On report.
Upon a complaint for divorce to which was addressed a Motion to Dis *744 miss, alleging (a) lack of jurisdiction, and (b) improper venue, the presiding Justice “A” upon hearing on the Motion, denied the Motion by decree filed January 30, 1967 and held that the cause was in order for hearing on its merits. Later, upon such hearing on February 28, 1967 on the merits, Justice “B,” upon motion of the party aggrieved by the denial of the Motion to Dismiss, Ordered “this action” reported under Rule 72(c) M.R.C.P. supported by the record of the testimony given at the hearing on the Motion before Justice “A.”
While Rule 72(c) contemplates that the “case” is to be reported, see Maine Civil Practice § 72.6 and the pre-rule concept of “report” in Mather v. Cunningham,
This raises a question of judicial policy. In the interest of intracourt comity, without prejudice to the rights of an aggrieved party, we hold that Rule 72(c) M.R.C.P., new to our practice, is not to be interpreted as authorizing a member of the Superior Court to sponsor what is in effect an interlocutory appeal from a decision of another member of the same Court.
The situation here was open to either of two approaches. The party aggrieved by the decree o"f Justice
“A”
could have moved Justice “A” under the rule for a report of the case and if Justice “A” were of discretionary opinion that the question of jurisdiction ought to be reviewed by the Law Court, MacLean v. Jack,
We are mindful that the rule is expressed in terms of “the court” and that “it” may report an interlocutory ruling, but the pre-rule statute providing, in equity, for the “report” of a case identified such “report” with the justice before whom the “reported” issue arose, see § 24, Chapter 107 R.S. 1954 and Inhabitants of Town of .Lebanon et ais. v. Shapleigh et als.,
As between the statute and the rule simultaneously effective, the balance of the reconciliatory scales tips toward the statute, which speaks in terms of jurisdiction. Meager support is also, lent by Rule 83 M.R.C.P. which provides that the word “court” shall include “any justice.”
With this caveat, and examination of the transcribed testimony revealing that its review, if properly before us, would dispose *745 of the case, we pass to the undisputed facts.
The parties were married in St. Agatha, Maine, in 1937 and lived in the Aroostook area until 1940. During the period 1940-1947 they were in Connecticut. In 1947 they returned to Presque Isle, where they remained until they lost their home by fire, which would appear to have been in November of 1950. They went to Connecticut for the winter and in the spring of 1951 came to Dexter, Maine, where they owned, or purchased at that time, a farm, which Mr. Belanger operated and Mrs. Bel-anger worked in a laundry. Several children had come from the union.
Some time prior to August of 1964 Mr. Belanger went to Connecticut, found work, and Mrs. Belanger and the children and their household goods joined him in August of 1964 at 750 Allen Street, New Britain. The farm was “lost,” it being under foreclosure when the family went to Connecticut in the summer of 1964.
The parties separated in November of 1965, at which time Mrs. Belanger and 6 of her 9 children remained at 750 Allen Street, New Britain, Connecticut, where they continued to occupy an apartment as of the date of hearing. Mrs. Belanger began work in December 1964 at the Teachers College in New Britain, Connecticut, where she was still employed at date of hearing.
By complaint for divorce dated November 5, 1965 Mrs. Belanger alleged herself to be of New Britain, Connecticut, and her husband-defendant of 750 Allen Street, New Britain, Connecticut. Reconciliation followed.
In the present complaint for divorce dated May 6, 1966 Mrs. Belanger alleges herself to be of Dexter, Maine, and the defendant-husband of Forrestville, Connecticut.
Mrs. Belanger came to Maine on May 5, 1966, at which time she stayed with her son, signed the complaint under consideration on May 6, 1966, and returned to Connecticut on May 7, 1966. Since that time she has been in Maine for “a week, over a week” in July of 1966 and again in August for the purpose of a “hearing” at which time she remained two days.
She is receiving public aid in the State of Connecticut, she has neither motor vehicle nor voting registry in either State.
At the hearing on October 13, 1966 before Justice “A” she stated that following the hearing she was going back to her job in Connecticut. The next question was:
“Q. You don’t intend to stay in Maine do you? * * *
“A. I don’t say I never come back to Maine, because I come back to Maine, that is what we did all our life, back and forth and stay most of the time in Maine, in Maine its our place.
“Q. In May when you signed the divorce complaint, you didn’t intend to stay here, did you?
“A. At the time I didn’t, no, at the time.”
This answer poses an interesting speculation as to whether the witness said: “At the time I didn’t know, at the time,” or as it is recorded. The bearing on the issue is, however, the same.
Upon undisputed facts, the issue of accuracy of a ruling based upon them is one of law. Osteopathic Hospital of Maine v. Inhabitants of City of Portland,
Divorce and the power of the court to deal with it is statutory. Strater v. Strater,
*746 Title 19 M.R.S.A. § 691 in pertinent part provides that:
“A divorce * * * may be decreed in the county where either party resides at the commencement of proceedings” for stated causes “provided the parties were married in this State or cohabited here after marriage, or if the plaintiff resided here when the cause of divorce accrued, or had resided here in good faith for 6 months prior to the commencement of proceedings, or if the defendant is a resident of this State.”
The controversy centers in the “residence” requirement.
For a court to treat a given issue it must have jurisdiction of the subject matter, the
res
in contest,—here the marriage status, and the parties. 20 Am.Jur.2d Courts § 88, 24 Am.Jur.2d Divorce and Separation § 246. See Usen v. Usen,
“Venue, * * *, means the place where a case is to be tried, whereas jurisdiction does not refer to the place of trial, but to the power of the court to hear and determine the case.” 20 Am.Jur.2d Courts § 89.
It has been stated many times that the state, because of its policy interest in maintaining the integrity of the marriage relation, is a third party to a divorce proceeding. Dionne v. Dionne,
The word “resides,” the twelfth word, in the quote from the statute means “is domiciled,” that is, having “an abode animo manendi, a place where a person lives or has his home, to which, when absent, he intends to return and from which he has no present purpose to depart.” 24 Am. Jur.2d Divorce and Separation § 247. As stated in Gilmartin v. Emery,
“Residence, being a visible fact, is not usually in doubt. The intention to remain is not so easily proved. Both must concur in order to establish a domicile.”
When the parties here went to Connecticut in 1964 as a family, and with their belongings, they left no abode in Maine. Plaintiff’s domicil was that of her husband. 25 Am.Jur.2d Domicil § 48, and Harding et ux. v. Alden,
The fact that domicil is so dependent upon intent, cases dependent upon domicil present peculiar difficulties. As in other cases in which intent is relevant, it is supported by statement of the person whose intent is in issue and proof of other facts from which intent may properly be inferred. The factual circumstances may speak louder than the words. Here plaintiff seeks to prove domicil upon only a hope
*747
that she can sometime return to Maine. It is not enough. See Turner v. Turner,
Report discharged.
DUFRESNE, J., sat at argument, but did not participate in the decision.
Notes
. The Reporter’s Notes associated with Rule 72 M.R.C.P., Maine Civil Practice, page 538, points out, without comment, that Rule 72(c) is adapted from Massachusetts General Laws, Chapter 231, § 111. The Massachusetts statute expressly provides that a justice may “report” a ruling made by “him.”