DocketNumber： No. 40493
Citation Numbers： 222 La. 759, 63 So. 2d 866, 1953 La. LEXIS 1212
Judges： Blanc, Fournet, Hamiter, Hawthorne, McCaleb
Filed Date： 2/16/1953
Status： Precedential
Modified Date： 10/18/2024
.In this suit plaintiff alleges that she has not lived with her husband since about August 10, 1946, a period of two years and more and that she is therefore entitled to a divorce a vinculo matrimonii as provided for in LSA-R.S. 9:301.
From the averments of her petition it appears that plaintiff, Cora Davidson, domiciled in the city of Biloxi, Miss., was married to the defendant, Edward W. Helm, on August 3, 1946, in the City of Gretna, Louisiana, and that' they immediately established their matrimonial domicile in the-City of New Orleans, Parish of Orleans, Louisiana; that' they lived together as man and wife at the matrimonial domicile •until August 10, 1946 when they voluntarily separated and that they have not lived together since that date.
Although he was personally served, the defendant made no appearance in answer to the citation he received and in due time a preliminary default was entered against him. On June 19, 1951, more than three days having elapsed since the entry of default, plaintiff, through her counsel, proceeded to take testimony in order to con-, firm the same. By the note of evidence it is shown that plaintiff had been living in Biloxi, Mississippi, for two years and that her husband was still domiciled in the City of New Orleans at No. 244 South Claiborne Avenue. Plaintiff testified that she and her husband had separated on August 10, 1946, as she had alleged, that they have not lived together since that date, that there-was no community property acquired by them and that they had no children. Proof of the separation and living apart was corroborated by her daughter.
The trial judge took the case under advisement and on June 26, 1951, rendered judgment against the plaintiff dismissing her .suit at her costs. Plaintiff thereupon applied to this Court for writs of certiorari, mandamus and prohibition which were refused because it was found that her remedy, if any, was by appeal. She immediately moved for and was granted this appeal which she perfected and which is presently before us. Her counsel personally argued the case and submitted a brief; defendant has made no appearance.
Plaintiff predicates her claim for the relief she seeks on the -basis of- the. decision of this Court in the case of Wreyford
In that case, the wife who was a resident of Caddo Parish, brought her suit for divorce under the provisions of the •statute against her husband, a resident of Red River Parish, in the District Court ■of that Parish which was also the place ■of the last matrimonial domicile. The ■defense, presented by an exception to the jurisdiction of that court, was based on the proposition that under the terms of the •statute the plaintiff who was prosecuting thereunder had to bring her suit in the court of her residence which was the District Court in and for Caddo Parish and consequently the District Court in and for Red River Parish was without jurisdiction.
It was in rejecting that, contention that this Court pointed to both the substantive right of absolute divorce granted under the statute and the additional permissive procedure granted for the exercise of that right. Under the procedural provisions of the statute it was held that either party to the marriage might sue, either in the court of his or her residence, provided he or she had kept his or her residence therein continuously for two years, or, he or she could proceed under the general practice prescribed by Article 162 of the Code of Practice of suing.the defendant at his or ■her domicile or under the other established practice of suing at the last matrimonial domicile. The Court went on to state:
“We hold that, where the domicile of the defendant, as well as the last ' matrimonial domicile, is in the State of Louisiana, then the plaintiff has the ■ choice of instituting her action for divorce at either place, where that ac- ' tion is grounded on Act. No. 430 of 1938 [Now LSA-R.S. 9:301], or in accordance with the fiat of the Legislature, at the forum of her own resi- • dence.”
As seems to be emphasized in the opinion in that case, the primary purpose of the statute was to create an additional ground for divorce and in adding to the pre-existing law on the subject, the Legislature, foreseeing the possibility of some question arising ■ as to the proper forum because of the very nature of the new remedy it had afforded, specifically conferred upon the party seeking to avail him
The district judge did not assign written reasons for judgment-in this case but we were given to understand by-counsel that he was hesitant to extend the ruling of the Wreyford case and apply it in favor of a party who was no longer a resident of the State but had been living in Mississippi for the past two years. Under the ruling of the Wreyford case, and on the theory on which it is based, we cannot see what difference her being a resident of another State would make. She had acquired the substantive right of an absolute divorce granted under the statute by reason of her continuous living separate and apart from her husband for two years or more and she had the right to enforce it by bringing suit against him in the Court of his domicile or that of the last matrimonial domicile. In this instance, -the Civil District Court of Orleans Parish whose jurisdiction she invoked was the Court of both the defendant’s domicile and of the last matrimonial domicile and was the proper forum for adjudication. There is nothing in our law which prevents a resident of another State from suing a defendant in an action for separation or divorce in this State if the suit is brought in the proper court.
This question was one that arose in the case of Cotton v. Wright, 189 La. 686, 180 So. 487, 488, in an action for separation brought by a resident of Mississippi in the District Court of the Parish of Terrebonne against her husband who resided in that Parish which was also the place of the matrimonial domicile: At the hearing of a rule for alimony,'the defendant excepted to the jurisdiction of the district court of that parish on the ground that plaintiff resided in the State of Mississippi. This Court held that the exception had been properly overruled in the District Court adding:
“Plaintiff and defendant, after their marriage at Jackson, Miss., immediately established a matrimonial domicile in the city of Houma, Terrebonne Parish, in this state. They resided at the common domicile from October 12, 1926, to August 20, 1935, when plaintiff filed her first suit for separation; . and thereafter defendant continued to reside at the matrimonial domicile, and was residing there, when plaintiff filed the present suit [March 12, 1937] in the Seventeenth district court, Parish of. Terrebonne, which is clearly vested with jurisdiction under this state of facts.”
Likewise it can be stated in this case that under the state of facts presented, regardless of the plaintiff’s residence in Mississippi", the Civil District Court of Orleans Parish is clearly vested with jurisdiction.
Satisfactory proof was made on confirmation of default which entitles the plaintiff to judgment in her favor.