Ward v. Ward

• Decision Date: 16 October 1934
• Docket Number: No. 7941.,7941.
• Citation: 176 S.E. 708
• Parties: WARD. v. WARD.
• Court: West Virginia Supreme Court

176 S.E. 708

WARD.

v.WARD.

No. 7941.

Supreme Court of Appeals of West Virginia.

Oct. 16, 1934.

Syllabus by the Court.

No valid divorce from the bond of matrimony can be decreed, on constructive service, by the courts of a state in which neither party is domiciled; and the recital in the proceedings of the facts necessary to show jurisdiction may be contradicted.

Appeal from Circuit Court, Randolph County.

Suit by Inez Bell Ward against Bayard G. Ward. From an adverse decree, the plaintiff appeals.

Decree reversed and cause remanded with directions.

Joseph J. Madden, of Elkins, for appellant.

LITZ, Judge.

This is a suit for a limited divorce (on the ground of cruelty) and the custody of an infant child, the offspring of the marriage, born December 2, 1931. Defendant, Bayard G. Ward, in answer to the bill of plaintiff, Inez Ward, pleaded an absolute divorce granted to him by a Nevada court. She thereupon filed an amended bill, charging invalidity of the Nevada divorce and praying its cancellation on the ground that it had been procured by fraud, affecting the jurisdiction of the foreign court, in that the defendant was never a domiciled resident or citizen of the state of Nevada.

The parties were intermarried October 30. 1928, and lived together as husband and wile in Randolph county, W. Va., until August 24, 1931. Defendant went to Reno, Nev., October 27, 1931. The Nevada suit was instituted by him December 9th, and this suit by her December 14, 1931. She was personally served in this state with process from the Nevada court on the 16th day of the same month. He returned to this state soon after the granting of the divorce on January 15, 1932.

The trial chancellor, in a written opinion, apparently adopts the firmly established rule that a divorce obtained in a state where neither party is domiciled is not entitled to the protection of the full faith and credit clause of the Federal Constitution (Const. art. 4, § 1), and also finds, in accordance with the report of a commissioner in chancery to whom the cause was referred, that defendant went to Nevada "for the sole and only purpose of obtaining a divorce"; but concludes that as defendant evidently intended to remain in Nevada the period of residence (which is six weeks) required by the statute of that state for a divorce, the adjudication should be accorded full faith and credit by the courts of this state. "Two things must concur to establish domicile, -- the fact of residence, and the intention of remaining * * * an indefinite time." White v. Tennant, 31 W. Va. 790, 8 S. E. 596, 597, 13 Am. St. Rep. 896. Ward, intending to remain in Nevada for a definite time and purpose (as the evidence discloses, in accordance with the findings of the commissioner and the trial court), did not acquire a domicile in that state; and not having done so, the alleged divorce is not entitled to recognition in West Virginia. "If a divorce * * * given in a state where neither party is domiciled, whether it be that the divorcing court has been deceived as to the domicil of the parties, or whether its own municipal law permits it to divorce non-residents,...