Kendrick v. Kendrick , 188 Mass. 550 ( 1905 )

Boring, J.

The appellants contend that the decree of divorce obtained by the deceased in Texas in 1884 is void for lack of jurisdiction. Their first ground in support of this contention is stated by their counsel to be that the domicil of the wife at the time of the divorce was in Massachusetts, and she might have obtained a divorce in Massachusetts from her husband at the time when he obtained a divorce from her in Texas.

The single justice found that Bethiah and her husband were married in Massachusetts in 1851 and lived in this State as husband and wife until 1872, when they moved to Benton Harbor in the State of Michigan; that they lived there for two years and a half, and both became domiciled there; that on the expiration of this two years and a half they came back together to Edgar-town, Massachusetts, temporarily, in search of work for the husband, but their domicil remained in Benton Harbor; that after a few months the husband returned to Benton Harbor, leaving his family in Massachusetts, and after remaining a short time in Benton Harbor sold out his business there and went to Texas, where he took up his residence and went into business; that the move to Texas was “ a bona fide change, undertaken in the hope of bettering his condition, and without any intention, so far as appeared, of deserting or abandoning his family. Neither, so far as appeared, was there any intention on his part to abandon or desert his family when he went back to Benton Harbor from Edgartown. After leaving Benton Harbor for Dallas he did not send his wife any more money, his excuse being that he needed all the money he had to start himself in business. He wrote to her that he was going to Dallas, and wrote to her once or twice after he got there. She replied and wrote several letters, to which she received no answers, and then let the correspondence drop. She remained in Edgartown until forced, for want of means and by the sale of her household goods on execution, to leave and return to her mother, which she did. After remaining with her mother a short time, she came with her daughter to Boston, where she has since lived. I find, if it is competent, that after Kendrick went to Dallas, with the exception of small sums sent occasionally to the daughters, he did nothing towards the support of his wife and family. They supported themselves as they were able, by needlework. There was contradictory evidence admitted de lene as to whether Kendrick ever requested his wife to come to Michigan after his return to Benton Harbor, or to Dallas, after he went there. I find, if competent, that he did not. But according to her deposition, which was read in evidence, Bethiah B. Kendrick testified, and I so find, that she did not want to go back to Michigan, though there was nothing to show that she told her husband so, or that he knew it. It did not appear whether she would have been willing to go to Dallas, if requested by him to come. I find that Kendrick acquired and had-a Iona fide domicil-in Dallas from the time that he went there in 1875 until his removal to Yarmouth in this State in 1893. In 1884 he filed a petition for divorce from his wife in the District Court for the county of Dallas in Texas. The petition was under oath, and alleged among other things that his wife had abandoned him without any cause, and had remained absent from him with the intention of never living with him again and refused to live with him. There was some testimony, consisting of declarations of Kendrick, tending to show that this was so. What the actual facts were, if competent, I am unable to determine.”

To establish a right to a separate domicil for the purpose of divorce under R. L. c. 152, § 5, or otherwise, the burden is on the wife to prove a delictum by the husband. In this case the wife had to prove that her husband deserted her and not she her husband. This the wife failed to do. For the purposes of this case, therefore, her domicil must be taken to have followed that of her husband, and was in Texas at the date of the divorce granted to her husband. See Loker v. Gerald, 157 Mass. 42; Burtis v. Burtis, 161 Mass. 508.

The second ground of the appellants in support of their contention that the Texas court had no jurisdiction is that the name of the wife was Bethiah and in the libel for divorce and notice she is called Bertha. The judge who heard the petition found “ that she was addressed as Bertha by her husband and that she was known by that name to some extent, though it did not appear that she was so known outside the family. I also find that the court had before it a copy of the marriage certificate in which the name of the respondent was given as Bethiah, that no fraud or imposition was practised upon it in respect to the name of the respondent, and that the person from whom the court intended to grant the divorce was the petitioner Bethiah B. Kendrick. I also find that, if there was any error in the name, it did not appear that any one was misled, or, taking all the circumstances into account, would have been misled by it.”

We interpret the qualification with which the first finding ends to mean that the plaintiff did not introduce direct evidence that Bethiah was known as Bertha outside the family, and not to mean that she was not so known outside the family. The finding therefore is a finding that, in the .family at least, she was known by both names.

We are of opinion that this is a finding that she was known by both names within the rule applied in Commonwealth v. Gale, 11 Gray, 320; Gifford v. Rockett, 121 Mass. 431; Gillespie v. Rogers, 146 Mass. 610; Commonwealth v. Seeley, 167 Mass. 163. See in this connection State v. Dresser, 54 Maine, 569.

Decrees of Probate Court affirmed.