Hopkins v. Hopkins , 35 N.H. 474 ( 1857 )

Fowler, J.

It is very clear, from an examination of the provisions of our statutes relating to divorces, that all the causes of divorce alleged in the present case are such as must continue for three years next immediately preceding the filing of the libel, in order to entitle the innocent party to a decree annulling the marriage contract. The injury to the party is the three years’ continuance of the alleged cause of divorce, and that injury must have occurred to the party injured while her domicil was in this State, or else this court has no jurisdiction of the case. Where a cause of divorce must have existed continuously for three years next preceding the filing of the libel, in order to entitle the party petitioning to a decree of divorce, the libel should distinctly allege, and the evidence prove, the continued domicil of the party in this State during that entire period. In the present case, it is not shown that the libellant had her domi-cil in New-Hampshire during any portion of the three years. Indeed, her actual residence is proved to have been at Fitchburg during the last eighteen years, with the exception of a temporary visit of seven weeks to Chesterfield, in the fall of 1856.

But, it is contended for the libellant, that if the husband’s residence were in Rindge, of which there is some evidence, the wife’s must constructively and in contemplation of law have been there also. We do not think this position can be maintained. When the husband abandoned his wife, necessity of separate and independent existence gave her a separate residence and domicil, and when he came into this State, leaving her in Massachusetts, her domicil remained there with her, and there it still continues.

In Payson v. Payson, 84 N. H. 518, it was held that, where the husband deserted his wife in Massachusetts, and himself remained there, but she afterwards came to this State to reside, and supported herself by her own labor, she acquired a domicil here; and having continued her residence here more than three years next preceding the filing of her petition for divorce, the desertion, which was alleged as the cause of divorce, was considered to have arisen and continued for three years in this State, although the husband was never actually within the limits of the State.

In the case before us there is no pretense that the injury to the libellant can have continued more than seven weeks in this State, and it is therefore clear, under the statute, that the court have no authority to decree a divorce.

Libel dismissed-.