Cassen v. Cassen , 211 Ark. 582 ( 1947 )

Appellee was granted a divorce from appellant by decree of June 27, 1946, on the ground of three years' separation without cohabitation, 4381, sub-section seventh of Pope's Digest. That they have lived separate and apart, without cohabitation, for more than three consecutive years prior to this action is undisputed in this record. Appellant did not testify, in the action, either as to appellee's residence in this State, or as to the three years separation without cohabitation, and she offered no evidence in her behalf. It is also undisputed, in my judgment, that he has been a bona fide resident of this State for more than three months next before the decree herein and for two months next before the commencement of his action. Section 4386 of Pope's Digest so provides in this language: "The plaintiff, to obtain a divorce, must prove, but need not allege, in addition to a legal cause of divorce: First, a residence in the State for three months next before the final judgment granting a divorce in the action and a residence for two months next before the commencement of the action."

Appellee was asked on cross-examination the question, "When you left Florida, you came here entirely for the purpose of getting a divorce, didn't you?" and answered, "Not entirely, I intended to stay here." And again he was asked, "If you obtain a divorce in this court, what are your intentions? Are you going back to Florida, in other words?" and answered, "My intentions are staying here and going into the hotel business, as I have prospects of getting one of the hotels here in Little Rock to operate." He had been engaged in the hotel business in Florida prior to coming to Little Rock.

It is undisputed that he came to Little Rock on January 3, 1946. His suit for divorce was filed March 6, 1946, and the undisputed proof shows that he has resided here continuously from January 3, 1946. He has been living at the Gleason Hotel. Shortly after coming here he became a member of the Little Rock Lodge of Elks by transferring his membership in another lodge to this and was at the date of trial an officer in said Elks lodge, being night manager and is regularly employed. He has assisted the U.S. Marshal's office in the handling of prisoners and accompanied Deputy McBurnett on trips to several points in this State, being paid therefor by the Government.

I think this evidence is sufficient, in the absence of any showing to the contrary, that appellee is a bona fide resident of this State and has been for the period of time required by said statute. We have so held in several cases where the showing of bona fide was no greater, if as great, as here. Carlson v. Carlson, 198 Ark. 231, 128 S.W.2d 242; Brickey v. Brickey, 205 Ark. 373, 168 S.W.2d 845; Buck v. Buck, 205 Ark. 918, 171 S.W.2d 939. In the Buck case, last cited, we said: "After a careful review of the record, we think it practically undisputed that appellee was a bona fide resident of this state, within the meaning of the statute (4386, Pope's Digest) at the time he filed his suit, and at the time the decree was rendered. He came to this state on June 20, 1942; his suit was filed August 21, following, and the decree was rendered on November 2, 1942. The suit was filed in the Fort Smith District of Sebastian county. Immediately after coming to Fort Smith appellee established his residence at 717 North 13th street, secured employment and remained in Arkansas until after the decree was rendered.

"We think it clear, therefore, that appellee established his residence within the requirements of the statute."

In the Buck case we quoted from the Brickey case the following: "The ground chiefly relied on for the reversal of the decree here appealed from is that appellee was not a bona fide resident of Benton county at the time of its rendition . . . He testified that he had become a resident of this state, and expected to reside here permanently, a condition which our ninety-day divorce law does not require, it being sufficient under this statute that he was a resident of the state for two months before filing suit for divorce and for one month thereafter before the rendition of the decree. Section 4386, Pope's Digest."

Squire v. Squire, 186 Ark. 511, 54 S.W.2d 281, the case now overruled by the majority opinion, about which more will hereinafter be said, and Carlson v. Carlson, supra, were cited to support the statement above quoted from the Brickey case.

In all the cases this court has held that actual and not constructive residence is essential. We so held when the residence requirement was one year. Wood v. Wood,54 Ark. 172, 15 S.W. 459; Vanness v. Vanness, 128 Ark. 543,194 S.W. 498; Wood v. Wood, 140 Ark. 361,215 S.W. 681. We have continued to so hold in all the cases arising under the statute here involved. The Squire case, supra, so holds, where we held that the plaintiff must be "actually and in good faith a bona fide resident for the period prescribed by the statute." In that case the trial court, while of the opinion that the evidence was sufficient to establish a cause of divorce, dismissed the complaint on the ground "that the plaintiff had no permanent intention on November 4, 1931, (the date she moved to Texarkana) and has no permanent intention at this time of making Arkansas her permanent home." In reversing that holding, by a unanimous decision, we held that the learned trial judge misconstrued the effect of the Act (71 of 1931, 4386, Pope's Digest); that said Act does not provide that the plaintiff must have a "permanent intention . . . of making Arkansas her permanent home." We also said: "The law of divorce is purely statutory, and the General Assembly has enacted the statute under consideration. Whether it be good or bad is not a question for the courts," and so we there said: "Even though she (appellant) moved to this State to bring a divorce suit and had the intention of leaving after the divorce was granted, this would not deprive the court of jurisdiction, if she were actually and in good faith a bona fide resident for the period prescribed by the statute."

It is this holding in the Squire case that is overruled by the majority, as I understand it, and not the holding that matters of divorce are purely statutory. It could not be the latter, because the writer of the majority opinion, to which I subscribed, in Young v. Young, 207 Ark. 36,178 S.W.2d 994, 152 A.L.R. 327, said: "While we as individuals may personally disapprove of the grounds of divorce as fixed by the Legislature and may view with alarm the passage of such a law as the one in question which is tending to make our state a haven for unfaithful spouses, still as judges we must remember that the divorce laws are made by the Legislature and until the Legislature repeals these laws the courts must interpret them in the words and spirit written."

That statement is entirely correct. The courts ought to "interpret them (these laws of divorce) in the words and spirit written." The Legislature has said, in plain and unambiguous language, that the plaintiff must prove, but need no allege "a residence in the State for three months . . . and a residence of two months next before the commencement of the action," and we have construed that to mean actual and not constructive residence. Wood v. Wood, supra. In other words, that the plaintiff must actually reside here, be a bona fide resident for the time prescribed. Divorce being purely statutory, as we are all bound to concede, the Legislature had the power to fix the time of the residence at whatever term it saw fit. For many years a residence of one year was required. In 1931, the Legislature changed the time from one year to two months to bring the action and three months before final decree. Our decision in the Squires case, supra, was rendered November 21, 1932. Since the decision in that case there have been eight regular sessions of the Legislature, and no law has been enacted to change our interpretation of said Act, and, so far as I know, no bill has been introduced in an attempt to change it, and I think the sole power to change the law lies with the Legislature, and that this court has no power to do so. Yet it appears to me that the majority opinion amounts to judicial legislation. It is said therein that appellee "did not evidence by affirmative acts any intention to reside permanently in Arkansas." The Act does not require that he evidence any intention to reside permanently in Arkansas, but only for the time prescribed therein, and the requirement that he evidence an intention to reside here permanently is simply legislation.

The majority opinion states that "by bona fide residence, we mean the same as domicile." While the two terms are often used synonymously, in law they are entirely different. Webster gives the "law" definition of "domicile" as, "A residence at a particular place accompanied with an intention to remain there for an unlimited time; a residence accepted as a final abode; a home so considered in law. Under modern civilized systems, a person's civil status is determined by his domicile." It is then said, "A man can have but one domicile for one and the same purpose at any one time, though he may have numerous places of residence." Citing 37 N.J.L. 492-495. Under the definition of "residence" it is said, "A person's place of residence may or may not be identical with his domicile, though the term residence is ordinarily used and legally construed as merely implying the fact of actual abode without reference to the intent necessary to constitute that abodes as one's domicile." The Legislature used the word "residence" and not the word "domicile," and by holding that they mean the same, the majority opinion has amended the Act by judicial construction or legislation, which the Legislature for 16 years has by its silence declined to do. So, the law of divorce is no longer to be considered "purely statutory," no longer to be interpreted "in the words and spirit written" by the Legislature.

Therefore, I am compelled to dissent from the majority holding. I think the decree should be affirmed. I am authorized to say that Mr. Justice FRANK G. SMITH and Mr. Justice HOLT concur in this dissent.