Halpine v. Halpine

52 Pa. Super. 80 | Pa. Super. Ct. | 1912

Per Curiam,

The parties to this proceeding for divorce from the bonds of matrimony were at the time of the occurrence of the alleged cause, which was desertion, domiciled in the state of New York and neither, so far as appears, ever had any prior domicile or residence in Pennsylvania. Section 6 of the Act of April 26, 1850, P. L. 590, gives the courts of the commonwealth jurisdiction in such cases, but provides as a condition precedent to its exercise that “the applicant therefor shall be a citizen of this commonwealth, or shall have resided therein for the term of one year as provided by existing laws.” Construing this clause in connection with existing laws in pari materia, it requires a bona fide residence animo manendi—a residence acquired with domiciliary intent—as distinguished from a mere coming into the state with the sole intent to abide there long enough to obtain a divorce and then return to the former domicile. This is the general interpretation of the words “resides” and “residence” as used in divorce statutes. See Hinds v. Hinds, 1 Iowa, 36, for an instructive discussion of that subject. Where the alleged cause for divorce is one not recognized as such by the law of the state in which it occurred, there are many obvious reasons for carefully scrutinizing the testimony as to residence and for holding that the bona fides of the applicant in that regard be satisfactorily established. The remarks of Chancellor Green upon this subject in Winship v. Winship, 16 N. J. Eq. 107, are quite pertinent. See also 2 Bishop on Marriage, Divorce and Separation (1891), secs. 102, 103, 104 and cases there cited. After careful consideration of the testimony of the libelant and the single witness called by her, we are of opinion that the learned' master was right in concluding that the essential fact was not established with that degree of certainty which our law contemplates. As shown by his report, this conclusion is not based solely on the omission to produce the corroborating evidence which presumably it was within the libelant’s power to produce if she had acquired a bona fide residence in this commonwealth, but upon defects in her own testimony and its lack of harmony in a material particular with that of her witness. These are pointed out in his report, and it is not necessary for us to recite them here. It is sufficient to say that it is not necessary in this case, as it was in Reed v. Reed, 30 Pa. Superior Ct. 229, to go outside the record in order to raise any question affecting her credibility. In this, as well as in other important particulars, that) case is plainly distinguishable from the present and does not control it.

The decree is affirmed.