Burlen v. Shannon
115 Mass. 438
Mass.
1874
Check Treatment
Gray, C. J.

This case grows out of a protracted controversy, with which in various stages and aspects this court has long been familiar,* between Oliver N. Shannon and Harriet 1ST. Shannon, who was once his wife, and who claimed to be such to the time oí his death.

The object of the action now before us is to recover for board and lodging furnished to her from February 1860 to February 1866. It was brought against him in his lifetime, and is now defended by the administratrix of his estate.

In a similar action brought by this plaintiff against bim for board furnished from June 1850 to July 1853, the jury at September term 1858 returned a general verdict for the defendant, and also found specially that Mrs. Shannon did, during the period for which board was claimed in that action, “live separate from her husband without his consent and without any justifiable cause; ” and on that verdict judgment was rendered. At the trial of the present action, the plaintiff offered to prove that Mrs. Shannon left her husband in 1846, on account of acts of cruelty which justified her in leaving him. But this evidence was rightly rejected as inconsistent with the findings and judgment in the former action, which conclusively established between the parties to that action, who are the parties to this, that she had no justifiable cause for leaving him. Burlen v. Shannon, 14 Gray, 433, 437. Same v. Same, 99 Mass. 200, 205. The fact that Mrs. Shannon did not and could not by law testify at the former trial does not make the former judgment less conclusive.

The testimony introduced by the defendant of a declaration of the plaintiff as to the intention with which Mrs. Shannon did certain acts was competent only to affect the credibility of the plaintiff as a witness and the good faith of her claim, and does not appear to have been admitted for any other purpose. The offer *447made by the plaintiff, by way of rebutting this testimony, to prove by Mrs. Shannon that her intention in doing the acts in question was different, was rightly rejected. Proof of what was Mrs. Shannon’s intention had no tendency to disprove what the plaintiff had said.

The remaining and the principal question in the case is of the validity of the decree of divorce from the bond of matrimony, obtained by the husband in Indiana, in 1856, for the cause of live years’ desertion by the wife.

It appears by the record of the case in which that decree was rendered, that notice was given to the wife by the leaving of a summons at her abode in this Commonwealth, and by publication in a newspaper in Indiana. The objections, made at the argument, to the sufficiency of the notice and the form of the proceedings, do not appear to have been made at the trial, and are therefore not now open to the plaintiff. Upon this bill of exceptions it must be assumed that the proceedings and decree were in accordance with the laws of Indiana.

The jury have found that Mr. Shannon did not go to Indiana to obtain a divorce for a cause arising in this Commonwealth while the parties resided here. The case is thus distinguished from those cited by the plaintiff, in which it appeared that the libellant had gone into another state to obtain a divorce for a cause which occurred here while the parties resided here, or which would not be a cause of divorce under our laws. Hanover v. Turner, 14 Mass. 227. Lyon v. Lyon, 2 Gray, 367. Chase v. Chase, 6 Gray, 157. Smith, v. Smith, 13 Gray, 209. “In all otuer cases, a divorce in any other state or country, according to the laws thereof, by a court having jurisdiction of the cause and both the parties, shall be valid and effectual in this state.” Gen. Sts. c. 107, § 55.

For the purpose of jurisdiction in cases of divorce, the general rule is that the domicil of the husband is the domicil of the wife also, or, as stated by Mr. Justice Wilde, “ The wife could not acquire a domicil separate from her husband, and although they lived apart, she still followed his domicil.” Greene v. Greene, 11 Pick. 410, 415. The only exception to this rule, which has been recognized by this court, is that an innocent wife may under some circumstances have a separate domicil for the purpose of sustain*448ing a libel against a guilty husband; not that q wife, who has left her husband and is living apart from him without cause, has such a separate and exclusive domicil as will prevent him, if in good faith domiciled elsewhere, from obtaining a divorce from her in the place of his domicil.

In Harteau v. Harteau, 14 Pick. 181, the parties were married in this state, lived here several years, and then removed into the State of New York, and took up their residence there. The wife, on the ground of the husband’s desertion and cruel' neglect to support her in that state, returned to Massachusetts, and took up her abode here, and applied for a divorce here for the causes alleged to have occurred in New York, the husband continuing to have his domicil in New York. The court was of opinion that if the wife had always continued to reside in this Commonwealth, she might have maintained a libel here, even for a cause which occurred in another state, and after the husband had acquired a domicil there; and dismissed the libel because, both parties having renounced their domicil here, the return of the wife to this state would not give the court jurisdiction over the husband under the statutes then in force.

The later statutes provide that a libellant who has resided in this state for five years, and did not remove into this state for the purpose of procuring a divorce, may obtain a divorce for any cause allowed by law, whether it occurred in this Commonwealth or elsewhere; and that in no other case shall a divorce be decreed for any cause arising out of this state, unless the parties had previously lived together as husband and wife in this state, and one of them lived in this state when the cause occurred. Gen. Sts. c. 107, §§ 11, 12.

In Shaw v. Shaw, 98 Mass. 158, the husband and wife, having been married and resided together here, left this Commonwealth to take up their residence in Colorado. In Pennsylvania, on the journey, he treated her. with extreme cruelty, and she left him and returned to this state, and continued to reside here. It was held, that she might maintain a libel here for a divorce for the cause occurring in Pennsylvania, although the husband before it occurred had left this state with the intention of never returning, and never did in fact return, and therefore no notice was or could be served upon him in this Commonwealth.

*449In Hood v. Hood, 11 Allen, 196, the parties together removed from this state to Illinois, and resided there some years. The wife then deserted the husband and returned to Massachusetts, and ever after resided here, and the husband entered into an agreement for her separate maintenance. He afterwards applied in Illinois for, and after notice to her by publication in that state obtained, a decree of divorce from the bond of matrimony for her desertion. This court held that as the husband’s domicil was in Illinois, and his domicil was in law the domicil of the wife, the decree of divorce there obtained by him was valid and conclusive against her. And it has since been decided that that decree, being conclusive between the parties upon the subject whether the marriage between them was dissolved, was equally conclusive upon that subject in an action between any persons whatever. Hood v. Hood, 110 Mass. 468.

The case at bar is not distinguishable from that of Hood v. Hood. At the time of Mr. Shannon’s removal to the State of Indiana, his wife was living apart from him, and, as the jury have found, without justifiable cause. Such being the fact, the new domicil acquired by him in that state was in law her domicil, and the courts of that state had jurisdiction of the cause and both the parties; and the divorce there obtained must, by the express terms of 'the Gen. Sts. c. 107, § 55, be held valid and effectual in this Commonwealth. Exceptions overruled.

Notes

Shannon v. Shannon, 2 Gray, 285, 4 Allen, 134, and 10 Allen, 249. Burlen v. Shannon, 3 Gray, 387, 14 Gray, 433, and 99 Mass. 200. Shannon v. White, 109 Mass. 146. Shannon v. Shannon, 111 Mass.