Watkins v. Watkins

• Decision Date: 05 May 1883
• Parties: Frank C. Watkins v. Clara E. Watkins
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 83

Frank C. Watkins v. Clara E. Watkins

Supreme Court of Massachusetts

May 5, 1883

Argued October 5, 1882

Worcester, Libel for divorce from the bond of matrimony, on the ground of adultery, filed November 12, 1881. Hearing before C. Allen J., who reported for the consideration of the full court the following case:

On August 10, 1881, the libellee filed in this county a libel for divorce against the present libellant, describing him as of parts unknown; he entered an appearance, and both cases were pending together. She did not appear to prosecute her libel or to defend against his, and an appearance which had been entered for her was withdrawn; and a nonsuit was entered in her case, and subsequently her libel was dismissed for want of prosecution.

The parties were married at Fitchburg, in this county, where the libellee's present residence is, and they lived together as husband and wife at Fitchburg and at North Scituate, in this Commonwealth. The libellant afterwards removed to Walpole, New Hampshire, where he still resides; and the adultery in this Commonwealth was proved.

If the court had jurisdiction of his libel, a decree of divorce was to be entered in his favor, on the ground of adultery otherwise, the libel was to be dismissed.

Divorce nisi decreed.

G. A Torrey, for the libellant.

No counsel appeared for the libellee.

Devens, J. C. Allen Colburn & Holmes, JJ., absent.

OPINION

Devens, J.

Without determining whether any difference should be made, in the decision of the case before us, bye reason of the fact that the original libel was brought by the present libellee, which has been dismissed for want of prosecution, and that the present was primarily a cross libel, we proceed to consider whether, when both parties resided here together when the cause of divorce occurred, that occurring here, a husband who has become a resident of another State may maintain a libel for such cause against the wife, who has continued to reside here.

The only statutory provisions in regard to residence of the libellant as affecting jurisdiction are found in the Pub. Sts. c. 146, §§ 4, 5. These are in substance that no divorce is to be decreed if the parties have never lived together as husband and wife in this Commonwealth, nor for any cause occurring in another State or country, unless the parties had lived as husband and wife in this Commonwealth, and one of them lived here at the time the cause occurred, except that where the libellant has resided in this Commonwealth for five years next preceding the libel, or three years, if the parties had been inhabitants of the Commonwealth at the time of their marriage, a divorce may be decreed for any cause allowed by law, whether it occurred in the Commonwealth or elsewhere, unless it appears that the libellant has removed into the Commonwealth for the purpose of obtaining a divorce.

In regard to a case like the present, there are no statutory provisions that require any length of residence in this Commonwealth on the part of the libellant, or indeed that he shall be a resident thereof. If the petition cannot be entertained, it must be from general reasons of policy, or because express statutory authority is necessary for our jurisdiction.

It is a general proposition that marriage is a question of status, and that the status of each person is to be determined finally by the tribunals of that country where he has his domicil. Sewall v. Sewall, 122 Mass. 156. In all cases, except where the parties, or one of them, have gone into another State or country for the purpose of obtaining divorce for a cause which occurred here, or which would not be a cause of divorce here, divorces in any other State or country according to the laws thereof, by a court having jurisdiction of the cause and both the parties, are valid and effectual in this State. Pub. Sts. c. 146, § 41. While the status of two married persons is mutually dependent, (except so far as affected by those statutes which sometimes leave the guilty party in the anomalous position of a wife without a husband, or a husband without a wife,) when they are actually residing in different States, each State must determine for itself the status of both parties, so far at least as property exists, or rights are sought to be exercised therein.

It has always been deemed of importance that, as far as possible proceedings should take place where the party proceeded against resides; and our statutes have provided that, when the libellant has left the county where the parties have lived together, the adverse party still living therein, the libel shall be heard and determined in that county. Pub. Sts. c. 146, § 6. It is not of less importance, certainly, that the adjudication should if possible take place in that State where the parties resided at the time of the alleged offence, and where that was committed. As it is an alleged violation of the marital duties, as they then and there existed, it is in that State that its character should be determined. By the law of Massachusetts as it formerly existed, no divorce was to be decreed for any cause if ...