Action for limited divorce under section 3597, R. L. 1905, in which plaintiff had judgment, and defendant appealed from an order denying a new trial.
The facts are substantially as follows: The parties were married to each other at Omaha, in the state of Nebraska, on the 16th of May, 1894, and have since continued to be, and now are, husband and wife. They resided together as such until August 30, 1901, when a separation between them took place, induced and brought about by the wrongful conduct of defendant, the facts with reference to which will be stated presently. At the time of the marriage plaintiff was a widow with two children, and defendant a widower with two children; but no children were born of this marriage. Soon after the marriage, in the fall of 1895, the parties, together with their said children, removed to the city of Minneapolis, this state, where they took up their permanent residence. On August 30, 1901, plaintiff, contrary to
The questions presented to this court for consideration are (1) whether, in view of the facts disclosed as to plaintiff’s residence or presence in Massachusetts, she was an “actual resident” of this state at the time the action was commenced and for a year preceding, within the meaning of the statute under which the action was brought, and (2) whether the trial court’s finding of cruel and inhuman treatment, the basis of the action, is sustained by the evidence.
Upon the last question we have no doubt, within our decisions, that the ill treatment to which plaintiff was subjected, though it may not have impaired her health, fully justified the conclusion reached by the trial court. It is true there was no physical violence - inflicted upon plaintiff, nor is there any finding that defendant’s misconduct impaired her health, yet within the case of Williams v. Williams, supra, p. 400, 112 N. W. 528, his conduct in driving her from his home, compelling her to remove to Massachusetts, there to remain under threat of withdrawing all allowance for her support, coupled with other slights and acts of ill treatment leading up to her expulsion from the state, was sufficient to justify the limited divorce granted. In the Williams case, above referred to, the trial court expressly found as a fact that the misconduct of defendant (the wife) toward plaintiff, consisting of slanderous charges and insinuations of immorality, constant nagging and scolding, unaccompanied with personal violence, did not impair the health of plaintiff, yet the court granted a divorce. We sustained that conclusion. The facts in the case at bar bring it within the principle of that decision, and we follow and apply it.
The principal question in the case is that of jurisdiction. It is contended by counsel for defendant that plaintiff .was not at the time the action was commenced an “actual resident” of this state, within the meaning of the statute, and that the court, therefore, had no jurisdiction to grant the relief prayed for. The solution of this question depends upon the construction to be given the statute under which the action was brought.
Section 3597 of the statutes provides as follows: “A separation from bed and board forever, or for a limited time, may be adjudged * * * in the complaint of a married woman in the following cases: 1. Be
It may be that the legislature intended by the statute in. question to extend the right of limited divorce to married women actually residing in the state, without regard to whether they have an established domicile or permanent residence therein; or not. If so, a married woman having a legally established domicile in some other state could maintain the action if she and her husband had actually resided in the state for a year preceding the action, though their presence here was not intended to be permanent. But whether the statute should be construed to include such a case we need not determine.
We are clear that the legislature did not intend, by the use of the words “inhabitants of this state at least one year” or “actual resident at the time of filing her complaint,” to deny the relief there provided to married women having a legal residence within the state, but who might be absent temporarily when the action was commenced. It is manifest, having in view the purpose of restricting actions of this sort to actual residents, that the statute was intended for the benefit of citizens of the state, those having an established permanent domicile here, and to limit its application to those personally within its boundaries
Reasoning from this viewpoint, the conclusion logically follows that actual domicile, not mere residence, is the true test in such cases. In the case at bar it is conceded that prior to plaintiffs departure for Massachusetts the parties had a fixed and permanent home or residence in this state; and it must be further conceded, unless plaintiff’s continued presence in Massachusetts, under the circumstances disclosed, was an abandonment of her domicile in this state, that she remained, within the contemplation of law, an “actual resident” thereof, and was such when the action was commenced, notwithstanding her temporary residence in Massachusetts. Whether a departure from an established domicile in this state and a residence in some other state results in the abandonment of the same as a legal residence depends upon the circumstances surrounding each particular case. If a change of residence be for temporary purposes, and with no intention of quitting the old home, no change of domicile takes place, at least as a matter of law. It is ordinarily a question of fact, depending, as already suggested, upon the purpose and intent of the change. Plaintiff’s residence in Massachusetts was compulsory, and with no intention of abandoning her residence in this state, and within the meaning and purpose of the statute under consideration she remained an “actual resident” of Minnesota. Had she brought her action in Massachusetts, and the facts here presented, as found by the trial court, had been disclosed to the courts of that state, relief would have been denied her on the ground that her
Order affirmed.