50 N.J. Eq. 137 | New York Court of Chancery | 1892
This is a suit for divorce by a husband against his wife for .adultery. The crime charged has been proved. If the only question presented was whether or not the defendant’s guilt had been established, the case could very easily be decided. But it presents another and much more troublesome query, namely: Had the petitioner, when he brought his suit, a right to sue for a divorce in this state? or, stated in another form, Has this court power, on the facts of the case as they appear in the proofs, to dissolve his marriage with the defendant ? The decisive question of the case is one of jurisdiction.
The parties were married in Iowa. Though they lived together as husband and wife for nearly three years—from June 13th, 1886 (the date of their marriage), until May, 1889—they
The controlling question of the case then is, Was the petitioner-a citizen of this state, having his domicil here, when he brought this suit ? His petition was sworn to at Salt Lake City, Utah,, on the 22d day of October, 1891, and filed on the 31st day of the same month. The first evidence he gave in the case as a witness was given at the same place on the 19th day of March, 1892,.
From the proofs now in the case, it appears that the petitioner-was born at Phillipsburg, in this state, about 1863, and continued to live there until 1884, when he left and went to Nebraska, and-’ afterwards to the Bermuda Islands, and remained absent until the early part of 1885. He then returned and remained here fora short time, but left again in the spring of 1885 and went to-Nebraska. His father died of phthisis or consumption over twenty years ago. This disease is supposed to be hereditary in the family. Up to the time the petitioner left in 1884 he had been a member of his mother’s family, living with her in the homestead house, where she and her husband had lived up to the-time of his death, and where she continued to live with her children after her husband’s death. The petitioner, it will be ob
So that it appears, from the petitioner’s .own testimony, that the facts as to his actual habitaucy for the six years and six months intervening between the time when- he left this state, in the spring of 1885, and the time when he filed his- petition on the -31st day of October, 1891, are, that for three months of the six years and six months he was an inhabitant of this state, and that for the other six years and three months his place of actual habitation was without this state, and in the States of Nebraska and Colorado and Territory of Utah. He says, however, that he always considered and spoke of Phillipsburg as his home; wrote it as his place of residence on hotel registers; when he married in June, 1886, he gave that as his residence, and that, he never paid poll tax in the west, nor voted anywhere except at Phillipsburg. But he does not tell when he voted at Phillips-burg. He certainly did not after the spring of 1885, He also says that there was a room in his mother’s house which was called his, where he kept pictures, books, shells and other like things up to the time of his mother’s death in January, 1892, when .these tilings were removed to his brother’s house in Phil
The decision of questions of disputed domicil are frequently surrounded with a great' many practical difficulties-. The evidence is often obscure, equivocal and contradictory. The acts or conduct of the person whose domicil is the subject of dispute will, in many cases, seem to indicate with certainty that his residence must have been in one place, while his declarations go to show that it was in another. That is the case here. If we look at the petitioner’s acts alone, and remember that he left just after he had attained the age .when he was at liberty to go where he pleased, engage in any pursuit he saw fit, and establish a new home for himself; that he went in search of a more genial climate, in order to protect himself against a disease which it was believed he had inherited, and which it was feared would surely claim him as its victim if he remained here; that he found such a climate, together with steady and pleasant employment; that within a little over a year after he went away he married, and thus placed himself in a position where a home, in which he might set up his household gods, became, unless he is strangely different from other men, the natural desire of his heart; that although he lived with his wife for nearly three years, she and he were never, during that time, at his home of origin in this
My consideration of this case has led me to the conclusion that the decided weight of the evidence tends rather to show that the petitioner was not a resident or citizen of this state when he
The petition must be dismissed.