss that question at this time, because counsel for the libelant distinctly stated in his argument that his client comes under the provision, "or had resided here in good faith for one year prior to the commencement of the...