274 Mass. 77 | Mass. | 1931
This is a libel for divorce which, by amendment, alleges cruel and abusive treatment. on or about June 19, 1928, and on divers other days and times. The judge of the Superior Court made an order for the entry of a decree nisi for divorce on the ground alleged and the libellee saved exceptions to the denial of certain requests for rulings. The case is reported for the determination by this court, with the statement: “if on the evidence and the law the entry of a decree nisi was warranted such' decree is to be entered; if on the law and the evidence a decree nisi is not warranted a decree is to be entered dismissing the libel.” No brief has been filed by the libellee.
The libellant testified that she was born in Massachusetts where she lived until September, 1923, when she moved to Philadelphia, Pennsylvania. She was married to the libellee, in New Jersey, on May 30, 1924, and returned to live in Philadelphia where he conducted a store. One child was born of the marriage, who died in 1926. While in Philadelphia the libellee talked with .the libellant and others about coming to Brockton, Massachusetts, to reside. His business in the store became unprofitable and was going from bad to worse. In April, 1928, the libellant came to Brockton, and while there became ill and was treated by a physician who advised an operation. She made inquiries in that city for a position for her husband, made arrangements for them to live together at the house of her brother, in Brockton, and returned to
G. L. c. 208, § 4, provides: “ A divorce shall not, except as provided in the following section, be decreed if the parties have never lived together as husband and wife in this Commonwealth; nor for a cause which occurred in another jurisdiction, unless before such cause occurred the parties had lived together as husband and wife in this Commonwealth, and one of them lived in this Commonwealth at the time when the cause occurred.” The evidence warranted a finding that the libellee was guilty of cruel and abusive treatment of the libellant at Brock-ton. Bailey v. Bailey, 97 Mass. 373, 378. Freeman v. Freeman, 238 Mass. 150, 159. Linnell v. Linnell, 249 Mass. 51. Meader v. Meader, 252 Mass. 132.
But the jurisdiction of the court to grant a divorce on that ground depends upon proof that the parties were living together in this Commonwealth as husband and wife within the meaning of the statute quoted. They could not be found to be so living unless they had cohabited in this Commonwealth and had acquired a domicil here. Ross v. Ross, 103 Mass. 575. Friedrich v. Friedrich, 230 Mass. 59, 60. Field v. Field, 236 Mass. 256, 257. Newth v. Newth, 241 Mass. 431. Hayes v. Hayes, 256 Mass. 97, 99. The evidence warranted a finding of cohabitation. They could be found to be living together in Brockton “ under conditions which would be regarded as constituting a family relation.” Newth v. Newth, 241 Mass. 431, 433. Weston v. Weston, 143 Mass. 274. Commonwealth v. Lucas, 158 Mass. 81, 84. Ordinarily the question of domicil is one of fact. Thayer v. Boston, 124 Mass. 132, 144. Hayes v. Hayes, supra. An established domicil continues ' until a new one is acquired. Shaw v. Shaw, 98 Mass. 158, 160. “ In order to acquire a domicil both the fact and the intent must concur. Actual residence and the intention to remain either perma
In accordance with the terms of the report a decree nisi is to be entered.
So ordered.