White v. White

• Decision Date: 15 January 1929
• Docket Number: (No. C. C. 415)
• Court: West Virginia Supreme Court
• Parties: Florence B. White v. Clarence S. White

106 W.Va. 569

Florence B. White

v.Clarence S. White

(No. C. C. 415)

Supreme Court of Appeals of West Virginia.

Submitted January 9, 1929.

Decided January 15, 1929.

DIVORCE One Not Citizen Residing Within State for One Year Preceding Divorce Suit Can Not Maintain Suit, Notwithstanding Defendant's Citizenship and Residence (Code, c. 64, § 7).

Under section 7, Chapter 64, Code 1923, a person can not maintain a suit for divorce unless he or she be an actual bona fide citizen of this state and shall have resided therein for at least one year immediately preceding the bringing of the suit; and this is true, notwithstanding the fact that the defendant has been an actual bona fide citizen of the state, and has resided therein for a year or more immediately preceding the institution of the suit.

Case certified from Circuit Court, Barbour County.

Suit by Florence B. White against Clarence S. White. On certified question relative to jurisdiction of circuit court.

Reversed.

Dayton R. Stemple and D. D. Stemple, for plaintiff. Ware & Ware, for defendant.

Lively, Judge:

The question certified for review and decision is, whether a circuit court has jurisdiction of a suit for divorce by a plaintiff who is not an actual bona fide citizen of the state, and has not resided in the state for at least one year immediately preceding the institution of the suit. The circuit court took jurisdiction, holding that inasmuch as the defendant had long been a resident of the county in which the suit was brought, for more than a year, plaintiff could sue for divorce, although she had not been an actual bona fide resident of the state, and had not resided in the state for a year immediately preceding the filing of the bill. The statute, section 7, Chapter 64, Code, says: "And in no case shall a suit for divorce be maintainable unless the plaintiff be an actual bona fide citizen of this state and shall have resided in the state for at least one year immediately preceding the bringing of the suit." The bill as amended contained allegations of all facts essential to the court's jurisdiction of the suit; but defendant filed a plea under oath to the effect that plaintiff had not been a bona fide citizen of the state for more than a year next preceding the bringing of the suit, and that in February, 1927, she removed from this state to Pennsylvania where she became a resident and citizen, until August, 1927, when she returned to this state where she has since resided until the bringing of this suit at March Rules, 1928. Upon the coming in of this plea, plaintiff admitted on the record that the plea was true, thus obviating proof to sustain it; and the court held that the plea did not defeat jurisdiction, holding that the statute above quoted was not intended to apply to a case like this; and that the statute must be given a reasonable construction according to its spirit and intention thus avoiding absurd or mischievous consequences, if the strict letter of the law be followed. Lewis' Sutherland Stat. Const. (2nd ed.) Vol. 2, sees. 488 and 489; Black on Interpretation of Laws (2nd ed.) 66; and People v. City of Chicago, 38 N. E. 744, are cited to sustain the court's ruling.

The courts of equity have jurisdiction to entertain divorce cases only by reason of the statute conferring that jurisdiction. Such cases do not fall within their general equitable powers. They are governed by the statute as to jurisdictional facts, and it is well within legislative power to throw strict safeguards around judicial severance of the marriage contract, Under the interpretation of the statute, (and it is not ambiguous) the trial court has construed its intent and purpose to be what the former statute meant. Said section 7, Chapter 64, formerly read: '' No such suit shall be maintainable, unless the parties, or one of them, shall have resided in the state one year next preceding the time of the bringing of such suit." That former statute would have given jurisdiction in the case under consideration, for one of the parties here, the defendant, had been a citizen of and a resident in the state for more than one year immediately preceding the bringing of the suit. But now, the statute makes jurisdiction depend, not upon the status of defendant, but upon that of plaintiff. What purpose had the Legislature in changing the statute? It is not material to inquire, for the language of the present statute is so...