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In McDade v. McDade, 16 S.W.2d 304, 305, the Texarkana Court of Civil Appeals said: "In view of the classification for judicial decree as made by the statute, the term `suit for divorce' as used in article 4631, was intended to specifically relate and have application only to the same class of actions denominated `divorce' in the meaning of divorce of a valid marriage for causes arising after marriage.
Summary of this case from Janelli v. JanelliOpinion
No. 3639.
April 11, 1929.
Appeal from District Court, Harrison County; P. O. Beard, Judge.
Suit for divorce by Freeda L. Beitman McDade against Paul L. McDade. From the judgment, plaintiff appeals. Reversed and remanded.
The appellant brought the suit for divorce against appellee, her husband, and has appealed from the judgment of the court. The case is sufficiently set forth in the findings of fact and conclusions of law of the trial court, which are as follows:
"The plaintiff filed this suit in the District Court of Harrison County on August 2, 1928, against the defendant, alleging that plaintiff and defendant were married on the 25th day of July, 1928, and continued to live together as husband and wife until on or about the 27th day of July, 1928, when by reason of the natural and incurable impotency of the defendant when discovered by the plaintiff for the first time she immediately left his bed and board and has lived apart from him, praying for a decree declaring the marriage state or contract to be nudem pactum on account of the natural and incurable Impotency of the defendant.
"Both the plaintiff and defendant are bona tide inhabitants and citizens of the State of Louisiana and have never been citizens or resided in the State of Texas. Marriage license was issued for their marriage by the Clerk of the County Court of Gregg County, Texas, and they were married in Longview, Gregg County, Texas.
"The plaintiff alone testified, as alleged in her petition, that on or about the 27th day of July, 1928, she found out that the defendant was impotent and entirely unable to perform the relations of a husband and she immediately left him.
"The defendant has waived the issuance and service of citation and agreed that said cause might be tried in the District Court of Harrison County without further notice to him."
"Upon the above state of facts I conclude that the plaintiff is not entitled to annulment of the marriage or the relief sought in the District Court of Harrison County, Texas. The fact that they came to Texas and secured their license and were married in Texas and immediately returned to Louisiana, their home, and continued to live in Louisiana give the courts of Louisiana jurisdiction of the cause of action. I therefore hold against the plaintiff upon her cause of action and deny her the relief sought, for the reason the court holds he has no jurisdiction."
Hall, Scott, Casey Hall, of Marshall, for appellant.
The assignment of error is: "The court erred in holding that he was without jurisdiction to try the cause and determine the issues therein."
The marriage license was issued and the marriage ceremony was performed in Texas. Although both the plaintiff and the defendant were nonresidents of Texas, yet the defendant voluntarily entered an appearance in the suit. In such facts no insuperable bar appears against the court's exercising jurisdiction to try the cause on its merits, unless article 4631, R.S., reveals the legislative intent of prohibition against the exercise of such jurisdiction by the court because the plaintiff had no actual bona fide domicile within the state at the commencement of such suit. Article 4631 reads: "No suit for divorce shall be maintained in the courts of this state unless the petitioner for such divorce shall at the time of exhibiting his or her petition, be an actual bona fide inhabitant of this state for a period of twelve months, and shall have resided in the county where the suit is filed for six months next preceding the filing of same."
In view of the classification for judicial decree as made by the statute, the term "suit for divorce," as used in article 4631, was intended to specifically relate and have application only to the same class of actions denominated "divorce" in the meaning of divorce of a valid marriage for causes arising after marriage. The statute has made the classification for judicial decree, viz.:
"Article 4628. The marriage relation may be dissolved where the causes alleged therefor shall be natural or incurable impotency of the body at the time of entering into the marriage contract, or any other impediment that renders such contract void, and the court may decree the marriage to be null and void."
"Article 4629. Except where the husband or wife is insane, a divorce may be decreed in the following cases: [Here follow five distinct causes arising after marriage, of ill-treatment, excesses, adultery, desertion and felony conviction.]
As will be observed, there is a distinction between the annulment of the marriage relation for antenuptial causes and "a divorce" for postnuptial causes. In the former the marriage is declared to have been voidable or void from the beginning. In the latter the marriage, valid from the beginning, is declared terminated for the subsequent misconduct of one of the parties. It is in accord with an established fundamental principle of government that the courts of a state have no jurisdiction to decree a divorce upon postnuptial grounds between parties who have actual bona fide domicile in another state. 19 C.J. p. 26; 14 Cyc. p. 584. That principle does not extend and include annulment of the marriage upon antenuptial grounds. The same reasons and considerations for limiting the jurisdiction of the courts do not exist. The propriety of a judicial determination of the invalidity of a marriage seems obvious. The fact of nullity is merely made a matter of record which cannot be disputed.
The case of Schneider v. Rabb, 100 Tex. 211, 97 S.W. 463, reviews the wording and the history of article 4631. In that case it was determined that the term "divorce" as used in the article was intended to relate to the particular class of actions provided for in article 4629. While the present wording of the article is in a way different from the wording at the time of that decision, yet we think the same construction should be given.
The judgment is reversed, and the cause is remanded for trial.