132 A. 879 | R.I. | 1926
This is a petition for divorce from bed and board brought December 26, 1922, by Rosa David against Max David, a resident of the city of Newport. Max David filed an answer and also a cross-petition (G.L. 1923, *305
C. 339, s. 13) for an absolute divorce from Rosa David. The cause was heard in 1923. The petitioner, March 27, 1924, moved to amend her petition for a limited divorce to a petition for an absolute divorce. This motion was granted April 12, 1924; respondent, Max David, duly took exception to the allowance of the amendment. January 21, 1925, the trial justice granted petitioner a divorce from bed, board and future cohabitation. (For other proceedings in the cause see David v. David,
The cause is here on respondent's bill of exceptions. The principal exception is that the Superior Court was without jurisdiction of the cause.
Petitioner lived abroad and for many years had been separated from her husband, the respondent. In 1922 she came to Boston, Massachusetts, Where she went to live with one of her children. She came from Boston to Newport, December 23, 1922, and after signing and swearing to her petition returned at once to Boston. There was no allegation in the petition of petitioner's residence or domicile; it was alleged therein that respondent was a domiciled inhabitant and resident of this state for over two years prior to the filing of the petition (s. 10).
Divorces from bed, board and future cohabitation may be granted by the Superior Court for certain causes, "Provided, the petitioner shall be a domiciled inhabitant of this state and shall have resided in this state such length of time as to the court in its discretion shall seem to warrant the exercise of the powers in this section conferred". (G.L. 1923, "Of Divorce" C. 291, s. 8.)
Jurisdiction of divorce in the Superior Court is created and limited by the statute. The court has jurisdiction of divorce from bed and board, only when the petitioner therefor is a domiciled inhabitant or resident of this state prior to and at the time of the filing of the petition. The jurisdiction is thus limited whether the proceeding is by original petition, cross-petition or by motion in writing setting forth the grounds therefor (C. 339, s. 13). Walker v. Walker, *306
As the Superior Court was without jurisdiction to consider the cause, the exception of respondent is sustained.
The cause is remitted to the Superior Court with direction to dismiss the original and amended petitions and the cross-petition.