Payson v. Payson

Bell, J. The divorce-is claimed in this case on two grounds. The statute authorizes a divorce “ when the husband shall have willingly absented himself from the wife for the space of three years, without making suitable provision for her support and maintenance,” and “ when either party, without sufficient cause, and without consent of the other, shall have abandoned such other, and refused for three years to cohabit with such other.” Rev. Stat., chap. 148, sec. 3. The question which arises in the case was left undecided in Frary v. Frary, 10 N. H. 63, with the significant remark of Parker, C. J., that, whether a wife married as well as deserted in another State, might thereupon come to reside here, and avail herself of our laws to obtain a divorce for an offence of the husband committed out of this State, subsequent to the time she came here, is a question which may deserve consideration when a case of that character presents itself. We have carefully examined all the decisions reported in this - State, and we think the doctrine deducible from them is : 1. That no divorce will be granted upon an application by a [520] party who is not a resident of this State, who has not a domicil established here. Fellows v. Fellows, 8 N. H. 160; Clark v. Clark, 8 N. H. 21; Greenlaw v. Greenlaw, 12 N. H. 202; Frary v. Frary, 10 N. H. 61; Batchelder v. Batchelder, 14 N. H. 380. But if a wife is deserted by her husband, and left without a home here, or any provision for her support, and in consequence she removes to a place out of the State to obtain a support, she continues to have a domicil here by virtue of his residence here. Masten v. Masten, 15 N. H. 159. The residence of the libellant in this State at the time of the filing of the libel, must, therefore, be directly and expressly alleged. It will not be enough that the party is described as^of such a place, in this State, by way of addition. Fellows v. Fellows, 8 N. H. 160; Greenlaw v. Greenlaw, 12 N. H. 202; Kimball v. Kimball, 13 N. H. 225; Batchelder v. Batehelder, 14 N. H. 380. 2. No divorce will be decreed for any cause which took plaee out of the State, at a time when the libellant did not reside here. White v. White, 5 N. H. 466; Clark v. Clark, 8 N. H. 21; Frary v. Frary, 10 N. H. 61; Smith v. Smith, 12 N. H. 80; Greenlaw v. Greenlaw, 12 N. H. 200; Kimball v. Kimball, 13 N. H. 225; Batchelder v. Batchelder, 14 N. H. 380. The libel must therefore allege, directly, and in distinct terms, that the libellant resided in this State, and where, during the time when the alleged cause of divorce accrued, either by an averment that the1 parties ever after the marriage resided in this State, or by allegations that the parties resided elsewhere, and at what places, until such a time, and then removed to this State, or that the libellant removed to this State, and that the libellant or both have since resided in this State, and at what places, to the time of filing the libel. Smith v. Smith, 12 N. H. 81; White v. White, 5 N. H. 476; Kimball v. Kimball, 13 N. H. 225. The facts that the parties were natives of this State, or resided here, or were married here, or had relatives or friends residing here, seem to be material in determining the domicil of the [521] party applying for the divorce, and in satisfying the court that the residence was changed to this State in good faith, and not with a mere design to take advantage of our laws relative to divorce, rather than in settling the jurisdiction of the court. And the residence of the libellee seems to be chiefly material in the same point of view. Clark v. Clark, 8 N. H. 21; Frary v. Frary, 10 N. H. 61; Kimball v. Kimball, 13 N. H. 225. 3. If the libellant has always resided in this State, or, having been resident in another State, has taken up a residence here in good faith, and during such residence any act is done, or any course of conduct is pursued by the other party out of the State, which constitutes a cause of divorce, it will be no objection to a divorce, that they occurred in another jurisdiction. Clark v. Clark, 8 N. H. 21; Frary v. Frary, 10 N. H. 61; Kimball v. Kimball, 13 N. H. 225; Smith v. Smith, 12 N. H. 80; Greerdaw v. Greenlaw, 12 N. H. 200; Bachelder v. Bachelder, 14 N. H. 380. Where the cause of divorce alleged consists of a course of conduct continued during a prescribed period of time, as in the case of desertion, or abandonment, it is not material to the jurisdiction, when or where they commenced to exist. Once commenced they continue till the parties are reconciled. The husband who has deserted or abandoned his wife, still deserts and abandons her, within the meaning of the statute, at every moment till he returns; nevertheless, it- may be material to allege and prove when and where these causes commenced, to satisfy the court that they exist without cause, and without the consent of the libellant. Smith v. Smith, 12 N. H. 81; Kimball v. Kimball, 13 N. H. 225. So it is not material when or where a party became an habitual drunkard ; it is enough that he has been an habitual drunkard for three years preceding the filing of the libel. Bachelder v. Bachelder, 14 N. H. 380. It is enough, therefore, that it is alleged that the cause of divorce, if it be a single act, is alleged to have been done while the libellant was an inhabitant of this State ; or if it is a case of [522] continued misconduct, that the wrong complained of has continued during the whole time required to make it a cause of divorce, and to the filing of the libel, during the residence of the libellant in this State. Bachelder v. Bachelder, 14 N. H. 380. In the present ease the causes of divorce commenced in Massachusetts, where the parties were then resident. The libellee there deserted his wife, and absented himself from her without cause, and without making suitable provision for her, being of sufficient ability. He then, without sufficient cause, and without her consent, abandoned and discarded her, and refused to cohabit with her. In this state of their relations, she removed to this State for the purpose of procuring employment, and of earning her livelihood, and has since made her domicil here. _ Being thus deserted and abandoned, she had a right to provide herself a new domicil, separate from her husband. Frary v. Frary, 10 N. H. 62; Kimball v. Kimball, 13 N. H. 225; Masten v. Masten, 15 N. H. 160. This we think is fully established by secs. 4 and 6, of chap. 149 of the Revised Statutes, which provide, that “ if any woman, being the wife of an alien, or of a citizen of another State, shall have resided in this State for the term of six months successively, separate from her husband, she shall be capable of making contracts, may sue and be sued in her own name, for any cause of action that may accrue during such separate residence, may acquire and hold property in her own right, and may have the exclusive care, custody, and guardianship of her minor children, living with her in this State,” &c. If the husband of such woman shall obtain a divorce from his said wife in any court, or tribunal of any other State, or country ; or if a divorce shall be decreed upon application of the wife during such separate residence, she shall be entitled to retain to her own use any property, real or personal, which may have been acquired by, or given, or descended to her during such separate residence, &c. The evidence here tends to show the change of residence in [523] this case to have been made in good faith, and the desertion and abandonment by the libellee having both continued for the entire period of three years, after a new domicil acquired here, constitute good causes of divorce, and a divorce is therefore decreed.