*1 REED, REED, v. FRED C. Appellant, JULIA Plaintiff Respondent.
Defendant No. 9384. February 9, April 5, Submitted 1956. Decided 1956. Rehearing denied 1956. December 304 Pac.
(409) *2 Anderson, Dwyer, Anaconda, Ralph Mr. J. Mr. Horace J. Helena, appellant. for Anaconda, Mr. Dahood, Mr. Knight, Wade J.
Mr. B. C. J. Butte, McCaffery, Jr., respondent. J. Joseph orally. Anderson, Knight argued Mr. Mr. Mr. Dahood MR. JUSTICE ANDERSON: divorces plaintiff and defendant to this action obtained April respective spouses former and on
from their immediate Nevada, marriage. Vegas, at Las entered into truly stormy marital re- After what could be described as a lationship, brought against Julia Reed this action had alleged the defendant Fred C. Reed and it that she year immediately than been resident of Montana more one action, preceding the commencement of this and that defend- disregarding husband, ant duties for more than one his contrary year past, things last has sorts ex- done all pected relationship. in a marital complaint
In respects plaintiff’s enough all was broad under grant provided the statute to an course that absolute divorce proof only prayers followed. However the contained alimony $.1,000 per month, for permanent in the amount of attorney’s injunctive may fees, security relief that she *3 separate apart live from defendant and for such fur- the just may equitable ther relief as to court seem no the specific prayer was made for an absolute divorce. complaint marriage,
Defendant’s answer to the admitted the residence, whereby the and then cross-complained sought he an plaintiff. absolute divorce from the lengthy
After a hearing judge the district below entered a granting decree plaintiff along to the an absolute divorce with monthly certain to paid by ap- allowances be defendant for the proximately years granted five and certain other relief was importance is appeal. judgment which of no to this the From by plaintiff appeals. questions and decree the raised appeal are as follows:
1. right grant Does the court as a matter of law have the to an plaintiff sought sep- absolute in a suit the divorce wherein only? arate maintenance monthly approxi- propriety a award for
2. "What is the plaintiff ? years support and maintenance of mately five for the objections over propriety permitting 3. tbe court in Tbe here- parties the testimony concerning relationship between the prior marriage. to to their in any children, involved children, nor
There are no minor disposition questioned marital status. Thus there but the litigants them- to be made of the marital status between study produced proves at the trial A of the evidence selves. rupture. A recon- finality of the marital the seriousness and shows, impossible. be, ciliation would as the evidence by granted the court Michigan and Tennessee have statute from bed authority use its discretion where a divorce sound appellate in those states have prayed; and board is courts rulings by lower court wherein absolute divorce sustained from granted was when asked a divorce bed (2d) Lingner Lingner, 165 Tenn. 56 S.W. and board. Plantt, (2d) App. 28 Tenn. 186 S.W. and Plantt v. 338; Ratcliffe, 308 Mich. 14 N.W. Ratcliffe v. discretion is allowed the Montana statutes. No such Divorce, Ed., in 3 sec- as is stated Nelson 2nd However ‘‘ pages 409, Contrary governing tion 32.39 410: rule di- jurisdictions, may vorce actions some absolute divorce though only be decreed ask for a divorce from board, divorce, wife, desiring proceeds if a not bed may divorce, separate maintenance court decree but ’ * * * only to decree ’. bound maintenance language indeed to find better con- be difficult It would apropos be to the which would more eases tained presented ap- in the instant they were us circumstances Cawley, Cawley v. Utah than in the case of peal 1‘While, upon hand, the it is said: the other where Pac. evidence, proved plain- defendant, by an abundance of condition, guilty exceedingly harsh tiff, of her view *4 physical treatment, causing her much and of cruel conduct anguish would have entitled her mental which pain and much that in divorce, in she her counterclaim did not yet, view to a frankly divorce, conceded, giving at trial for a pray therefor, her that not be divorced reasons she did desire to plaintiff, from to her wishes respect the court bound in separate limit in her to matter and the relief behalf it may true, plaintiff’s counsel with maintenance. While be vigor contends, replete much that is with facts the evidence from plaintiff which be that and the de- it must clear to all fendant marital re- are mismated and cannot continue their lations, and, reason, long run, that it be bet- for in the would ter society, for better for and better for all con- parties, cerned be they their unfortunate misalliance divorced and ended, plaintiff be is yet, in view of the that the the trans- fact gressor compelled separate and the defendant to is live apart from part, him without her and in fault on view that although divorce, she declines divorced, to be entitled ato she cannot be assuming coerced into enter, a status she declines to namely, that of divorce. The district court was therefore powerless grant plaintiff’s request, and, reason, for the same we powerless are to do so.”
The action was for maintenance is divorce as evidenced her in her testi mony she definitely indicated she did not desire divorce and the lower forcing court was in error accept a form relief of which did which she not seek and she did not desire. 21-136, “Though
Section R.C.M. reads as follows: denied, judgment may, divorce the court its dis cretion, divorce, provide in an action the maintenance any children, them, by or wife and husband.” definitely This out point scope statute seems the courts’ authority and nowhere the Montana Civil Code can there be authority courts any permitted, by found wherein the are sta tute, grant only separate a divorce where maintenance is sought. statutory general applic rule of construction able, express it being that where there is an mention of certain authority, mentioning implies it the exclusion of Stephens City Falls, other. Great 119 Mont. Compare *5 414 (2d) 408; Statutes, 333, paragraphs
175 C.J.S., Pac. section 670; 244, 245, 246, para- Jur., Statutes, Am. sections graphs 238 to 241. 21-103,
An examination of section R.C.M. discloses divorces, separations absolute or from bed and board or decrees reasons, separate maintenance, may granted for for certain be nothing suggests but there is in that section which the court may grant beyond sought by pre- relief which for vailing party. Weil, 37 Cal.
Respondent contends that the cases of Weil v. Greenwood, (2d) 770, (2d) 159, Greenwood v. Pac. persuasive support in App. 101 Cal. Pac. are legal in both of those premises that he advances. However prayer to amend the cases the wife consented being thereby entered for absolute consented to a decree divorce. weight authority we overwhelming with the
Consistent in an power grant that the has no relief hold district court separate sought by granting an action wherein maintenance absolute divorce. legislature adopting R.C.M. apparent policy
The of the 21-136, discourage the incautipus section was to granting give and in doubtful cases to court of divorces destroy the authority separation rather than to grant a being that re marriage, the reason for this vinculum the may accomplished by legally sep parties be conciliation passions and permitting thus their arating them for time important for further and more prejudices to subside and marriage children, any, resulting if from reason that must foremost the court’s consideration. come recognized under methods imposed the has legislature and at matrimony are consummated bonds of which those under which imposed the methods has time it the same some read into the statute For us to may terminated. be bonds judicial amendment in effect a be not there would thing that is us. committed to authority has been Such thereto. origin ancient is one of A maaintenance separate suit for none, find authority, and we statutory can find but unless we discretion use their power gives to the courts which must follow relations, then we disposition domestic their predecessors. our laid down general rules have been 32.04, section Divorce, supra, again from Nelson on Quoting actions maintenance and “Proceedings page 368: nature, in their directly are similar are related and divorce *6 of the foundation marriage in that the relation constitutes extin- relation case, dissolution of the action in each and the the action. subject forms the basis of guishes the matter which differs from object divorce action hand, the of a On the other in that the former proceeding a maintenance marriage extinguish is relation an action to dissolve duty pre- is except support obligations in so far as the its ali- payment of by provisions requiring served the decree rights parties of the mony, property to determine the as well as mar- and fix the status of minor child or children in affirmance of the mar- riage, proceeding while the latter is a obligations respect in to the riage relation and to its enforce marriage. support during of the wife the continuance of marriage rela- contemplate termination of the It does not a tion, but a thereof.” continuation by saying that the evidence question
The second can be answered such that she wished discloses needs were only prior her station as it existed to restore herself to of life marriage question. Taking in into account the de to the here ability plaintiff’s right pro to be provide fendant’s to and the his for, judge generous think the was with vided we district plaintiff anything but The record discloses that result. and, consequence helpful pursuits of defendant enterprises ability his activity, defendant’s business stormy marriage, obviously were, during earn the course lessened. evidence propriety of certain regarding question
The assignment of error. objection is frivolous admitted over which, if it been judge below admitted such evidence had prejudicial. here, But given jury, may to a have well been its upon admission, said counsel that introduction its he bearing upon reached and would have no the conclusion he obviously it quite did not. cross-examining for defendant Fred Reed when asked
Counsel of and elicited from Julia Reed information that she did divorce, not want an and both counsel for the defendant absolute acquiesced in the that the and the fact action was separate maintenance. space mat- given dissenting opinion
Much in the other wholly appeal. ters irrelevant to this In this connection suf- say perfected appeal fice to that Julia Reed and Fred Reed brought cross-assignments to us no error and hence is no position complain, complain, and his counsel does not about respect the court’s policies. action with to the insurance Judgment good is reversed and for cause shown ease proceed remanded with directions to with the accordance stated, upon upon views herein either the record as now made or party may such further evidence as either desire to submit. DAVIS, concur. MR. ANGSTMAN JUSTICES *7 ADAIR, (dissenting). MR. CHIEF JUSTICE Reed, a by plaintiff, Julia from decree appeal This an defendant, Fred Reed. a from the C. granting her divorce 1946, Butte, Hotel in Mon- at the Finlen It was on October Pond, and the defendant tana, plaintiff, then Julia first met. Fred C. Reed in stage singer
At that time Julia was on the a concert in making apartment her in rented light opera and home a retail Beverly Hills, California, and Fred was a successful president principal and and owner of both auto dealer Company Anaconda, Montana, and the. North Motor Reed Jerome, Company Idaho. Side Motor by Pond whom Abbott S. then the wife of one Julia Fran- husband of one daughters she had and Fred was the two their withstanding by whom he ces Reed had children but not fell obligations immediately respective Fred attachments and she, presumably, for Julia for him. and to the middle During period from October did April each other and and Fred saw much of Julia Utah, traveling Montana, in together considerable and about money gave Nevada, and elsewhere. Fred Julia California gave right along 1947 he a car. and March her Pond, and, In time obtained a divorce from Abbott Julia S. early April of Fred’s union with Frances Reed was dissolved a decree of divorce. from than
No sooner was he freed his union with Frances off, post Nevada, where, Fred haste, Yegas, took for Las April 17, 1948, marriage his to Julia Pond was solemnized. appears This marriage have been of a somewhat cash carry proposition for, very outset, agreed at the Fred with pay stipulated monthly Julia that he would her substantial cash allowance and that in addition he pay thereto would all monthly living bills and accounts their household and expenses.
At the start such per $400 allowance was month this sum regularly paid Fred until when, there came a time because greatly adverse business conditions and obliga- his increased tions, outlays expenditures, Fred, in an attempt to make meet, it necessary ends found to cut Julia’s cash allowance to per paid $300 which sum regularly month he her each every month until month of December when Julia commenced this suit. Fred, married
During the time she was Julia continued keep apartment in Beverly and maintain her rented Hills month, stipulated as she received cash each allowance bank Fred, from would forward same to a she California deposit private checking in her account which she there Arlington.” name of carried in “Julia marriage Julia, bought Following his Fred home new *8 Tammany, Anaconda, This located at No. Montana. home $18,000 was of the placed estimated value of and Fred the title Julia, jointly. completely thereto in his name and that of Fred wholly furniture, furnishings outfitted this home with new appliances $12,000. and at estimated cost of precedent As a condition to the first mar- dissolution of his riage entered property Fred into a his settlement with then wife, Frances, alia, which, payment by inter called Fred stipulated monthly to Frances of a sum in installments $500 each until to continue the amount called for fully agreement paid. settlement was The divorce decree there- required after entered that Fred Frances further sum pay alimony. per permanent $250 month Thus was Fred obligated wife, pay Frances, first month per $750 his and pay Julia, wife, making his second month a total per $300 $1,050 outlay cash for such items month. every each In fall and as a of his matrimonial en- result tanglements obligations, Fred finan- found himself in dire straits, greatly impaired cial with his credit and numerous pressing creditors him from all testified:' “I sides. He bills, payment embarrassed at the for the of our demands put I her to dis- wanted to on cash basis an effort [Julia] * * # get payment $300 continue the because of the mess indebtedness, her on a basis down some of cash and cut on pay up but she would one bill then make for it with other bills, up I states and keep but couldn’t with her three I coming put from-—-I never knew where these bills were tried to basis, impossible her on a cash but it was because bills coming kept in from all over.” such involve- part financial
In of October the latter quarrel following precipitated a heated and difficulties ments instituting this preparatory retained counsel which Julia Fred 7, 1951, being week after had one suit. November On $300, counsel Julia’s allowance paid Julia November give addi- home that he Julia out of the Fred ordered Fred, and, compliance with such orders money tional *9 November handed Julia the further sum of and $200 cash removed family whereupon, himself from the home on Decem- ber Julia commenced in the of Deer district court Lodge County, Montana, this suit.
Restraining Order day December of the On of filing of the parte, the district court issued ex and served, caused requiring to be its order the defendant to show cause, day a certain, why required, during he should not be the pendency action, of the pay $1,000 Julia sum to of employ prosecute counsel action, plus $1,000 the sum of per month support for her maintenance, plus $300 for expenses costs and of her requiring suit and further the de- fendant husband “why enjoined to show cause he should not be from selling, transferring, restrained assigning, or other- wise disposing of, and mortgaging, hypothecating from or other- encumbering wise or disposing any money property or whatsoever kind or nature belonging to the Plaintiff and/or Defendant, why enjoined he not should be restrained and from residing in' visiting or occupied by residence now said Plaintiff, visiting and from said residence until the further order of this Court.”
The order required further that until the court’s further order the attorneys, defendant and his agents and servants “desist and refrain from transferring, assigning or otherwise disposing property belonging to the Plaintiff and/or the Defendant” and ordered the defendant husband re- “to ** * main out of the occupied by residence Plaintiff, to desist and refrain visiting from residence, the said and from molesting or interfering with said Plaintiff.” January
Order 1952. On January 1952, following hearing had on the above order to show cause of December 22, 1951, the said district court made and caused to be entered an (1) Pay order that the defendant: to the clerk of court per $450 plaintiff’s month support for and maintenance court; (2) until further order of the pay all house- expenses including payments, taxes, hold house light, electricity,
heat, etc.; (3) $1,000 for fees pay to clerk of court plaintiff’s attorneys; (4) transportation first class pay Idaho, for three in the witnesses from their residences State of (5) for the City Anaconda, Montana; pay to and from the meals including maintenance of said the cost of their witnesses Hotel, during in an appropriate place, the Montana such as necessarily Anaconda; (6) spent by time them “shall until further husband order court the defendant payments continue make the hereinabove ordered.” grant power trial court’s this order came from make 21-137, 1947, applicable second R.C.M. sentence of section only to when “the pending action for maintenance *10 ’’ wilfully allegations but, husband the wife under the deserts plaintiff’s complaint, the it did from power must and come ‘‘ 21-137, applicable pending to a action first sentence section for divorce”. complaint
Complaint. alleges: The plaintiff Julia Reed’s Plaintiff, of the complains “Now comes the named above Defendant, action, alleges: plain- I. That the and for cause of been, of the Mon- tiff and has a bona resident State of fide year immediately preceding tana for more than one the com- of this mencement action.” II. complaint alleges, inter alia:
In substance the further plaintiff in the Ne- That intermarried State of defendant April have been husband and vada and ever since marriage; IV. wife; III. That of the no children were born has as a husband the defendant disregarding his duties That this: That cruelty plaintiff, toward in guilty of extreme been guilty been past last defendant has year more than a for giving* without numerous occasions upon leaving their home and his com- his whereabouts any explanation plaintiff verbally and believes been informed ; plaintiff has panions that company keeping with months has been defendant, for several Doe; that and Jane namely Doe, Helen Del Doe women, other unknown, being de- occasions, dates the exact upon numerous bodily and serious inflict violence has threatened fendant injuries upon plaintiff; that on or about October Lodge County, Montana, Deer plaintiff the defendant struck with his fist and knocked her from the seat to the floor of his inflicting upon injur- plaintiff automobile severe bruises and dangerous health; ies to her V. life and that at no time plaintiff has condoned defendant’s treatment of her or single cruelty upon act her inflicted defendant. allegations complaint
The are sufficient to state a cruelty cause of action for grounded divorce on extreme under the provisions 21-134, of R.C.M. section 21-103 subdivi- sion 21-106, proven, and if plaintiff would entitle the a decree of divorce. alleges, further inter alia: YI. That defend-
ant is an able controlling bodied man and a stockholder of Company Reed Anaconda, Motor Montana, at the North Company Side Motor Jerome, at Idaho, and has an annual in- come in excess $20,000; that has not sufficient means pay attorney’s with which fees, costs of this suit and for her support; maintenance and pro- that “Defendant vided Plaintiff with most life, of the necessaries of addi- thereto, gave tion said Plaintiff the sum of Three Hundred Dollars ($300.00) per personal month expenses; during part the latter early part October or the of Novem- ber and in view separation, of their gave said Defendant Plaintiff the sum of ($500.00) Five Hundred Dollars for her up 1951”; personal expenses to December reasonable *11 plaintiff sum support $1,000 to be allowed for the of herself per month; attorney’s fees, $1,000, and for court costs expenses procuring witnesses, and including traveling of ex- penses for from Falls, certain witnesses Jerome and Twin * * * Idaho, $300; expressed “VII. That has defendant the disposing property intention of of certain of the said for the rights purpose defeating of and claims thereto of * * * * * to, will, that said Defendant intends and unless * * '* carry restrained from the order of said Court out such * * * intention and threat and reason of the facts * * * Defendant, representatives, bankers, his attor- agents, neys servants, enjoined and from should be and restrained selling, transferring, conveying, assigning, otherwise encum- or bering any any all or part property removing said of the or same jurisdiction from the of this Court.” prayer is:
“1. may That said separate apart she live and from De- ; fendant permanent
“2. alimony That sum Thousand of One ($1,000.00) per Dollars paid month secured to her for be and maintenance herself: * * * granted enjoin- “3. That an Order Pendente Lite be * * * ing and restraining repre- the said Defendant and his sentatives, agents, bankers, sell- attorneys and servants from * * V ing, transferring, conveying, encumbering assigning or * * * removing or from jurisdiction all or of said part property; requiring “4. That this Court make an order said Defendant
* ** security providing give to reasonable maintenance making any payments re- support for the of Plaintiff or for * * * quired * * * required pay Defendant as counsel fees “5. That be to * * * * * * * * * Plaintiff Thousand behalf of One Dollars * * * as and the further sum of Three Hundred Dollars costs * * * * * * expenses maintaining and for witnesses action That further “6. Plaintiff have such relief Court may just equitable.” seem answer cross filed an
Answer. The defendant Defendant’s answer admits the complaint. above I, II III designated com- paragraphs averments VI thereof admits paragraph the averments plaint and as to Company in the Reed Motor interest has an defendant prior sepera- Company “and that Motor North Side Defendant, pay he did Plain- Plaintiff and tion ($300.00) per month Hundred Dollars Three sum of tiff the *12 up obligations paying to aid her in that had contracted” she paragraph but denies of allegations each and all the other said VI, supra; allegations paragraph denies the VII and denies generally plaintiff’s allegations each and all the of the com- plaint specifically admitted. Complaint. complaint
Cross The defendant husband’s cross alleges:
“For a Cross-Complaint, the named Defendant com- above plains Plaintiff, alleges: and for cause of action
“1. That the Plaintiff is and has been a bona fide resident year immediately of the State of (1) Montana for more than one preceding the commencement of action.” this
In substance the alleges, cross further alia: inter plaintiff 2. That and defendant intermarried in the State April 17, Nevada and ever since have been wife and husband; 3. marriage; that no born of children were 4. that in disregard total of her marital and duties vows a wife plaintiff cruelty guilty wife has been extreme toward and treatment plain- toward defendant in this: That tiff grievous upon has inflicted suffering mental defendant a course of existing conduct toward and treatment of defendant persisted in for a period year of one before commence- ment of this justly reasonably action which of such nature and destroy peace character as to happi- of mind and ness entirely proper defendant and legiti- defeat objects mate of marriage, and to render a of the continuance married parties relation between perpetually unreasonable defendant; that at intolerable to all times defendant has conducted himself toward true, dutiful and husbandly regardful manner and even has been of his marital never, time, given plaintiff relations and has at any excuse provocation kindness; him in any or to treat than in manner plaitiff’s year course treatment within preceding filing has of this action been such as was calculated to and upon defendant pain, suffering, anguish it did inflict mental defendant; injury dangerous to the life at no or time lias defendant treatment of him condoned *13 cruelty any single upon by plaintiff. act of him inflicted allegations complaint The the to state of cross are sufficient a cruelty under upon cause of action for divorce based extreme provisions 93-3415, 21-134, 21-103, the of R.C.M. sections and, 21-106, proven, subdivision and if entitle the de- would fendant husband of to decree divorce.
The prayer complaint plaintiff the answer and is that to cross nothing by judgment take her action and that defendant have ** * matrimony “1. against plaintiff: That bonds of the dissolved, they that between the Defendant Plaintiff and and be marriage, that the and each of them be freed from and said single person. be And Defendant restored the status of a ’’ may just equitable. for such other and further relief as be and Reply. By complaint the reply the defendant’s cross 1, 2 designed of allegations paragraphs admits the allegations para- complaint 3 of the and cross and denies graphs 4 and 5 thereof. presented by complaint,
The The Issues. so issues answer, plaintiff’s reply to the cross the cross and September May 1952 to the complaint were tried and in large judge sitting jury district without a amount of evi- and introduced, conflicting' dence was much of which most confusing. nine 2, 1952, judge made and filed the trial
On November findings fact and two conclu- written numbered separately findings. such of law based on sions findings six the first taken as to exceptions were No trial court’s timely exceptions to plaintiff filed of fact but IX to the two conclu- VII, VIII and findings numbered request for additional together with of law sions exceptions. be on her based findings and conclusions 4, 1953, on June December was heard on matter con- findings fact and original its amended trial court findings and conclusions to which amended of law clusions excepted. party neither
Findings fourth, fifth, court’s seventh Fact. The findings ninth of fact so made recite: prior
“IV. marriage That Plaintiff and Defend- ant, parties previously each of the had married and di- been vorced, once; Plain- the Plaintiff twice and Defendant tiff is the mother four mar- children, the issue of her former riages, children, Defendant father of two marriage; issue of his former all at- of said children have majorities. tained their
“V. That parties background the children of the are in the of some of the difficulties that parties, occurred between the factor, and this combined arising with difficulties out of finan- matters, cial resulted in that for than year more one immedi- ately preceding action, the commencement of the Defend- this grievous ant suffering Plaintiff, by inflicted mental upon the *14 a toward, course of conduct and Plaintiff, treatment of the justly which and reasonably of such a and nature a char- destroy peace acter as to the happiness of mind and of the Plain- tiff, entirely and objects proper legitimate defeat the and of marriage, and to render the continuance of the marriage rela- tion between the Plaintiff the Defendant un- perpetually reasonable intolerable to Plaintiff; the allegations that the of said conduct contained in Complaint true, Plaintiff’s are and the Plaintiff is entitled to a Decree dissolving of Divorce marriage the relationship existing between her and the Defend- * * * ant. Plaintiff, prior “VII. That the marriage to her to Defend- ant, professional singer, was a and is now without means to support herself; maintain period reasonable her by Defendant, the adjust be maintained and for her to her- again position self and be in a support herself, to maintain and years, is five and a her reasonable amount for maintenance and during period support per $250.00 such sum the of month. Plaintiff, “IX. pleadings That the the and evidence intro- by parties, duced both establish that the Plaintiff is entitled divorce, dissolved; parties and that the marriage of the be
that the Defendant Divorce as entitled a Decree of prayed for in his Cross-Complaint.”
Final 6, 1953, Decree. On was entered final decree June (1) dissolving (2) ali- marriage; awarding plaintiff mony fifty-three months; per $250 a period month for (3) requiring that monthly payments such be made to court; (4) pay- clerk of requiring that defendant secure such by depositing for the with the plaintiff, ments benefit of the clerk of policies court three enumerated of insurance on de- naming plaintiff fendant’s life with thereon endorsements beneficiary (5) requiring that on or before thereof and day the 10th of each shall file with the month defendant monthly substantiating clerk that the of court evidence the fact upon policies paid. premiums due the said have been her served and filed plaintiff On December wife appeal judgment. from the decree and notice above plaintiff by the entered herein aggrieved herself decree deems monthly (1) alimony $250 It instead because: allows her fifty- $1,000 sought; (2) alimony it award to a her limits period remainder of her life month instead of for the three terminating marriage rela- (3) it grants a divorce continuing tion than a maintenance rather decree of relieving her only, but the wife of marriage status in name cohabit with her husband. obligation to January 6, 1954, the On Contempt Citation Conviction. in the court her made and filed district Need Julia contempt punished for be cited and defendant motion accusatory affidavit supported she motion which court *15 the defendant was that as of date deposed she wherein in by trial court payments ordered in the delinquent per rate annum. On at the interest $3,275 plus sum 6% charges the defendant was cited so made motion plaintiff’s contempt 1954, adjudged in 27, he was January and, on County was, by Lodge such sheriff of Deer trial court custody defendant into and to take to ordered adjudication,
427 Deer, “hold him custody County in county jail Lodge in the until purges he contempt himself of this court.”
Thereafter, stipulation of respective parties counsel for the 2, entered April 1954, into on agreed that in it was order to purge the defendant Fred contempt, C. Reed of defendant day would pay plaintiff’s attorneys $1,000 to of which $500 go would to plaintiff, stenographer the court $300— apply plaintiff’s on transcript appeal plain- on $200 attorneys tiff’s April 11, and that 1954, on defendant would pay the additional $750 sum of and continue pay on the day 11th of each month $750 thereafter the sum of until plaintiff paid is her alimony up to date, and the steno- court grapher is paid on the transcript full, appeal and the amount due attorneys paid full and thereafter promptly day on the 11th month, of each the defendant will pay the provided $250 sum of in the decree divorce from appeal being which the taken. transcript on the appeal typewritten consists of four
volumes containing pages 913 separate and fourteen specifica- tions of urged. error are
The principal that, contention is under the pleadings, trial court lacking discretion, authority jurisdiction to render or enter its decree granting a divorce.
There was no or divorce maintenance at common law. 27 C.J.S., 69, 12-15, Divorce section
428 Carle,
v. 584, Troutt, 149 Va. 35 670, 673; 140 S.E. Troutt v. App. Tenn. 617, (2d) 372, 250 S.W. by
As was Appeals said York in Cald the Court of of New well Caldwell, v. N.E. “In supra 146, N.Y. 81 :64] [298 only matrimonial such actions, the of this have courts State powers English as by are The upon conferred them statute. law relating part to such of ecclesi actions constituted a country astical and and has not of the that common law of Hence, by adopted [Citing never been State. this cases.] power sepera Supreme judgment of the of grant Court to tion of support support for maintenance the wife this solely statutory for the law of child from the is derived State.” matrimonial power
It well of courts in established terms entirely are to be upon matters determined Emery Emery, 122 Mont. conferring jurisdiction. v. statutes Rump- Rumping v. 201, pages (2d) 251, 264. Also 223, 200, see L.R.A., N.S., 1197; 1057, 12 Sell ing, 39, page 36 Mont. Shaw, 122 561, 562; Shaw v. 329, pages Sell, Mont. (2d) 514, 525. pages Mont. that, the time our fore- of the fact at
“This is so because
England,
neither
them the common law
brought
fathers
with
they
matters;
jurisdiction in such
equity
or
had
courts of law
** * The
by
courts.
exclusively
the ecclesiastical
being handled
therefore,
territory,
provided for
assembly
legislative
first
recognized
are now
divorce,
grounds
which
actions
as well as those
only
proceedings,
applying
to annulment
granting
alimony,
both
provided for the
proper, and
divorce
State ex rel.
in all such actions.”
temporary,
permanent and
522, 189, chap-
Court,
page
57 Mont.
at
v. District
Wooten
The nature of suit relief that the wife’s and given be allegations therein are be determined from the and to complaint statements of ultimate in her facts set forth and not naming from the or labelling pleading. of such * * * practice, plaintiff required Under “modern is not give his name, labeling cause of action a and ** unnecessary has improper characterize it been held *. “* * * and, pleading under a code the character right recovery to he al are determined the facts from leged, regardless given pleading. So, the name if the action, in a pleading give pleading facts stated a cause of sufficient, though inaptly Emphasis sup is it named.” even plied. C.J.S., Pleading, *18 general
It ais rule of pleading plead- character of a ing determined, is to be given it, not from the its title but from allegations. In all pleading cases the court accord- considers ing legal to its effect and its determines character without reference to the it title bears. part pleading prayer no of the or cause of action stated. way sufficiency pleaded.
It can in no affect of the matter enlarge sought by limit allega- It nor the relief can neither complaint. McDevitt, 61, v. 36 tions of the Donovan Mont. Stanton, 494, 502, 254 65, page 49; page 92 Rohr v. 78 Mont. Co., 374, 869; Fergus page v. Motor 80 Mont. 260 Blackwelder 459, 734; Murray Creese, 453, page 1051; 80 Mont. 260 First v. Conner, 229, 85 page National Bank v. Mont 278 here, consequence where, joined, issues are It is of little 630, In 112 prayer Chope, there is at all. re Cal. whether 1066; Co., App. 44 Hoffman v. Pacific Coast Const. 37 Cal. page Burnaham-Hanna-Munger Dry 776; Goods 125, page 173 Co.
431 Hill, 347, page 62; v. 17 Vulcan Iron Works N.M. 128 Scott v. Co., Or. 334, Hamakar, 31 122 40 page 186; Okl. Rutenic v. 444, 196; 67 page McDevitt, supra. v. Donovan sufficiency by
In short the is measured by prayer. of fact it averments contains and Samuels Singer, (2d) 545, page 1098, page v. 1 Cal. 37 App. (2d) 1050; Co., Equity State ex rel. Coan Plaza Elevator v. 65 N.D. 658, N.W. 46. (cid:127) judicial Pleadings are the the court with means invest jurisdiction. Every complaint should be on some def- founded legal theory inite upon must allege and it the facts which such theory is based. This rule essential to foundation of issues just and to intelligent trial of causes. In Taintor, St. page John v. Mont. ‘‘
this court ’Pleadings said: distinct issue are essential every system orderly of jurisprudence, and can be no there justice allege administration of party without them. If a can one cause of upon another, action and then recover his com- plaint will serve no useful purpose, but rather to ensnare mislead adversary.’ his Bank, Southwick v. First Nat. 84 N.Y. 420; Romeyn Sickles, 698; 108 N.Y. 2 Thompson N.E. Trials, sections 2252.”
That thoroughly counsel were familiar with above of pleading rules is evidenced the care and caution they approached with which cause, the trial of this for at the very prior outset and the calling witness, of their first coun- sel judge familiarity first tested the trial his as to with the pleadings presented thereby. and issues following
The record shows proceedings opening at the trial, viz.: Meyer: your I assume that honor is “Mr. familiar with the this pleadings matter! I
“The am. Court: *19 these Meyer: being now, “Mr. You don’t insist on read Mr. Knight! Knight:
“Mr. No. may proceed.
“The Court: You Meyer: Reed, (Julia “Mr. Reed. We will call Mrs. in own herein, Plaintiff stand called the witness and, fol- behalf, being duly sworn, gave testimony as she first lows.)
“Q. your you name, please? Will state “A. Julia Reed.
“Q. You in A. Yes. are Plaintiff this action? Tammany. “Q. And you where do live? A. 1614 “Q. In city? what A. Anaconda.
“Q. Well, A. long you How have in ever lived Montana? here married, years we since have been about four —that’s in and down Idaho.
“Q. Your been for more than one residence in Montana has year prior time Yes. to the this suit was started? A. Reed,
“Q. any, you to What, if relation are Fred C. I Defendant in this action? A. his wife. am “Q. A. were you When and where were married? We Vegas April 17, in 1948. married Las “Q. subsequent your marriage you together, And lived you? did Yes we A. did.” only plead the essential plaintiff properly Not did
Proof. prescribed by 21-134, at supra, ultimate facts but section very first the trial she was the witness to take start of and, proof opening testimony, supplied stand in her she allegations paragraph of her com- supported the first plaint paragraph those of the first of defendant’s also complaint requirements section compliance with the cross 21-135, supra. plaintiff’s complaint and pleaded in properly
The averments proof and the introduced at the cross defendant’s clearly parties are sufficient warrant by each of trial parties both the relief to granting either or trial court respective pleadings under their they may be entitled which Co., 31 Mont. Bowery Min. Merk proof. page
433 (2d) chapter 287 Munroe, Wash. In Munroe v. on divorced parties were is said: “When the page at it the other.” granted a divorce 18, 1950, each was December from (2d) Cal, App. Thompson, Thompson v. As was said in circum- “Under the (2d) 932, page 933, chapter 288 at whether or stances, it trial to determine was for the court De granted a divorce. parties should be either or both of the (2d) chapter 250 (2d) 858, 873, Burgh Burgh, De 39 Cal. v. chapter 598; (2d) Phillips Phillips, Cal. (2d) 527, chapter 926; Mueller, 44 (2d) Mueller v. Cal. chap- (2d) [142], 287 (2d) 869; Gilmore, 45 Cal. Gilmore v. ter 769.” instance
Priority Julia’s and At the second wife Preference. if it trial decree despite court’s and the evidence before security preference for the sustained would award Julia and Frances, alimony enjoyed by de- of her award not collection spouse. fendant’s first plaintiff, exam-
At trial the action the cross it that ination, testified she believed on October always thought that it she and defendant first met and “he life, I his and he thing was such a wonderful came into very devine, you I if that, thought and that was know told me from what I mean.” When asked if that condition continued 1946 to 1948 the testified: get him his divorce and many years for
“Yes, I waited him, I had I believed and it started and me that was he told love, my his and integrity, and in love in his great faith thing very devine very wonderful it was a thought I —he change in him. came and kind until very good was so a married time he was “Q. you knew at that And separated his I that he was from ? A. knew man, you not did a divorce—he told me that contemplating he was and that wife any bearing on the case. was, has if that he A. Yes. you he was married? “Q. Then knew you married when met you the same time were “Q. And at my separated from husband for I had been Yes, A. but him? years didn’t know that know where he was didn’t —-I I again would ever see him find- up hopes came with the —I * * * ing him in Montana
“Q. your That was at being reason for in Montana you time met Mr. A. Reed? Yes.
“Q. you get Did State a divorce from Mr. Pond here of Montana? placidly A. The divorce rather was started peacefully. I brought attorney He his New York and from an attorney here, had and we went into our difficulties *21 very nicely out, ironed suitable and quite them and it was satisfactory to both of us.
“Q. You had no trouble? A. No. “Q. in you And that was met Mr. Butte? A. when Reed Yes.
“Q. At A. negotiations? time of Yes. the these other “Q. during When was that? That that time—I A. met him on the 2nd of October.” early April 1948 dis- stated the decree entered in
As before spouse, Frances, obligated first solving union his Fred’s with permanent alimony as and pay per him month $250 to Frances the fur- agreement obligated pay him to Frances settlement the until amount called for sum of each month $500 ther April 17, fully paid that on agreement was so such settlement wed, of such ob- Julia knew 1948, when Fred and Julia were discharge meet and required would be to ligations which Fred light of facts Julia could every month. In the these each and union with Fred reasonably expect her more recent that wise, duty, under the decree any him of his would in relieve monthly install- agreement, pay to Frances the settlement and reasonably expect due, nor Julia they became could ments as priority upon support should have Fred for that her claim seize that the courts of this state would that Frances or over of and property plaintiff’s benefit all of Fred’s impound the means and thereby utterly depriving Fred of security, obligations Frances. prior his incurred ability to meet adjudged that found, ordered and the trial court However monthly alimony payments defendant secure the for the bene- fit by depositing of defendant of the district with the clerk court en- policies three enumerated life on defendant’s with naming beneficiary dorsements thereon plaintiff as the thereof assigning interest providing policies ali- be enforceable of all installments extent mony remaining unpaid of defendant’s death and event security forbidding the or offering accepting policies as during loans to defendant period insured time in they hypothecated monthly which security are for the alimony payments adjudging and further on or before 11th day of each month the defendant shall file with the clerk of the district court substantiating evidence the fact that monthly premiums upon policies due three paid, said have been policies being: life insurance so enumerated United America, States of k Insurance, Policy Government Life No. 712 932, in the $10,000; amount of Prudential Insurance Com- pany America, Policy $2,000 No. the amount of Prudential Company America, Policy Insurance No.
in the $5,000. amount of Policy. power jurisdiction
Federal Statute —Public subject legal process the state district de- court *22 policy fendant’s United States War Risk Life Insurance the proceeds public to be derived policy therefrom involves the of 1924, the nation as declared in War Veterans’ World Act of 607, amended, 43 Stat. 38 section 421 et seq., U.S.C.A. which non-assignability exemption makes from execution and from granted the claims of creditors attributes the insurance of there- chapters 607, 613, 22. Tompkins under. 43 Stat. section v. 217, (2d) 890; 132 38 A Yake v. Tompkins, Yake, N.J.L. 170 75, 555; McSpadden, D.C., (2d) Md. A. Robertson 46 183 v. F. 702; Lippi-Lipski States, App. 202, v. 55 Von Der United D.C. (2d) States, Cir., 4 168. United 3 Compare F. Lewis v. 56 F. (2d) States, 175, 274, 270 46 563; White v. United U.S. S.Ct. 14 530; Christensen, C., (2d) 70 D. F. L.Ed. Christensen v. 475. 436 Kaufman, 808, chap-
In 210 App. (2d) Kaufman v. 93 Cal. (2d) 29, 31-33, ter pages at said: the court pursuance “War Risk Insurance is a contract of made Federal Statute and must with reference such be construed statute, regulations promulgated thereunder, the the de applicable by thereto, cisions than and decisions rather laws governing private companies. States, United Sternfield v. D.C., 789, solely 32 (2d) F. 790. is The insurance contract only between the rela Government the insured and the tions of him. contract are between Government and White the al., 274, 46 70 175, 180, v. United L.Ed. States et U.S. S.Ct. 530; D.C., 703, Barton 704. In States, Supp. v. United F. case, latter it Supp. page 705, 75 F. held that the Na at was 1940, tional Life Act sections 801- Insurance U.S.C.A. 818, is a powers granted constitutional exercise of the to Con gress, citing I, 8, U.S. Constitution Art. section clause supreme land, Congress and as such is if so willed. law of the 6, Id., Mayo States, U.S., 441, Art. In United clause v. 1137, 761, S. Ed. 147 A.L.R. Ct. 87 L. it that: government was held ‘Since the United States is a delegated may throughout powers, none of which be exercised by state, necessary uniformity any the Nation one is it any laws of those of the United States be dominant over dominancy required state. Such is also to a breakdown of avoid through possible from arising administration conflicts incon requirements. supremacy sistent clause Constitution principle. corollary VI. A states this essential Article that the principle this is activities Federal Government are free competing from enactments or regulation by legal principles state. No other is possible.’ adjustment * '* [*] property agreement settlement “We conclude policy proceeds question, Chil- assignment an chapter (2d) Chilwell, App. 40 Cal. well terms of assignment prohibited 122; an that such U.S.C.A.], supra, Statute, 454a there- section Federal [38 * * * beneficiary. against defendant fore not enforceable
437
and bene-
payments
454a
provision
section
“The
exempt from taxation
fits
or to become due are
due
equitable
subject
legal or
creditors,
and are not
claims of
title to
Congress
to control
intended
process indicates that
payment.
and after
both before
payments
such
and benefits
recog-
have been
of the section
provisions
This
and the
control
Supp.
States, D.C., 75 F.
Barton v. United
nized
enforced.
59
S. Ct.
705;
Bryant, 306 U.S.
Carrier v.
In cited is Barton v. United [75 Supp. : 705] insurance, proceeds of title to of service
“Federal'eontrol both before and after consistently recognized and enforced. payment by * [*] * Government, has been ad- or their authority is of state laws “It settled ‘the a na- may carrying out ministration with the interfere supra, (James Sadrakula, & purpose.’ tional v. Stewart Co. U.S. [94] at page 60 S. Ct. [431] at page [84 L. 596].)” Ed. A. Tompkins
In v. 132 N.J.L. Tompkins, 891, 892, it said: due, benefits,’ noted, ‘payments
“As or become due legal nonassignable beyond are of creditors and the reach receipt or the bene- equitable process, either before or after * * * ficiary by the assignment policy provisions “These forbid the surrender, contractual and, well, curtailment or insured beneficiary. policy otherwise, right change his or this a measure economic regard to afford of the statute dependents. general de- Its security and their for servicemen of disabled veterans sign provide system is to ‘a relief’ disability died as result dependents of veterans who * * * 422. military section service. 38 U.S.C.A. suffered disability’ of ‘against permanent total It death or issues * * * ‘far-reaching The act has Ibid, the insured. section Patryas, States United plan purposes.’ national *24 341, 551, 553, U.S. 58 Ct. 82 pro- S. L. Ed. 883. Insurance vided would otherwise be unobtainable in indi- numerous eases, vidual and at a rate It profit devoid of the element. regard (United issues ‘without applicants’ to the health of Patryas, supra); States v. and thus there is substan- accorded recognition tial military in service and naval forces means that will public also conduce to the essential interest. The benefits against of the statute are improvidence secured and diversion from their purpose support basic and main- tenance in urgent time of liberally need. And the act is to be construed favor of public its policy beneficiaries and the thereby served.”
Under the federal statutes the state district court was denied the right, authority jurisdiction order, adjudge to or de- cree the involuntary endorsement, im- assignment, seizure pounding of United defendant’s States War Risk Life Insur- policy ance and the finding trial court’s amended of fact No. I, its amended conclusion of law No. Ill and its final decree attempting subject to such policy United States Government to legal process of the trial court are void as violative of the cited federal statutes.
The two Prudential Company policies Insurance issued on defendant’s life personal were property. Title thereto was in the defendant They husband. property and were his plaintiff. that of Emery Emery, 201, In 122 (2d), 264, v. Mont. 200 Pac. ‘‘ community
this said: Montana- court has no property law and the statutes of this power upon state have conferred no in an court action for divorce to divest the title of the husband property to real specific personal adjudge or and to or order involuntary assignment an or transfer thereof wife.” Thrift, 272; To like Thrift v. effect see Mont. Pac. Rufenach, 293; (2d) Rufenach v. Mont. 185 Pac. Shaw Shaw, 593, 611, 613, v. 122 Mont. Pac. 514. As to the proceedings separate rule maintenance see Decker v. Boggs Mont. 185 Pac. Decker, 56 (2d) 869, 119 Mont. 177 Pac. Boggs, show action complaint allegations The allegations of defendant’s a Likewise the be suit for divorce. Thus action for divorce. cross state cause of two causes judge definitely trial had before him evidence, believed, if action sufficient for divorce and discretion, to either grant a sound divorce exercise of or or parties. personal both desires of either the wife of but husband as to the relief that was to be decreed were trial judgment given little moment for the was for the be judge irrespective of it should meet with to determine whether *25 approval unqualified party. the of either Ratcliffe, In v. 308 14 Ratcliffe Mich. N.W. that the the court observed courts not with are concerned
personal parties desire of divorce actions and whether or a should be divorce from bed and or absolute must be de- board light public termined in the policy of the state and the the parties that, best interests of the and held “The character of the decree entered in such matters ‘rests the sound dis- cretion of the court.’ Sullivan, Sullivan v. Mich.
N.W. 487.” Ex Chapter
Fair Trial Law. Laws of Section of Second Trial traordinary 1903, commonly Session known as Fair a of 1895 Law, section 21 of the Code of Civil Procedure amended concluding (now concluding adding thereto a sentence the “In 93-216) provides: which sentence of R.C.M. section equity cases, proceedings equitable of an in matters supreme questions all fact nature, the court shall review record, presented arising upon the evidence in the whether specifications particulars presented by which same be not, alleged evidence to be insufficient or and determine unless, good cause, same, questions law, as well as taking of further in the be new trial or the evidence court ordered; herein provided, nothing low shall be con be abridge, strued to manner, powers supreme of the court in other cases.”
In Finlen Heinze, 354, 380, Mont. 80 Pac. this statute, court held the 93-216, supra, now section as amend- ‘‘ * ** ed, to be constitutional and then said: requires This act us to review the presented facts as record, in the like and under statutory provisions it quite generally held that appel- late court can either judgment render a itself, or direct what proper judgment shall be entered in the trial court.”
The record before this court is most exhaustive and re- vealing. It shows parties together lived but three years, six days. months and four party Since then each has gone his and her separate way. own More than a quar- four and years ter elapsed have since commenced this suit. Dur- ing all of this time the hostilities have continued unabated. The district judge who presided throughout trial case and gave who and rendered final judgment therein has recused himself. If another trial it is had must be before another district judge. marriage The definitely was and is and irretrievably broken down. prospect There is no of recon- ciliation. No children are involved. marriage has been of brief and turbulent duration. All pertinent facts are now before appellate court aon most exhaustive record after a long drawn out and expensive most trial in the district court. permanent To decree separation without divorce would tragedy, add to the parties condemn the celibacy, to enforced *26 turn them out neither single, prevent married nor each from again marrying and wreck and ruin their lives. portions
Those of the trial findings court’s of fact, con- judgment clusions respecting, of law and concerning or re- lating policies to the defendant’s three life insurance should vacated, stricken, policies be set aside and should be or- —the dered returned and redelivered to the defendant owner forth- and, modified, as trial with so court’s decree should be af- firmed.
441 (dissenting). BOTTOMLY: MR. JUSTICE in the above dis- agreement am in with and concur I full Justice Adair. senting opinion of Chief alleged constituting facts complaint the has In her his the de- for divorce and in cross a cause of action of ac- alleged sufficient to state a cause fendant has also facts granted such party Whether either is to be tion divorce. upon sufficiency proof offered depends relief support allegations pleaded. support charged to
There no desertion or failure to husband in this case. supplied es- proof
Where substantial credible has been allegations pleaded, it then within stablish all the essential judge the sound discretion of the trial as to whether a decree granted. of divorce or one of maintenance shall be Lingner Lingner, 525, (2d) 749; 165 56 Rohloff v. Tenn. S.W. Rohloff, 507, 509; v. 224 v. (2d) Wis. 11 N.W. Stefan Stefan, 152 (2d) 918, Neb. 39 920. N.W.
Where,
here,
recon-
appears
possibility
there
no
Ky.
Coleman,
ciliation
granted.
divorce should be
Coleman v.
1954;
(2d) 730,
737; Lingner
Lingner,
269
page
S.W.
at
v.
supra; Clyburn
38; Hud-
Clyburn,
v.
175 Ark.
299 S.W.
Hudson,
(2d)
Experience
son v.
36
Neb.
N.W.
taught
usually prefer-
has
the courts that in such cases it is
grant
Phillips,
able to
135 Neb.
Phillips
an absolute divorce.
v.
313,
We have nature over before us a of an jurisdiction appeal. which this court has R.C.M. sec- tion 93-216. jurisdiction retain it having will equity secured
A
court
Sup
complete relief. Continental
awarding
purpose for the
254, 269,
(2d) 569;
Mer
Pac.
White, 92 Mont.
v.
ply Co.
Watson,
Mont.
Pac.
Corp. v.
Assur.
hcants Fire
Co.,
Gas
Mont.
Consolidated
617;
Reickhoff
*27
60,
568,
(2d) 1076; Epleveit
Solberg,
45,
Pac.
v.
Mont.
(2d)
722.
Pac.
Lowry
392,
Carrier,
As was said in
v.
55 Mont.
177 Pac.
entirety
us,
we are
“The evidence
its
is before
93-216],
authorized
section
R.C.M.
section
[now
its
Codes,
dispose
merits.”
Em-
Revised
the cause
phasis supplied.
Ostronich,
Also see Bosanatz v.
57 Mont.
204,
In this case the evidence was substantial and sufficient judgment marriage trial dissolving warrant court’s limit period the contribution for maintenance to the of time adjudged and, suggested and amount with the modifications dissent, judgment in the Justice’s should be Chief such affirmed. MONTANA, STATE OF FRAN Plaintiff Respondent, Appellant. STROBEL, CES Defendant No. 9540. Submitted June 1956. Decided December 1956. Rehearing denied December 1956. 304 Pac. notes page 630. Such sui proceedings generis. are Caldwell, Caldwell v. 298 146, (2d) N.Y. 81 60, 64; Shively N.E. v. Shively, 88 Ohio App. 7, (2d) 276, 95 N.E. 282; v. Todd Policemen’s & Fire- Fund, 14 Super. 508, men’s Pension N.J. (2d) 235; 82 At. Dunnington 324 Dunnington, v. 847; Mass. 87 N.E. (2d) Reeve, v. App., (2d) 804, Reeve Mo. 160 S.W. 808; Wright v. Wright, 350 Mo. (2d) 870, 873; 165 S.W. State ex rel. Rodgers White, App. (2d) v. Mo. 781, 782; S.W. Finnell, Finnell pages (2d) 401, 402; v. Idaho State Couplin Hostetter, ex rel. (2d) 1; v. Mo. S.W. Nield, 126 Va. Nield W. 28 S.E. 825, 826; McCotter
Notes
section notes 50 and chapters 183, 184. alleged question is whether the are such as to The vital facts Holding Equitable Equitable relief. Co. v. justify judicial 202 Minn. Ass’n, N.W. Building & Loan “A 21-134, provides: divorce must not 1947, section R.C.M. granted be plaintiff unless the has the state been a resident of year for one next preceding the commencement of the action.” R.C.M. 21-135, section provides: can “No divorce be granted upon the alone, default of the the cause defendant but must be open court, heard in require proof court must ’’ alleged. all the facts provisions The above jurisdictional of the Code are in actions By divorce. prevail reason thereof to in an action for di- vorce, it is essential that allege both in her com- plaint prove by the evidence at the trial introduced plaintiff has been a year resident of for at Montana least one preceding next the commencement of the action. Proceedings for marriage sep- the annulment of a or for arate are subject maintenance quoted to the above resi- requirements dence govern which for divorce. In the actions suing case of a wife for an annulment marriage of a or for separate maintenance her residence immaterial. It need not alleged. be proved. It need not be Such has even been the law, procdure practice jurisdiction. in this