Morgan v. Morgan , 103 Conn. 189 ( 1925 )

Chapter 227 of the Public Acts of 1923 provides that "if the plaintiff shall not have continuously resided in this State three years next before the date of the complaint, it shall be dismissed unless the cause of divorce shall have arisen subsequently to the removal into this State, or unless the defendant shall have continuously resided in this State three years next before the date of the complaint, and actual service shall have been made upon him."

The plaintiff's claim is, first, that the word "resided" as used in the statute, is synonymous with "been domiciled"; and second, that the facts found require the conclusion that the plaintiff has been continuously domiciled in this State three years next before the date of the complaint.

The term residence when found in statutes defining jurisdiction for divorce may or may not be synonymous with domicil. Much depends on the form and substantive effect of the statute, as well as on the context in which the word is used. When the requirement as to residence is a part of the grant of jurisdiction, so that the divorce court stands on the footing of a court of limited jurisdiction, the tendency has been to construe the term residence as meaning domicil, in order that all the conditions, requisite to the exercise of jurisdiction over the subject-matter by a court of limited jurisdiction, may be found in the grant itself.

Our Superior Court does not, however, derive its jurisdiction over the subject-matter from Chapter 227 of the Public Acts of 1923, but from § 5280 of the General Statutes, which confers a general jurisdiction to "grant divorces to any man or woman" for any cause authorized by law.

The general jurisdiction thus conferred is of ancient origin. It was first conferred on the Court of Assistants in 1667, and transferred to the Superior Court when that court was organized to take the place of the Court of Assistants in 1711. A requirement of three years' residence, "if the petitioner shall have removed from any other State or Nation to this State," was first enacted in 1797. Compiled Statutes of 1808, p. 237. These two statutory provisions have come down to us as separate sections of our divorce laws, and it is quite unnecessary to import by construction jurisdictional terms into Chapter 227 of the Public Acts of 1923, which is not a grant of limited jurisdiction, but a limitation on a pre-existing general jurisdiction. When this necessity is out of the way, it seems plain that the requirement that the plaintiff shall have "continuously resided" in this State three years next before the date of the complaint refers to an actual residence and not simply to the maintenance of a common-law domicil within the forum which does not necessarily require any continued residence here. The better considered cases hold that such is the effect of provisions requiring residence for a stated period as a condition of suing for divorce. Jenness v. Jenness,24 Ind. 355; Tipton v. Tipton, 87 Ky. 243, 8 S.W. 440;Pate v. Pate, 6 Mo. App. 49; Michael v. Michael,34 Tex. Civ. App. 630, 79 S.W. 74.

Sawtell v. Sawtell, 17 Conn. 284, seems to assume, though the precise question did not arise, that the statute then in force required actual residence for three years. While it must be conceded that nonresidents may lawfully acquire a domicil in this State for the purpose of obtaining a divorce, we think our statute was intended to guard against possible abuse of that privilege by requiring nonresident plaintiffs to prove not only the establishment of a new common-law domicil here, which might be accomplished without any prolonged residence here by personal presence in this State and the absence of intent to remove elsewhere, but also to prove actual residence within the State continued for three years before the date of the complaint. It is not necessary that the residence should be literally uninterrupted. Morehouse v. Morehouse, 70 Conn. 420,426, 39 A. 516. But the word "continuously" must be given some adequate meaning, and it certainly is not satisfied by the plaintiff's presence in this State "three or four times a year, for two or three days at a time." No doubt some allowance must be made for the exigencies of the plaintiff's business as a traveling salesman, but "there can be no such thing as a ``legal right' to a divorce vested in any married person."Allen v. Allen, 73 Conn. 54, 55, 46 A. 242.

The State allows divorces not as a favor to one party or as a punishment to the other, but for reasons of public policy and only upon the conditions laid down by statute.

We are of opinion that the Superior Court did not err in holding that the plaintiff had not "continuously resided" in this State three years next before the date of the complaint.

It is also almost universally recognized as a prerequisite to jurisdiction of divorce that one of the parties should be domiciled in the forum at the time when the action is commenced. In the absence of a statute expressly dispensing with that necessity, no court of one of our United States would be likely to assume jurisdiction to alter the marital status of a husband and wife, who were domiciled in another sovereign State. In the case before us the Superior Court has not adjudged that the plaintiff had acquired a domicil in this State at the date of the complaint. It is said in the memorandum of decision filed by the trial judge, which is made a part of the finding, that "especially in view of the fact that the plaintiff has been made a voter here and has given up his voting privilege in Seneca Falls, it might well be considered that Hartford was his legal domicil." The finding, however, is that the plaintiff has never registered or voted in Connecticut "until this fall," meaning the fall of 1924, and the complaint is dated April 14th, 1924; so that the most significant act indicating an intention to acquire a domicil here, as distinguished from a residence, did not occur until several months after the commencement of the action.

It is also elementary that the former domicil persists until a new domicil is acquired, and hence proof of the acquisition of a new domicil of choice is not complete without evidence of an abandonment of the old. Plant v. Harrison, 36 Misc. 649, 655,74 N.Y.S. 411, 415. By this test also the finding fails to require, or to justify, the conclusion that the plaintiff had acquired a new domicil here at the commencement of the action, for up to the time when he applied to be made a voter in Hartford, the plaintiff's conduct evidences no intention to abandon his former domicil at Seneca Falls, where he still owns a summer cottage where most of his personal effects remain, and which appears to be his "home," in so far as he has one.

The memorandum of decision, to which we may refer for this purpose because, as already noted, it is made part of the finding, recites the relevant facts and then states the issue as follows: "Can a traveling man, having no former ties, business, family or social, in Connecticut, by maintaining a room in Hartford and occupying the same for very brief periods, at irregular intervals, and declaring his intention to make this his legal residence, the only important motive of his change of residence being the more liberal divorce laws of Connecticut, be held ``to have continuously resided in this State three years next before the date of the complaint'?" We have answered that question in the negative, and we may add that, on the facts found, he cannot be held to have acquired a domicil in Connecticut, at or before the date of the complaint, because there is no finding, and no evidence which would support a finding, of an abandonment of his former domicil in Seneca Falls prior to that date.

From the fact that the Superior Court was without jurisdiction to hear and determine this action of divorce, it follows that it had no jurisdiction to make any order as to the custody of the child. Dunham v.Dunham, 97 Conn. 440, 117 A. 504.

We are of opinion, however, that the court did have jurisdiction to make the orders for an allowance and for an additional allowance to defend. Such orders are made in divorce actions because the interest of the State requires that the defendant wife should have full opportunity to present her version of the facts; whether that may lead to a judgment on the merits or to a dismissal of the complaint for want of jurisdiction, the public interest is served.

The motion for allowance to defend in this court as appellee may be addressed to the Superior Court.

There is no error.

In this opinion the other judges concurred.