29 Colo. 260 | Colo. | 1902
delivered the opinion of the court.
The plaintiff and defendant were married in the dominion of Canada on June 26, 1895. In the fall of that year the plaintiff came to Colorado, and on the 20th of July, 1898, filed his complaint in the county court of Jefferson county, asking for a divorce from the defendant upon the ground of desertion. The complaint contains the following allegation: “That on or about the 31st day of July, A. D. 1895, the defendant, disregarding the solemnity of her marriage vow, wilfully deserted and absented herself from the plaintiff without reasonable or any cause, and ever since said day has and still continues so to wilfully and without reasonable cause desert and absent herself from the plaintiff, so that the plaintiff alleges that the defendant has wilfully and without reasonable cause deserted and absented herself from the plaintiff for the period of more than one year immediately prior to the commencement of this action.”
After service of the summons, the defendant appeared and asked for temporary alimony and counsel fees. The court granted her motion and allowed her the sum of forty' dollars. The defendant filed her answer, denied the allegations of the plaintiff’s complaint, denied that plaintiff was a resident, or citizen of Colorado, alleged that the plaintiff had deserted her, and asked that the cause be dismissed. Upon
There are thirty-four assignments of error. The only ones we will consider are those which relate to the granting of alimony, the citizenship of the plaintiff, and the refusal of the court to sustain the objection to the testimony of plaintiff to matters which occurred prior to the 31st day of July, 1895.
The question of temporary alimony rests largely in the discretion of the trial court, and the ruling of the court should not be disturbed unless there is abuse of that discretion. The defendant resided in the dominion of Canada. The sum of forty dollars appears to us to be entirely inadequate to enable.her to properly defend the suit. As it was, the defendant was required to expend the sum of sixty dollars for the taking of depositions, was not present at the trial, and was not able, therefore, to pay, with the money allowed by the court, her counsel fees or all the costs that she incurred. But we think we should not disturb the verdict because of this ruling of the court, for the reason we have [indicated. The court undoubtedly took into consideration the circumstances of the parties and allowed what, in his opinion, was a just sum to the defendant. In this connection it may be well to state, however, that
Section 6 of the act authorizing this proceeding is in part as follows: “No person shall be entitled to a divorce in this state unless such person shall have been a bona fide resident and citizen of this state for one year prior to the commencement of the action, which fact shall be proven by the evidence of at least one credible witness other than the plaintiff.” The law is well settled that one cannot be a citizen of a state unless he is a citizen of the United States; and it is urged by the defendant that the plaintiff, being a citizen of the dominion of Canada, is not entitled to a divorce. In the restricted sense, a citizen of a state is a citizen of the United States domiciled in a state; and the defendant urges that the legislature intended to use the word “citizen” in this restricted sense. We cannot agree with this contention of counsel. At the time of the enactment of this law, persons were in the habit of coming to Colorado for the sole purpose of obtaining divorces, and the legislature, to prevent this evil, enacted the statute
We are confirmed in our opinion that this was the intention of the legislature by a consideration of the facts which would be likely to occur if the construction insisted upon by the defendant were adopted. The only purpose, as we observed, the legislature had in requiring residence and citizenship here was to prevent the use of our courts by persons of other places coming here and residing temporarily for the sole purpose of obtaining a divorce. Yet, if the construction placed upon the act by the defendant were adopted by the court, it would result in denying to many actual and bona fide residents of this state access to our courts for the purposes of divorce until one year after they had become citizens of the United States, and this without regard to the length of time they had been residents of this state. A man
Again, by our constitution, men and women of proper qualifications are entitled to hold any office in the gift of the people of the state if they have declared their intention of becoming citizens of the United States, and we cannot believe that the legislature intended by the use of this word, in view of all these facts, to deny to persons not citizens the right to sue for divorce in our courts.
The act itself would appear to warrant the construction we have suggested. “Which fact shall be established by the evidence of some credible witness other than the plaintiff” is the language of the act. Considering the grammatical construction of the act, it would seem that the legislature did not intend that more than one fact should be established when it
But we think the case must be reversed for the reason that the defendant has not had an opportunity to properly defend or explain very material statements made by the plaintiff concerning her conduct. These statements of the plaintiff involved not only desertion but moral turpitude as well. If the plaintiff’s testimony is correct, the defendant was not only unchaste, but she may have been guilty of adultery. He testified that upon their wedding night, and at all other times, she denied him his marital privileges. The complaint charges the defendant with desertion on or about the 31st of July, 1895; it appears from the testimony that this is the day upon which the defendant left the plaintiff’s home, and there was no intimation anywhere in the pleadings that the plaintiff intended to rely upon the refusal of the defendant to permit cohabitation, as supporting the charge of desertion. These matters were permitted to be given to the jury with all the disgusting details, and undoubtedly had a very prejudicial effect upon the defendant’s cause. She was not advised in any way that the plaintiff would undertake to prove and establish her unchastity, under the garb of a charge of desertion; and, while it may be true, as contended by counsel for the plaintiff, that the refusal of the defendant, such as charged, constituted desertion,' when the defendant alleged the desertion as having taken place on the 31st of July (which was the very day upon which defendant left his home) she had a right to believe that he ex
We are satisfied that by permitting this testimony to be given, the rights of the defendant were prejudiced and that the court committed error in allowing
Reversed.