Opinion
No. 4851.
Argued September 8, 1960.
Decided October 4, 1960.
1. The authority to grant separate maintenance is wholly statutory (RSA 458:31).
2. It is essential under the statute authorizing the granting of separate maintenance (RSA 458:31) that in order to qualify as misconduct which is, or if continued will be, a cause for divorce, the misconduct must have occurred or must be in the process of accruing into a cause for divorce while the plaintiff is domiciled in this state.
3. Hence where the evidence warranted the finding that the plaintiff was not domiciled in this state at the time of the filing of a petition for separate maintenance the jurisdictional requirement of the statute was not met and the petition was properly denied.
4. The question of whether the wife as a petitioner for separate maintenance (RSA 458:31) has acquired the domicile of her husband in this state is a question of fact to be determined under all the circumstances.
PETITION, for separate maintenance under RSA 458:31. The petition alleged that in May 1957 the defendant abandoned the plaintiff without her consent and refused to cohabit with her, and has willingly absented himself without making suitable provisions for her support and maintenance. A motion to amend, if granted, would add a further count alleging adultery in 1958.
The parties were married June 19, 1942 at Oyster Bay, New York. From the time of the marriage until the original separation occurred in February, 1956, they lived together in Jericho, New York. The defendant thereafter took up separate residence in an apartment in Jericho. In September, 1956, he purchased a dwelling house in Hopkinton, New Hampshire and moved from New York with the intention of residing in this state indefinitely.
The plaintiff came to Hopkinton on March 2, 1957, and a reconciliation was effected and she remained until March 11. She returned on April 2 and left for Jericho on the fourteenth. The plaintiff again returned to Hopkinton on May 11 and remained until the thirteenth. On May 17, 1957, a disagreement arose in Jericho prior to a planned excursion to Europe, and the parties separated and have never resumed marital relationship.
Mrs. Van Rensselaer regularly filed her federal income tax returns in New York, as well as the New York state income tax returns. She has never filed a New Hampshire interest and dividends tax return or paid a poll tax or voted in this state. She executed a will in New Hampshire on May 13, 1957, reciting that she was of Jericho, New York.
The defendant filed a motion to dismiss the petition for lack of jurisdiction. The Court (Grant, J.) found that the plaintiff was not domiciled in New Hampshire, granted the motion and reserved and transferred the plaintiff's exceptions.
Nelson, Winer Lynch (Mr. Winer orally), for the plaintiff.
Orr Reno and John W. Barto (Mr. Barto orally), for the defendant.
Authority to grant separate maintenance in this state is of statutory origin and exists only in those situations set forth in the statute (RSA 458:31) which provides: ". . . whenever a cause is in existence which is, or if continued will be, a cause for divorce, the superior court, upon petition and such procedure thereon as in divorce cases, may restrain either party from interfering with the personal liberty of the other and from entering the tenement wherein the other resides, may grant temporarily or permanently the custody, care, education and maintenance of their minor children, if any, and may make reasonable allowance for support, all subject to such limitations and conditions as the court shall deem just."
While this statute provides no special jurisdictional requirements it does require that "in order to qualify as misconduct which either is or, if continued, will be a cause for divorce, the misconduct must have occurred or must be in the process of accruing into a cause for divorce while the plaintiff is domiciled in this state." (Emphasis supplied). Eckstrom v. Eckstrom, 98 N.H. 177, 179.
The question thus presented is whether there was evidence to support the finding of the Court that the plaintiff was not domiciled in this state at the time of the filing of the petition. The answer to this question depends upon whether the evidence warranted a finding that the plaintiff had no intention of actually making her home here after May 17, 1957. Sworoski v. Sworoski, 75 N.H. 1, 2.
There is nothing in the statute, supra, which requires the domicile of the plaintiff to be in this state merely because of the marriage relationship. Under appropriate circumstances, a wife may acquire a separate domicile. Payson v. Payson, 34 N.H. 518; Hopkins v. Hopkins, 35 N.H. 474; Eckstrom v. Eckstrom, supra.
The sum total of the several meetings between the parties when they resumed marital relations, whether in Jericho, New York, or in Hopkinton, was less than thirty days. Furthermore the plaintiff regularly filed her federal income tax returns in New York as well as the New York income tax returns. She has filed no New Hampshire interest and dividends tax return, nor has she paid a poll tax, or voted in this state. On May 13, 1957, she executed a will in this state reciting that she was of Jericho. There was evidence from which it could be found that the parties finally separated by mutual agreement.
The plaintiff, relying upon Masten v. Masten, 15 N.H. 159, contends that it must be ruled as a matter of law that the plaintiff's domicile was in this state at the time of the filing of her petition. The Masten case is distinguishable since the parties there had lived together in this state for some seventeen years and the wife left the state temporarily in order to support herself and children. The court said that under these circumstances she had a right to claim domicile here.
We are of the view considering all the circumstances of this case that the evidence warranted although it did not compel a finding that the plaintiff did not have a domicile in this state for the purpose of bringing these proceedings.
Exceptions overruled.
KENISON, C.J. and BLANDIN, J., concurred specially; the others concurred.
I concur in this opinion solely because the result is dictated by RSA 458:31 as construed in Eckstrom v. Eckstrom, 98 N.H. 177. However the result is unfortunate and points up to the Bar the desirability of legislative consideration and change in order to eliminate the wife's domicile as a jurisdictional requirement in seeking separate maintenance in this state. Not only does the Eckstrom decision represent a distinct minority view (anno. 36 A.L.R. 2d 1369) but it is presently out of harmony with more recent statutes which allow marital support to be enforced without the requirement of domicile on the part of the wife. Uniform Reciprocal Enforcement of Support Act. RSA ch. 546 (supp), Laws 1959, c. 271; Uniform Civil Liability for Support Act, RSA ch. 546-A (supp), Laws 1955, c. 206; RSA 460:23 (supp), Laws 1959, c. 5; State v. Echavarria, 101 N.H. 458. New Hampshire will continue in part to be a jurisdictional haven for husbands avoiding marital support unless this requirement of the wife's domicile is eliminated under RSA 458:31.
BLANDIN, J., joined in the concurring opinion.