Ross v. Ross , 103 Mass. 575 ( 1870 )

Chapman, C. J.

It is provided by Gen. Sts. c. 107, § 12, that, with certain exceptions, not applicable to this case, no divorce shall be decreed for any cause, if the parties have never “lived together as husband and wife ” in this- state.

We think the true interpretation of this provision is, that they must have had a domicil here, and not merely lived together as travellers passing through the state, or as visitors for a purpose that is merely temporary, or not with intent to acquire a domicil. The remedy is intended to be for the benefit of our own citizens, and not to enable the court to dissolve marital relations existing between citizens of other states, neither of whom has ever had a domicil here. Harteau v. Harteau, 14 Pick 183. Shaw v. Shaw, 98 Mass. 158. In Calef v. Calef, 54 Maine, 365 a similar interpretation has been given to a statute of Maine substantially like ours, though differing in its phraseology.

While these parties were in this state they did not acquire a domicil here; and the intention of the husband to acquire one depended upon a contingency that never happened.

Libel dismissed. ^*

* A similar decision was made at September term 1870 for Hampden, in the case of

Caroline L. Fansler vs. Newton O. Fansler.

Libel for a divorce from the bond of matrimony for the cause of adultery alleged to have been committed at Cleveland in Ohio by the libellee, who was defaulted. The case was heard by Wells, J, and reported for the determination of the full court on these facts :

“ The parties were married in September 1866 at Westfield, where the libellant had previously, and until that time, resided with her father. The libellee was then, and ever since has been, a resident of Cleveland in Ohio, engaged in business there as a trader. Directly after the marriage, they spent several weeks together, at the house of her father in Westfield and elsewhere in Massachusetts, before going to Cleveland to reside; and at several times since have been for short periods in this state; but never with any intention of making their joint residence in the state. In May 1869, the libellant abandoned her husband, in consequence of information of such misconduct on his part as justified her in so doing, and of his neglect towards herself. She then returned to Massachusetts, where she has ever since remained, living in Westfield with her father. Her husband has since continued to reside at Cleveland until the present time. In September 1869, after her return to Westfield, he committed the offence of adultery at Cleveland, upon which this libel is founded.”

Upon these facts, after argument by W. O. Bates for the libellant, the Court ordered that the Libel be dismissed.