Winans v. Winans
| Decision Date | 23 March 1910 |
| Citation | 91 N.E. 394,205 Mass. 388 |
| Parties | WINANS v. WINANS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C. N Barney, H. T. Lummus, and W. A. Bishop, for libelant.
This is a libel for divorce. The libelee was duly served and appeared, but was subsequently defaulted. Upon the evidence before him the presiding justice 'found and ruled that the parties never lived together as husband and wife in this commonwealth within the meaning of the statute and on that ground ordered that the libel be dismissed,' and at the request of the libelant reported the case to this court. If on the facts found by him the finding was not warranted in law, then a decree nisi on the ground of desertion is to be entered; otherwise the libel is to be dismissed.
So far as the question is one of fact the presiding justice has determined it adversely to the libelant. But the facts upon which he based his conclusion that the libel should be dismissed have all been reported by him, and the question whether he was wrong in ruling as he did becomes therefore a question of law.
The statute provides that 'a divorce shall not, except as provided in the following section, be decreed if the parties have never lived together as husband and wife in this commonwealth.' Rev. Laws, c. 152, § 4. The exception referred to is immaterial so far as this case is concerned. The libelant concedes that it must appear that the parties were domiciled in this commonwealth in order to satisfy the requirement that they shall have lived together here as husband and wife. Ross v. Ross, 103 Mass. 575; Weston v. Weston, 143 Mass. 274, 9 N.E. 557. The question then is whether the presiding justice was wrong in finding, as he must have found, that the parties were not domiciled in Massachusetts.
It is plain that the libelant never lost her domicile in this commonwealth, and we therefore need not consider further the facts in regard to her status. Was the presiding justice wrong in finding that the libelee did not acquire a domicile here? The parties were married in New York City. The domicile of the libelee before marriage, as the justice has found apparently had been in New York; and certainly, as he further found, it never had been in Massachusetts. The libelee had no business or family ties in New York and no fixed place of abode there or elsewhere, but roomed in various hotels in New York City, when not traveling with his mother, who spent her time in health resorts. He was upwards of 40 years of age and had no occupation. The remainder of such fortune as he had was involved in litigation in New York City, and he was heavily in debt there. These are all the facts found in regard to the libelee's domicile before marriage, and his condition and circumstances, and they show conclusively, it seems to us, that he had no fixed place of abode in New York City and no family or business or other ties to keep him there. His domicile, if he had one there, would seem to have been of the most unsettled character. Indeed the presiding justice goes no farther than to find that his domicile before marriage 'apparently' had been in New York, as though the matter was not free from doubt. Under such circumstances the acquisition of a new domicile or a change of domicile will be much more easily and readily inferred than when one has a fixed place of abode and a family and an established business, and associations more or less deeply rooted and permanent. A few days after the marriage the libelee and his wife came to Boston to the Hotel Touraine, where they stayed entertaining their friends and looking around for a house in which to live permanently. They examined various places in the suburbs, but made no choice. The libelee said that he liked Boston and expected to enjoy living there. After they had been in Boston less than two weeks they went to a health resort in Virginia at the request of the libelee's mother, who was ill there. Before leaving Boston the libelee requested his wife's sister, who lived in Boston, to find a suitable apartment to be occupied by himself and his wife on their return. The sister procured an apartment in Brookline, to which the greater part of the libelee's clothing, which, so far as appears, was all the personal effects that he had, was sent, and for which he and his wife started when they left Virginia on their return about a month later. On the way back from Virginia the libelee, who had expressed uneasiness about his financial affairs and a desire to see his lawyer, stopped off in New York, at his wife's suggestion, to see the lawyer. He put the libelant and her daughter by a former marriage into the train for Boston and told her he would be in Boston in two days. The libelant never saw him afterwards although he wrote expressing his intention to come. The presiding justice found, as he could not very well have helped finding, it seems to us on these facts, that the parties intended to take up their residence in this state when they came to Boston to the Hotel Touraine. He found that they did not intend to live permanently in Boston but in some suburb when a suitable place of residence could be found. He was not satisfied that the libelee had any intention of returning to this state to live with his wife when he parted from her in New York.
In order to acquire a domicile both the fact and the intent must concur. Actual residence and the intention to remain either permanently or for an indefinite time without any fixed or certain purpose to return to the former place of abode are required to constitute a change of domicile. The length of the residence is immaterial provided the other elements are present and are found to exist. A day or an hour, it has been said, will suffice for the acquisition of a domicile. Jacobs Law of Domicile, § 134, note. In this case, when the...
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