Miller v. Miller, 88 Vt. 134

Miller v. Miller

88 Vt. 134 | Vt. | 1914

Powers, C. J.

These parties were married at Chicago in the fall of 1911, and came at once to Newbury, Vt. to reside. They lived together there on a farm owned by the libellee and his brother until May, 1912, when, on account of the husband’s cruel treatment, the libellant was compelled to leave him. She went back once for a reconciliation, but was in effect turned away by him and forbidden to return. She then went back .to Chicago, and did not intend to return to Vermont unless her husband came for and requested her to do so. This he never did, though there was some correspondence between them looking toward a resumption of marital relations at Newbury. She remained in Chicago until she came back here to prosecute her libel for a divorce. The court below granted the libellant a divorce, and the *136libellee insists that this was error, because the libellant lacked the year’s residence required by P, S. 3071.

The term “reside” is used in different senses, and if this statute makes actual living here for the time specified a prerequisite, the libellant fails to make a ease; for she was living in Chicago and not in Vermont during that time. But, having in mind the evil which the statute was designed to guard against, ; — fraudulent divorces, — we do not think that, in a case like this, it is necessary for the libellant to actually live in this State during the year preceding the filing of her libel. It is sufficient if her legal domicile is here. This is generally so held, and sufficiently appears from Turner v. Turner, 87 Vt. 65, 88 Atl. 3, 47 L. R. A. (N. S.) 505. And her legal domicile was here, because her husband’s was here; and the general rule is that the husband’s domicile is that of the wife. True it -is that when compelled by his misconduct to leave him, she may acquire a separate residence,—Patch v. Patch, 86 Vt. 225, 84 Atl. 815,— but she is mot Obliged to do so. He cannot by his bad conduct compel her to acquire a new domicile for herself; she may retain his, though she lives elsewhere. Duxstad v. Duxstad, 17 Wyo. 411, 100 Pac. 112, 129 Am. St. Rep. 1138.

So here, the libellant’s domicile was at Newbury, and was not lost by the mere act of removal, but continued until she acquired a new one somewhere else. Turner v. Turner, supra. To make a change of domicile effective, she must have not only gone to Chicago and lived there, but she must have had the intention of remaining there and making that city her home. Blondin v. Brooks, 83 Vt. 472, 76 Atl. 184. Neither residence alone, nor intention without more, would be sufficient.

It is not found that the libellant intended to make Chicago her place of abode. All that is found is that she did not intend to return to Newbury unless her husband came for her, — which is quite a different thing and does not fulfil the requirement of the rule. Turner v. Turner, supra.

The rule apparently approved by Mr. Bishop is thus stated: “If the wife is plaintiff, and by the local law it is necessary for plaintiffs in divorce controversies to be domiciled in the country, she may sustain herself on her husband’s domicile there,' though she is in fact living abroad; and he cannot set up, in answer to this position, his own wrong, on account of which she has lawfully acquired another domicile.” This is going further than-we *137are required to go in the ease in hand, for as we have seen the findings here do not show that the libellant has acquired a domicile in Chicago. The author quoted admits that the doctrine of the text is denied in some jurisdictions, and it is shown in the note to Succession of Benton, (La.) 59 L. R. A. at p. 149, that some courts hold that the maxim that the wife’s domicile follows her husband’s cannot be involved in her favor to confer jurisdiction when she, being a nonresident, applies for a divorce in the state of the husband’s domicile. .But the views herein expressed are within the following authorities: Kashaw v. Kashaw, 3 Cal. 312; Dunlop v. Dunlop, 3 Ky. L. Rep. 20; Masten v. Masten, 15 N. H. 159; Sewell v. Sewell, 122 Mass. 156, 23 Am. Rep. 299; Smith v. Smith, 19 Neb. 706, 28 N. W. 296; Davis v. Davis, 30 Ill. 180; and Duxstad v. Duxstad, supra, —a case in which the facts were essentially as here.

Affirmed, and cause remanded for a neiv time of payment of alimony to he fixed.