Andrews v. Andrews

SMITH, J.

Defendant appeals from a judgment granting the plaintiff a divorce on the ground of extreme cruelty, and from an order refusing a new trial.

The only assignment of error necessary to a determination of the appeal is that of insufficiency of the evidence to show jurisdiction of the trial court. Defendant, a resident of this state for many years, was married to plaintiff in Illinois on April 20, 1912. Both returned to' this state after the marriage and took up their residence in Clay county in October, 1912. On March 18,■ 1913, a child was born. They continued to reside on defendant’s farm until December, 1914. Acts of extreme cruelty complained •of and conclusively shown by tire evidence and1 findings of tíre trial court were committed during the period of their residence in Clay county. In December, 1914, by reason of such cruel treatment, plaintiff was compelled to and did leave defendant’s home and go to her another’s home in Des Moines, Iowa, aird refused to return except upon condition that defendant retract unfounded charges made by him both publicly and privately against her chastity, and particularly those involving the paternity of 'her child, which defendant refused to do. Plaintiff remained with her mother until February, 1915, when this action was begun.

■It is appellant’s contention that plaintiff was not a resident of Clay comity or of this state when the action was brought, and that under the statute the trial court was without jurisdiction. Appellant invokes section 1, c. 132, Laws 1907, which reads as follows :

“The plaintiff in an action for divorce must have been an actual resident, in good faith, of this state for one year, and of the county wherein such action is commenced for three months next preceding the commencement of said action, except as herein otherwise provided.”

Plaintiff .and defendant had actually resided and lived together 'in Clay county for more ¡than two years before plaintiff was driven from her home by dlefend!anlt’-s acts of cruelty. She did not voluntarily abandon her 'husband, nor her home, nor her actual residence in this state, hut went to her mother’s home, the only place where she might find shelter for herself and ohild, and where circumstances enabled her to obtain work for -their support. She. was fully justified in 'declining to- return to her husband’s home so- long as her%usband persisted in asserting her lack of chastity- and -denying the paternity of her child. No cruelty -could be more extreme toward a chaste, and virtuous wife, and not a scintilla of evidence justified such charges against her. The fact that she remained with her mother nearly a year and a half before instituting tbe divorce action is fully explained by her hope that her husband would change his attitude toward her, and she could return -to her home with some degree of self-respect, and the record, shows that she did not finally - refuse to return to him until she was 'compelled to abandon that hope by his continued refusal to retract his cruel and unjustifiable accusations of unchastity. A spouse who- is compelled by cruel treatment to remove to another state should not be held to have voluntarily abandoned the former actual residence, at least until it clearly appears that the original cause of removal has. ceased to operate, and a new residence has been voluntarily determined upon and acquired. Bechtel v. Bechtel, 101 Minn. 511, 112 N. W. 883, 12 L. R. A. (N. S.) 1100; Duxstad v. Duxstad, 17 Wyo. 411, 100 Pac. 112, 129 Am. St. Rep. 1138 9 R. C. L. 403, § 199.

The order and judgment of the trial court are in all things affirmed.