Suter v. Suter , 72 Miss. 345 ( 1894 )

Woods, J.,

delivered the opinion of the court.

This is an appeal from, a decree of the court below alio wing-alimony and counsel fees pendente lite, in proceedings instituted by a wife for divorce from her husband for desertion.

From the bill filed by the wife, and from her evidence offered in support of her application for alimony and counsel fees, it is perfectly certain that the home of the husband is in New Orleans, La.; and the domicile of the husband is that of the wife. From the same sources of information, it is clear that, shortly after the return of the husband from Biloxi to his business and home in New Orleans, he invited the wife to join him in their home in that city; that she was urged by Mr. Clarke to return to.her husband and home, and declined to do so except upon condition of her. husband’s ¡Dlácing the title to the home in their joint names, in order to prevent any sale of the same by the husband without her consent; and that, in September, 1890, the husband wrote the wife, stating his inability to bear the double expense of their -living separate, and calling her attention to her former refusal to go to New Orleans, where he was compelled to remain to make a living, and urging the wife to come to him with their children.

In his sworn answer, the husband states his efforts to hare the wife return to him and his home, and avers his willingness to receive her now.

It is a mistake on the part of the wife when she declares that her homestead is in Biloxi. Her domicile is that of her husband, and his is in New Orleans, and she cannot, to suit her convenience or pleasure, create a home distinct from her husband’s, by refusing to reside in the domicile of his choice.

There is nothing in the case, as made by the wife, which constitutes this an exception to the general rule just announced. We have been unable to see any reasonable ground, suggested even by the wife’s own showing, why she should not return to her husband’s home and hers.

That the husband has sold the residence property in New Orleans since her refusal to return to New Orleans is of no concern whatever. The ownership of a residence property is not a prerequisite to the selection of a domicile and the establishment of a home.

On the wife’s showing, her bill and her application for alimony and counsel fees are a fraud upon the jurisdiction of the court.

Reversed.