24 Ind. 355 | Ind. | 1865
The appellant filed his petition against the appellee, his wife, for divorce. The wife answered, and also filed a cross-petition, praying a divorce in her own behalf, and thereupon the appellant dismissed his petition, and answered the cross-petition by a general denial. Upon trial, the court found the facts specially, and its conclusions of law thereon, and decreed a divorce to the wife, with $800 dollars as alimony. The husband appeals. The special findings, so far as need be set forth to exhibit the questions before us, are as follows:
That the parties were lawfully married some eighteen or twenty years ago; that they have never had a child; that the wife; has, for most of the time since her marriage, been an invalid; that the plaintiff was guilty of mistreating her, as charged in the cross-petition, and that she is entitled to a divorce and $800 alimony; that she resolved three years ago last fall, to part from him, and go to live with her father and brother’, in the State of Pennsylvania, and accordingly left at that time with her father, and has been living ever since with her father and brother, in that state, without any intention of returning to this state to reside here; that she never did return, except to defend this suit, last fall, and at the present time, and to prosecute her cross-petition, and intends to return to that state on the conclusion of the present trial, and the conclusions of law upon these facts are:
1. That the court has jurisdiction to try and determine the cross-petition, by reason of having acquired jurisdiction to try the petition of the plaintiff, and that the dismissal of that petition does not oust that jurisdiction, and that it was not necessary for the wife to allege or prove that she
2. That if it were necessary, the wife has not lost her domicil in Miami county, Indiana, by reason of her residence in Pennsylvania, and is to be deemed and taken as a resident of the same county with her husband, (because of his domicil here,) and for the purposes of this suit.
Proper exceptions to the conclusions of law of the court below, present two questions for our determination.
1. In case of final separation of husband and wife, and their actual permanent residence in different states, is the domicil of the husband to be regarded as fixing that of the wife, so as to confer jurisdiction in a divorce case?
In the view we entertain of the case before us, this question is not now important. But it is in the record, and has been argued by counsel, and it is probably our duty now to decide it.
The general rule undoubtedly is that the domicil of the wife is determined by that of her husband. This rule results from the legal identity of husband and wife, constituting them one person in law, and from her duty to dwell with him. But it is argued, on behalf of the appellant, that the identity of domicil is a presumption which may be rebutted in a divorce case; that any act of the husband which entitles the wife to a divorce, immediately discharges her from any obligation to dwell with him; that, in such a case, she must separate from him to preserve her legal rights, or the cohabitation will be a condonation of the act; and that when the duty of dwelling together ceases, the presumption must also cease.
There is much force in this argument, and it is not without direct authority to support it. In Schonwald v. Schonwald, 2 Jones Eq. R. (N. C.) 367, it was held that “ the maxim that the domicil of the wife follows that of the husband cannot be applied to give jurisdiction.” And it was decided that, at any rate, the statute of North
2. The remaining question depends upon the construction to be given to our statute of divorces. It is, whether upon cross-petition by a non-resident, our courts have jurisdiction to grant divox’ce, where the original cause was within the jurisdiction?
Section 6 of our divorce act provides that “divorces may be decreed,” &c., “on petition filed by any person who, at the time,” &c., “shall have been a bona fide resident of the state one year previous to the filing of the same, and a
A brief review of our recent legislation concerning divorces may aid us. In 1852, we permitted any resident of the county to apply to our courts, in that county, for a divorce, and his own affidavit of such residence was made, prima facie, sufficient evidence of it. Under that act, such monstrous abuses were practiced, to the injury of unsuspecting husbands and wives, in other states, that our statute became a reproach to us abroad. The mischief was, not that parties residing elsewhere came to the domicils of their husbands or wives here, and, in response to their applications for divorce, obtained decrees on their own behalf, on cross-petitions filed. Quite otherwise. It was that persons from other states, leaving home upou pretended visits of business or pleasure, never intending to domicil here, and, in many cases, not remaining a day among us, and sometimes not even entering our borders at all, had, by the barest frauds and peijuries, procured divorces in our courts. As the fourteenth section then stood, the dismissal of the petition carried the cross-petition with it, and enabled a plaintiff*, who must be defeated by the resident or non-resident defendant upon cross-petition, by dismissing his petition as often as a cross-petition was filed, to annoy and perhaps exhaust the defendant so that finally no defense would be 'made. In a
It must be quite apparent that to hold the requirement of a year’s residence applicable to defendants, as well as petitioners, is not only to give section 6 a construction not required by its language, but also to make it conflict with the general terms of section 14. Nor is this all. A consequence would be, that in two cases precisely alike in their facts, the defendant in one being a resident, and in the other a non-resident, the former might result in a decree for divorce on cross-petition, with such alimony as ought to be given where the plaintiff is in fault; while in the latter, that vindication of character which can often be secured only by a decree, could not be had by the defendant, nor could the alimony be adjusted upon the basis of the fact that the defendant was the party
So far as the decree affects the status of the plaintiff, who is a resident, and imposes upon him a pecuniary liability for the alimony allowed, which will be effective here, we suppose there can be no doubt that it was competent for an Indiana court to go, if it proceeded accoi’ding to our laws. Whether the courts of Pennsylvania will regard the social condition of the defendant as having been changed, is not a question for us. It is to be regretted, however, that questions of that class have not been always dealt with upon general principles of public law, rather than maxims of local policy.
Upon the question in hand, we concur with the learned judge below, in his conclusion of law, “that the Circuit Court had jurisdiction to try and determine the cross-petition,” &c., “and that it was not necessary for the defendant to prove that she was a bona fide resident of this state for one year previous to filing said cross-petition.”
Thus, while our statute is intended to prevent nonresidents from making use of our courts to perpetrate frauds upon their unsuspecting wives or husbands, by coming here to petition for divorces, it, at the same time, arms them with every weapon of defense which is afforded to our own people, when brought into court at the suit of those whose bona fide residence here gives us jurisdiction. As we construe the statute, section 14 is the complement of section 6, and both together are well calculated to protect non-i'esidents, prevent abuses, and promote the enlightened administration of justice in divorce cases.
The judgment is affirmed, with 1 per cent, damages and costs.