Sawtell v. Sawtell

W aite. J. This is an application for a divorce, under a recent statute, passed in 1843, authorizing the superior court to grant divorces for habitual intemperance or intolerable cruelty. The statute is made in addition to a former act, empowering the superior court to grant divorces for adultery, and certain other causes, and directs, that the proceedings shall be according to the provisions and mode of proceeding in that act. One of those provisions is, that “ if the petitioner shall have removed from any other state or nation to this state, and shall not have statedly resided in this state, three years next before the date of said petition, he or she shall take nothing by the petition, unless the cause of divorce shall have arisen subsequent to his or her removal into this state.” Stat. 186., (ed. 1838.) This provision, in our opinion, applies equally to both acts. The late statute was passed for the purpose of extending the power of the court, and to authorize it to grant divorces for other causes than those enumerated in the former. The petitioner had not resided in this state three years be [287] fore the date of her petition. She is not, therefore, entitled to a divorce, unless she can bring her case within the latter clause of that portion of the act recited, according to the fair intendment of the law. This, it is claimed, she has done. It is said, here has been a continuing cause for a divorce. Her husband has been habitually intemperate, as well since as before her removal to this state. It is therefore insisted, in her behalf, that she has shown a cause for the divorce arising subsequent to her removal to this state. A fair and reasonable construction must be given to this provision of our law. The legislature surely could never have intended, that a woman living with her husband in another state, might come into this state, and, by showing that her husband has been habitually intemperate, or committed adultery, since she removed to this state, at once obtain a divorce. Such a construction would open a wide door for applicants from abroad. If the parties both become inhabitants of this state, having their domicil here, and then the husband becomes habitually intemperate, treats his wife with intolerable cruelty, or commits adultery, a divorce may be granted, although there has not been a residence of three years within this state. In such case, the husband acts in violation of our laws, and becomes amenable for the consequences. But the husband, in this case, has never resided within this state, since the causes assigned for the divorce, have arisen ; and the wife herself has not resided here three years before the date of her petition. She has, therefore, not brought her case within the fair intendment and spirit of our statutes relating to divorces. And our advice is, that a divorce ought not to be granted. In this opinion the other Judges concurred. Petition not to be granted.