Field v. Field
236 Mass. 256
Mass.
1920
Check Treatment
Carroll, J.

The parties were married on February 1, 1908, in Fall River, where the wife was living, the husband at that time residing in Providence, in the State of Rhode Island, and being engaged there in business. After a wedding journey to Lowell they lived in Providence for about three weeks. In March or April, 1908, they went to Lowell and remained there five weeks, during which time the libellant “worked in . . . [a] restaurant.” They then returned to Providence where they lived until November, 1915, when the libellee deserted the libellant. The husband continued to live in Providence for six months after the desertion, and in 1916 came to Waltham in this Commonwealth, where he has since resided.

The judge found that when the libellant and his wife went to Lowell, in March or April, he “thought that he might settle in Lowell if he liked the conditions, but that he never formed a definite intention to remain there;” that his going to Lowell did not work a change in his domicil, and it continued to be in Providence from the date of the marriage until he removed to Waltham. The libellant had not lived in this Commonwealth for “five years last preceding the filing of the libel” (R. L. c. 152, § 5), and the court had no jurisdiction to grant the libel if the libellant and the libellee had never lived together as husband and wife in this Commonwealth. R. L. c. 152, § 4. The provision in the statute that the parties must have lived together as husband and wife in this Commonwealth in order that a decree of divorce may be granted, means, that they had a domicil here. Ross v. Ross, 103 Mass. 575. Weston v. Weston, 143 Mass. 274. When the parties went to Lowell in March or April, 1908, the husband did not intend to make his permanent home in that city, — his stay depended upon circumstances. If conditions were favorable he might continue to live there; but he had no definite and fixed intention to remain and become a resident of that city and he did *258not acquire a domicil in this Commonwealth. “A person cannot be said to lose a domicil or residence by leaving it with an uncertain, indefinite, half formed purpose to take up his residence elsewhere. . . . Until his purpose to remain has become fixed, he could not be said to have abandoned his former residence.” Worcester v. Wilbraham, 13 Gray, 586, 590. Olivieri v. Atkinson, 168 Mass. 28. White v. Stowell, 229 Mass. 594.

Winans v. Winans, 205 Mass. 388, on which the libellant relies, is clearly distinguishable. In that case, when the libellee came to Boston with his wife he intended to reside permanently in this Commonwealth.

The ruling in the case at bar that the parties had never lived together in this Commonwealth as husband and wife within the meaning of R. L. c. 152, § 4, and that the court had no jurisdiction to entertain the libel, on the facts found was fully warranted, if not required.

Libel dismissed.