Frary v. Frary

10 N.H. 61 | Superior Court of New Hampshire | 1838

Parker, C. J.

In Clark vs. Clark, 8 N. H. Rep. 21, we decided that we could not grant a divorce for the adultery of the husband committed while the parties had their domicil in Vermont, notwithstanding the marriage took place in this state, and the husband came here and committed the offence. In such case, by the general rule, the jurisdiction of the matter of divorce does not attach to the place of the marriage, or to the place where the adultery was actually committed, but to the place of the domicil; and both husband and wife were, in that case, legal residents in Vermont at the time the alleged cause of divorce accrued.

But in this case the libellant, at the time of the adultery of the husband, was actually and properly a resident in this state, and had been so for a considerable period. Prior to her marriage she was an inhabitant of this state ; the marriage was contracted here ; and the parties afterwards resided here. They subsequently removed to New-York, and had their domicil there ; but when the husband deserted the wife, leaving her without adequate provision for her support, she had the right to return to her friends here, and to provide for her own maintenance. After her return under such circumstances, having lawfully come to reside here, she was entitled to the protection of our laws ; and a violation of the marriage covenant having subsequently occurred, she, as a legal inhabitant, may well appeal to those laws for redress.

We have no doubt, under these circumstances, that we have jurisdiction to dissolve the marriage, which was contracted here, notwithstanding the parties afterwards had their domicil in New-York; because, after the desertion of the husband there, and the lawful return of the wife here, her residence in that state was terminated.

We lay out of the case the fact, appearing in the evidence, that the husband after her return came here also. It does not appear that he remained here, nor that he had any domi-cil in Vermont, where the adultery was committed. So far as the evidence goes, it shows him to be a transient person. If, however, it had appeared that subsequent to his desertion, and her return here, he had his domicil in Vermont, it may well be doubted if that could alter the case. He never attempted to re-assume his marital duties after his desertion in New-York.

Whether a wife, married as well as deserted in another state, might thereupon come to reside here, and avail herself of our laws to obtain a divorce for an offence of the husband committed out of this state, subsequent to the time she came here, is a question which may deserve consideration when a case of that character presents itself.

Divorce decreed.