Chandler v. Chandler
112 S.E. 856
Va.
1922
Check Treatment
Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

There are but two questions presented for our decision by the assignments of error—first, whether it appears from ■the record that the domicile and residence of the husband, the plaintiff, was such that the court had jurisdiction of the cause; and, second, whether there was sufficient evidence before the court below to establish the fact of the constructive desertion and accompanying circumstances relied on by the husband, and, if so, whether such desertion is ground for divorce in this State. These questions will be disposed of in their order as stated below.

1. Does it appear from the record that the husband, the plaintiff, had been domiciled in this State for at least one year next preceding the commencement of the suit; that he was domiciled in this State at the time of bringing *425the suit; that the wife, the defendant, was not a resident of this State, and that the husband was a resident of the city of Alexandria (in which city the suit was instituted) at the time the suit was commenced?

This question must be answered in the affirmative.

[1] The jurisdiction of our courts to grant divorces being a special statutory and limited jurisdiction, all of the facts in question concern not merely the venue but are jurisdictional, under the provisions of the statute on the subject (contained in section 5105 of the Code—the amendment of the statute by subsequent act of Assembly not being in force when this suit was instituted). Lile’s Eq. Pl. & Pr.. secs. 399-403, and authorities cited. Nothing that is said, in Towson v. Towson, 126 Va. 640, 102 S. E. 48, was intended to controvert this principle. The expression in the opinion in that case with respect to venue was not necessary to the decision, and was inadvertently used. In the instant case, however, all of the facts in question affirmatively appear from the record. They are affirmatively alleged in the bill, and such allegations are sustained by the proof, without any conflict whatever in the evidence.

[2] As shown by the uncontroverted evidence, the domicile of origin of the husband, the plaintiff, was in Virginia. That fact of itself, when shown, was prima facie, and, hence, sufficient evidence to establish the fact that the plaintiff’s domicile continued unchanged from his birth to the time of suit, and so had been in Virginia, for more than one year prior to the commencement of the suit; unless the abandonment of that domicile by the acquisition of a new domicile of choice affirmatively appeared from the evidence. Minor’s Conflict of Laws, sections 29, 31. Whether one has acquired a domicile of choice, and has thereby abandoned or lost his domicile of origin is, in some cases, an intricate and difficult question, but not so in the *426instant case. The principles governing the subject of the acquisition of a domicile of choice are well settled. Minor’s Conflict of Laws, secs. 56-64; Cooper v. Com., 121 Va. 338,-93 S. E. 680; Towson v. Towson, 126 Va. 640, 102 S. E. 48; Lindsay v. Murphy, 76 Va. 428; Yates v. Yates, 115 Va. 678, 79 S. E. 1040. There is no evidence in the cause before us even tending to show that any of the essential requisites for the acquisition of a domicile of choice existed. All of the evidence is, indeed, to the contrary.

[3, 4] This being a case in which the plaintiff exercised the option given him by statute of bringing the suit “in the * * * corporation of the plaintiff’s residence,” the fact that the defendant was “not a resident” of the State of Virginia (being one of the conditions upon which such option is given by the statute), became jurisdictional. But what is held in Towson v. Towson, supra (126 Va. 640, 651-2, 102 S. E. 48), with respect to the meaning of the word “resident,” as distinguished from the meaning of the word “domiciled,” as both are used in the statute, is equally applicable to the meaning of the word “resident” as applied to the defendant wife in the cause before us. See, to the same effect, Minor’s Conflict of Laws, section 20, and authorities cited. Even if the wife’s domicile still remained the same as that of her husband at the time of the suit, and the domicile of the wife was then also in Virginia; still, at that time, according to her own testimony, she occupied a separate place of abode in the city of Washington, and, hence, was a resident of that city, and was then, within the meaning of the statute, “not a resident” of Virginia. Her then place of abode, or habitation, for the time being, was not in this State. Such a place of abode, or habitation, as contradistinguished from the place of mere transient, or, under some circumstances, even daily presence, for business or pleasure, is the place of one’s resi*427dence within the meaning of the statute under consideration, as it is of statutes of limitations, attachment statutes, and the like. One may be domiciled in one State and be a resident of another within the meaning of such statutes. Griffin v. Woolford, 100 Va. 473, 41 S. E. 949; Long v. Ryan, 30 Gratt. (71 Va,.) 718; Frost v. Brisbin (N. Y.), 19 Wendell 11, 32 Am. Dec. 423, and note pp. 427-8; Atkinson v. College, 54 W. Va. 32, 46 S. E. 253.

[5] 2. (a) Was there sufficient evidence to sustain the finding of the decree under review of the fact of the willful withdrawal by the wife from the husband of the privilege of sexual intercourse, without just cause or excuse, more: than three years before suit and the continuance of such withdrawal for that period next preceding the suit; and. if so (b), was such constructive desertion sufficient ground, under the accompanying circumstances shown to exist in this case, to sustain the decree of divorce, under the Virginia statute (contained in section 5103 of the Code) ?

Both branches of the question must be answered in the affirmative.

[6] (a) While the evidence on the subject is conflicting, there was sufficient testimony for the plaintiff husband, if credible, to establish the fact of the constructive desertion in question, and that it was accompanied by willful conduct on the part of the wife, consisting of groundless charges by the wife of infidelity on the part of the husband, and of neglect on the part of the wife of her marital duties with respect to attention to the keeping of the room of the husband and his bed in a reasonable condition of cleanliness and comfort and with respect to his meals, which practically destroyed all home life in any true sense, made it an unfit environment for the proper rearing of the children, and rendered the marriage state almost intolerable and impossible to be endured. All of the testimony on these subjects was heard ore tenus by the learned *428judge of the court below. He had the opportunity of observing the witnesses and their demeanor while testifying. In cases involving the mere weight of the testimony, his decision upon the facts is entitled to great weight. (See the discussion of this subject in Barnard v. Barnard, ante, p. 155.) We must, therefore, hold the facts to be concluded; and that the facts were those which the testimony for the plaintiff tended to establish, as we have stated above.

(b) Upon the legal question involved, the following will be said:

The statute in Virginia (section 5103 of the Code) provides that: “Where either party willfully deserts or abandons the other for three years,” the divorce may be decreed “to the party abandoned.”

There is very high authority for the position that, in principle, and in accordance with “the adjudged law, speaking through its principles, rather than by a resolving of the exact question,” the mere withdrawal of sexual intercourse, without just cause or excuse, constitutes willful desertion. 1 Bish. on Mar. & Div. (6th ed.), secs. 779, 782; Whitfield v. Whitfield, 89 Ga. 471, 15 S. E. 543; Axton v. Axton, 182 Ky. 286, 206 S. W. 480. But see the comment or Mr. Bishop’s position in Fritz v. Fritz, 138 Ill. 436, 28 N. E. 1058, 14 L. R. A. 685, and in note to that case, pp. 685-6.

In some jurisdictions the courts go to the opposite extreme of holding that so long as the husband and wife live under the same roof, there can be no desertion which will authorize a divorce; that there must be an abnegation of all of the duties of the marital relation to constitute desertion. This holding, however, except in the State of Massachusetts (where, as pointed out by Mr. Bishop, the decisions have not been uniform on the subject), seems to be based on the language in the statutes involved in the *429respective jurisdictions where such holding obtains, which is more restrictive than that found in the Virginia statute. For example, in Iowa it is so held, but there the statute-authorizes the wife to obtain a divorce from the husband “only when he willfully deserts the wife and absents himself without reasonable cause for the space of two years.” Pfannebecker v. Pfannebecker, 133 Iowa 425, 110 N. W. 618; Lambert v. Lambert, 165 Iowa 367, 145 N. W. 920. Also, in Pennsylvania, where the statute requires the applicant for divorce on that ground to prove “willful and malicious desertion and absence from the habitation of the other, without reasonable cause, for and during the space of two years.” Wacker v. Wacker, 55 Pa. Sup. Ct. 380; Cunningham v. Cunningham, 60 Pa, Sup. Ct. 622. Likewise in Missouri, where the statute provides that “if one of the parties absent himself or herself without reasonable cause for the space of one year,” the other party is entitled to a divorce. Williams v. Williams, 121 Mo. App. 349, 99 S. W. 42; Gruner v. Gruner, 183 Mo. App. 157, 165 S. W. 865. So, too, in Maine, where the statutory requirement is “utter desertion.” Stuart v. Stuart, 78 Me. 548, 7 Atl. 473. And in Fritz v. Fritz, 138 Ill. 436, 28 N. E. 1058, 14 L. R. A. 685, strongly relied on for the defendant wife in the instant case, the allegation of the bill was that the wife “has willfully absented herself,” etc., and, without having the statute before us, we presume that such was the language of the statute involved. (The italics in the above quotation are supplied.)

There is, however, a middle ground, on which many courts meet in their view of the subject under consideration.

This is said in Stewart v. Stewart, 78 Me. 548, 551, 7 Atl. 473: “In England, formerly, divorces were not allowed for desertion. The only remedy for such a wrong was a suit in the ecclesiastical courts for restitution of conjugal rights. *430But, those courts, while requiring the offending party to return and live with the libellant, never undertook to compel the granting of sexual intercourse. They made a clear distinction between ‘marital intercourse’ (sexual intercourse) and ‘marital cohabitation’ (living together). The latter was a right to be enforced by the courts; the former was a right.tc be enforced only in foro conscientiae. Lord Stowell, in Foster v. Foster, 1 Hag. Con. 154, said: ‘The duty of matrimonial intercourse cannot be compelled in this court, though matrimonial cohabitation may.’ ” The same thing is said, in substance, in many of the authorities on the subject.

And, accordingly, many of the courts hold that mere withdrawal of sexual intercourse, although based on no just cause or excuse, where the marital duties are otherwise performed, does not constitute desertion. Southwick v. Southwick, 97 Mass. 327; Segelbaum v. Segelbaum, 39 Minn. 258, 39 N. W. 492; Reid v. Reid, 21 N. J. Eq. 331; Anonymous, 52 N. J. Eq. 349; 28 Atl. 467; Steele v. Steele (D. C.), 1 McArthur 505—but see the view of the chief justice expressed in his concurring opinion in this case; Schoessow v. Schoessow, 83 Wis. 553, 53 N. W. 856; Prall v. Prall, 58 Fla. 496, 50 So. 867; Pratt v. Pratt, 75 Vt. 432, 56 Atl. 86; and the other authorities to the same effect cited in Ringgold v. Ringgold, 128 Va., at p. 495, 104 S. E. 836.

[7] In entire accord with the principle on which the middle ground last referred to rests, the following authorities hold that the willful withdrawal of the privilege of sexual intercourse, without just cause or excuse, constitutes willful desertion; within the meaning of such statute on the subject as that in Virginia, when such -withdrawal is accompanied, as in the cause before us, with such willful breach and neglect of other marital duties as to practically destroy home life in every true sense, and to render the marriage state well nigh intolerable and impossible to be en*431dured. Such conduct, on the part either of husband or wife, is considered to be a general withdrawal from the duties of the marital relationship; and, if willfully done, without just cause or excuse, this, by the great weight of authority, constitutes willful desertion. Ringgold v. Ringgold, 128 Va. 485, 104 S. E. 836; Parmly v. Parmly, 90 N. J. Eq. 490, 106 Atl. 456; Evans v. Evans, 93 Ky. 510, 20 S. W. 605; Graves v. Graves, 88 Miss. 677, 41 So. 384; Magrath v. Magrath, 103 Mass. 577, 4 Am. Rep. 579.

The conduct of the defendant which, together- with the withdrawal of sexual intercourse, was held to have “amounted to a general withdrawal from matrimonial cohabitation” in Ringgold v. Ringgold, was not the same in its particulars as that of the defendant in the instant case; but the same principle was there applied which, we think, is applicable in the instant case.

In Evans v. Evans, supra (93 Ky. 510, 20 S. W. 605), the statute involved provided that an “abandonment” for one year, without fault upon the part of the complaining party, was ground for divorce. The Virginia statute is practically the same in its provisions. In the opinion of the court in that case, this is said: “The evidence, in our opinion, shows an abandonment by the husband for a year. It is true he continued to live at the same place where his wife resided, until about four months before the institution of her suit; but the testimony shows that, for a year or more, he had refused to recognize her as his wife or to live and cohabit with her. This amounted to an abandonment, although they slept beneath the same roof.” (Italics supplied.)

The statute involved in Graves v. Graves, supra (88 Miss. 677, 41 So. 384), constituted “willful, continued and obstinate desertion for the space of two years,” ground for divorce. The court below found the facts to be that the withdrawal of the privilege of sexual intercourse was accompanied by *432the neglect of other marital duties to the extent that the-parties occupied towards each other “the attitude of strangers,” but they continued “to live in the same house,” and' the lower court held that, because of the last-named fact, there was no desertion. The appellate court, in reversing that case, said this: “The court below was correct in its finding of facts, but we cannot agree with the learned' chancellor in the opinion that there can be no desertion where the parties live under the same roof * * *. Abandonmént—desertion—may be as complete under the same shelter as if oceans rolled between.”

The decree under review will be affirmed.

Affirmed.