Tracy v. Tracy

The opinion of the court was delivered by Voorhees, J.

The appeal in this case is taken from the decree of the court of chancery, refusing the application of the petitioner for a di *808 yorce from the defendant, her husband, upon the ground of desertion. The testimony shows that the parties were married at Albai:iy, New York, in November, 1890; that'the defendant was employed in the office of the secretary of state there; that they lived together as husband and wife in Albany, New York, until December, 1894, when the husband deserted the wife, leaving her in a boarding-house with an unpaid board bill, and has not rejoined or been with her since, or in any way contributed to her support; that after such desertion she continued to live in Albany, supported by her father-in-law (the father of her 'former husband), until May, 1897, when, his death having occurred, she removed, on May 18th, 1897, to New Jersey, and has continued to live in Newark since that time, at first boarding, and then conducting a boarding-house of her own for over a year; then she sold the boarding-house, and has been in lodgings since. She made several visits during the summers to the house of friends near her former home, but left in Newark a large part of her personal property and wearing apparel. She says she left Albany permanently. Pier intention was to take up a residence in New York City, but finding that too expensive for her means, she went over to Newark, where she had friends, and made that her permanent residence. She denies having come to New Jersey for the purpose of procuring a divorce; she denies having any thought or intention of securing a divorce when she first came; she states that her only object in leaving Albany was to avoid the unpleasant criticisms and comments of her acquaintances about her being deserted by her husband. She says when she came here her idea was to give up her home in Albany and to live in New Jersey indefinitely; that she has not changed her purpose, but still expects to remain here, and it is her only residence and home. She produced several witnesses, who testify to her coming here, and to her remaining here, and to the continued desertion of her husband while here. The vice-chancellor found that the evidence produced satisfactorily established the desertion contemplated by the statute, but advised against the divorce upon the ground that he didn’t believe that she came here for the purpose of giving up her home permanently and *809 settling here, or that she had acquired a permanent or actual residence in New Jersey. He says, in his opinion, that except for her acquaintances in Newark, there was nothing to bring her to New Jersey except to obtain a divorce, and nothing to keep her here after she had obtained it, and he relies upon the authority of McGean v. McGean, 15 Dick. Ch. Rep. 21. That case materially differs from the one in hand. In McGean v. McGean the complainant testified that after her husband deserted her she consulted a lawyer in Brooklyn, who told her she could not secure a divorce in New York, and advised her to come to New Jersey and procure a residence for the statutory period; her residence had been in Brooklyn. She came to Jersey City and secured board there in a family for the statutory period, and spent much of her time at her home in Brooklyn, and then applied for a divorce, which was refused. Her avowed purpose in coming to New Jersey was to secure a divorce, while in the case in hand the petitioner, who is the only one who can testify on the subject, denies any intention of coming to New Jersey to secure a divorce.

The fact that a person comes into a state for a specified purpose does not necessarily prevent him from procuring a residence there, if at the time of coming he has no definite idea of removing from the state when that purpose is accomplished, or at some other definite period. But if he goes with the avowed object of living there to secure a standing on which to found a judicial proceeding, a violent presumption would arise that the animus of remaining was not definite, but was largely determinate upon the termination of such procedure, and that an actual and bona fide residence had not been obtained. The petitioner was not impeached in any way, and her testimony not contradicted; it was consistent, clear and relevant; did not bear any intrinsic evidence of improbability, and was sufficient after the other testimony produced, under the statute, to establish her residence here, and entitled her to the divorce prayed for.

A court or jury may consider the weight of evidence, and pass upon the credit of the respective witnesses, but can they arbitrarily and capriciously refuse to accept the unimpeached, uncontradicted testimony of a witness which is not inherently *810 inconsistent or improbable? Lomer v. Meeker, 25 N. Y. 361 ; Seibert v. Erie Railroad Co., 49 Barb. 583 .

The act tinder -which this application was made provides that the court of chancery shall have jurisdiction in all causes of divorce, alimony and maintenance * * * where the complainant or defendant shall be a resident of this state at the time of filing the bill of complaint, and shall have been a resident of this state for the term of two years, during which such desertion shall have continued. Gen. Slat. p. 1273 § 39.

Residence has 'been defined to be the place where a person’s habitation is fixed, without any present intention of removing therefrom. The place where a person lives is prima facie taken to be his residence, unless facts be established to the contrary. 3 Am. L. Reg. (N. S.) 262; Ennis v. Smith, 14 How. 423 ; Hoskins v. Matthew, 8 De G. M. & G. 12. Residence does not depend upon the manner of living, which may be at housekeeping or lodging. Waterborough v. Newfield, 8 Greenl. 203; 1 Am. Lead. Cas. 744. Residence is lost by leaving the place where one has acquired a permanent home, and removing to another place animo non revertendi, and is gained by remaining in such new place animo manendi. A feme covert’s residence follows that of her husband, but terminates with the reason upon which it rests, and when the union between the two ceases, and an attitude of hostility arises, they may each have different residences. Harteau v. Harteau, 14 Pick. 181 ; 3 Am. L. Reg. (N. S.) 260. Residence and domicile have been fully described in this state, in Stout v. Leonard, 8 Vr. 492 , 495; Daubmann v. Camden, 10 Vr. 57 ; Magowan v. Magowan, 12 Dick. Ch. Rep. 322. The testimony clearly shows that the petitioner lived within the State of New Jersey during the statutory time required for procuring the divorce prayed for; that she acquired a residence here and was a resident at the time of filing her petition; that the desertion was continued, willful and obstinate during the said time; that she left Albany with no idea of returning, and came herewith no -intention of leaving. She is entitled to the divorce prayed for.

The decree should be reversed.

*811 For reversal—The Chief-Justice, Dixon, Collins, Fort, Garretson, Hendrickson, Bogert, Vredenburgh, Voorhees —9. For affirmance—None.