Reed v. Reed , 30 Pa. Super. 229 ( 1906 )

Opinion by

Orlady, J.,

It was held in Middleton v. Middleton, 187 Pa. 612, that in cases like the present one it is incumbent on the Supreme Court, and now on this court, except where there has been an issue and a jury trial, to review the testimony and adjudge whether it sustained the complaint- of the libelant, and, that the rule generally applicable to proceedings before the master or an auditor, that a finding of fact will not be disturbed except for manifest error, is not applicable. In every case in •which the appeal is from a decree not based on the findings of a jury from testimony produced and the finding had in open court, under the instructions of the judge as to the law, the court is to take up, analyze and review the testimony. Therefore, of whatever drudgery the court of original jurisdiction may relieve itself in this class of cases by the appointment of an examiner, neither it nor we can escape the burden of a careful consideration of the evidence to ascertain if it does in very truth establish the statutory grounds of divorce.

The parties to this action were married February 22, 1900, in Brooklyn, N. Y., at which time both were domiciled in that state. The husband was a life insurance agent, and evidently from business engagements or other reasons he did not remain at one place any definite period. They first went to live at South Amboy, N. J., where they remained about six months, then to Newburgh, N. Y., for about a year, then to Brooklyn, until November 17, 1902, when the libelant left her husband because of his ill treatment. A child was born December 7, 1901, which the mother took to Baltimore, Md., where the child was received by the father of the respondent, and has been since then kept and maintained. The wife came to Philadelphia in December, 1902, and on May 6, 1904, filed the libel in divorce on which this action is founded. The subpoena issuing thereon was served personally on the respondent on May 12, 1904, in Philadelphia. On July 20 a master was appointed, who caused a notice to be served on the respondent in Baltimore, Md., reciting the causes for divorce as set out in the libel, and that by reason of his default in not filing an answer the case had been referred to the master, who would take testimony in the case in his office in Philadelphia on October 12, 1904 ; the respondent did not appear in court, nor before the master and, pursuant to the notice, the testimony of the libelant, with that of the other witnesses, was taken. The master participated in the investigation, filed his report with all the testimony and recommended that the prayer of the libel-ant be granted, especially certifying that he was satisfied by personal inquiry that the residence of the libelant in Philadelphia was correct and bona fide, and that she had resided in the county since- December, 1902. The learned court below dismissed the libel for the sole reason that the bona fide residence of the libelant, within the meaning of our divorce laws, had not been established.

An examination of the testimony, which is before this court in the same manner that it was before the court below, discloses a persistent refusal on the part of the husband to furnish food and clothing since their marriage, and necessary medical attendance during the wife’s pregnancy and subsequent illness ; he made a number of personal assaults upon his wife and accompanied them with abusive and vulgar epithets, showing such a depraved course of conduct as justified her in leaving him to avoid further violence and risk of life.. She was not obliged to remain in the state of New York. Being thus suddenly cast on the world and obliged to earn her own living, it was not unreasonable that she should move from the community where she had friends and acquaintances, who knew of the domestic troubles and of her former life under more comfortable conditions, to seek a new environment. She selected Philadelphia, because she had there some sympathetic relations, to secure employment as a nurse and companion, and fixed upon that city as her future domicile. She testified : “ I intend to make this my home. I have made this my permanent residence.” This, positive declaration, accompanied with her residence there since December, 1902, brings her clearly within the statutory requirements so as to give the court jurisdiction of her cause and make a decree in her favor if the evidence is believed, and is sufficient under our decisions.

Some criticism is made by the court below of the lack of proof as to her daily life, business relations to the people, and acquaintances' since coming to Philadelphia. When the evidence submitted is competent, pertinent, positive and uncontradicted, it is but just that it should be taken as establishing the facts in regard to which the testimony is directed. If it is deemed uncertain in degree, the case could be referred back to the master for a further examination along the lines suggested as inadequate.

The special difficulty in such a case is to determine the bona fides of her intention to remain a citizen. Her mere residence, as shown by physical presence, does not throw much light on the subject, and whether she engaged in business, acted as nurse or companion or was not engaged in any definite occupation, were not controlling facts. Her mode of living, whether at rent, at lodgings, or at the residence of employers or friends, was not material if her domiciliary intention conjoined with residence is made out. Ordinarily, there is no fixed period of time necessary to establish a domicile. In divorce proceedings in this state, from 1815 to 1903, the statutes all require as evidence of good intention that there should be a continuous residence within the state for a period of one whole year previous to the filing of the petition for libel.

This is a legislative prerequisite, and when it is definitely determined by competent proof it is accepted by our courts as a compliance with our laws. In the case of a man the conditions accompanying his residence are more easily and certainly determined. Exercising the right of suffrage is held to be conclusive, in many states, of a domiciliary intent: Shelton v. Tiffin, 47 U. S. 163. While holding office; engaging in business of a permanent character; the purchase of real estate with declarations of intention are regarded as the highest evidence that can be submitted on the subject. But proof of the good faith of such intention -is not limited to such a course of life. An invalid wife, without means, fleeing from the neglect and assaults of a brutish husband to avoid physical injury and obliged to earn her own living, could not be expected to furnish proof of so high a degree. However, she is not thereby precluded from the benefits of our divorce laws if she can furnish proof which is a reasonable equivalent. Text-writers and judges regard the question of domicile of a very complex character, depending almost wholly upon the personal intent of the party, so that precedents with their necessary varying facts are but of slight assistance in its solution.

The intention to abandon a former domicile must concur with the intention to acquire a new one : Hindman’s Appeal, 85 Pa. 466. Domicile depends upon no one fact, it may be defined to be a residence at a particular place accompained with positive or presumptive proof of continuing it an unlimited time : Guier v. O’Daniel, 1 Binney, 349. If the intention of permanently residing in a particular place exists, a residence in pursuance of that intention, however short, will establish a domicile : Price v. Price, 156 Pa. 617.

Our laws recognize the right of a wife to establish a domicile separate from that of her husband, when his conduct entitles her to have the marriage dissolved, and this without a judicial determination of the question. It is the only door open for her escape. If she continues to cohabit with him, such conduct is liable to be treated as a condonation of his misconduct and bar her claim to the remedy: 1 Bishop on Marriage and Divorce, sec. 123; Barber v. Barber, 62 U. S. 682; Colvin v. Reed, 65 Pa. 375; Harteau v. Harteau, 31 Mass. 181.

In Lyon v. Lyon, 13 Pa. Dist. Reps. 623, the same learned judge who made the decree in this case reviewed the question of divorce in this state, in an opinion which is a valuable contribution to the law on the subject. His conclusion in this case is based upon the reasoning given in that one. If the testimony of the libelant and her witnesses is to be believed, and there is nothing in this record to justify our discrediting it in any way, the proof furnished by her is sufficient to entitle her to a decree in her favor. She is corroborated, so far as he could do so, by the master, who was satisfied from personal inquiry that her residence in Philadelphia was in good faith, which would seem to supply, what in the mind of the learned judge below, appeared to be lacking in the way of support of her testimony as to her acquaintances and conduct since coming to the city. Under authority of Baker v. Baker, 195 Pa. 407, her testimony did not require other supporting evidence. Coming from a competent witness, and being entirely uncontradicted it was in itself sufficient to justify a decree. The record in that case shows that the respondent was personally served with a subpoena, a rule for a bill of particulars was entered and subsequently withdrawn, and no answer was filed to the libel. His attorney appeared before the master and cross-examined the witnesses examined in behalf of his wife.

The reEusal of the respondent in this case to appear in court or before the master is consistent with his conduct as set out against him in the libel and would not serve as an argument against the libelant unless there is something to suggest collusion between the parties, and there is nothing before us to i'aise a suspicion of such a relation.

Her testimony is direct, positive and uncontradicted and to raise any question affecting her credibility we must go outside of the record. She is corroborated by her mother and two other witnesses, and if a longer residence than one year should be required in such cases it is for the legislature to so declare and not the courts. Her declarations, acts and conduct have been consistent throughout and we are of the opinion that the wife has made out her case under our statutes and decisions. The decree dismissing the libel is reversed and a decree of divorce a vinculo matrimonii with costs is now entered in favor of the libelant.