Stevens v. Allen

71 So. 936, 139 La. 658, 1916 La. LEXIS 1603

• Court: Supreme Court of Louisiana
• Decided: January 24, 1916
• Docket: No. 20763
• Status: Published

Opinions

LAND, J.

This is a suit for separation from bed and board on the ground of abandonment. The curator ad hoc, appointed to represent the defendant, excepted to the jurisdiction of the court upon the admitted fact that the wife had never been within the limits of the state of Louisiana. This exception was sustained, and the suit was dismissed. The plaintiff has appealed.

Plaintiffs father, Gen. Walter H. Stevens, was an officer in the United States Army, who, in 1848 married plaintiff’s mother in the state of Louisiana, and in 1861 resigned his office, and established his residence in the city of New Orleans. A short time thereafter Gen. Stevens entered the Confederate Army. It appears from the deposition of the widow of Gen. Stevens that, after the close of the Civil War, he went to Mexico for a time, but never changed his residence.

The plaintiff was born in the state of Virginia, but remained there only 7 months, and, when he attained the age of 19 years, was appointed as a cadet to the United States Military Academy of West Point from the state of Louisiana. Plaintiff, having graduated from said institution, entered the United States Army, and there remained continuously until March 1, 1913, when he retired with the rank of lieutenant colonel. Thereupon the plaintiff returned to New' Orleans, where he has been residing since March, 1913. Plaintiff alleges “that he has at all times retained his domicile in the city of New Orleans,” but there is no allegation or proof of his actual residence in that city prior to the year 1913.

Plaintiff further alleges that in July, 1899, while stationed temporarily as an officer in the United States Army at Ft. Meyer, Va., he was married to the defendant in the city of Brooklyn, N. Y. Plaintiff further alleges that in November, 1912, he was stationed at Ft. Stevens, Or., and that his said wife refused without cause to accompany him to Ft. Stevens, although plaintiff went to Brooklyn at the time and lived there for several days with his wife and urged her to return with him. Plaintiff further alleges that his wife is now residing at 747 Quincy street in Brooklyn.

Defendant and the plaintiff were married in the city of Brooklyn in 1899. In July, 1912, she and her husband were living there together; and there is nothing to show that the defendant since her marriage has lived elsewhere. The alleged abandonment took place in the state of New York; and the defendant has been living separate and apart from her husband since November, 1912.

[1] The question is whether the courts of Louisiana have jurisdiction to decree a separation from bed and board in a case of this kind. The judge a quo held that his court had no jurisdiction in the premises.

The curator ad hoc cites Heath v. Heath, 42 La. Ann. 437, 7 South. 540, which is on all fours with the case at bar, with the exception of plaintiff’s claim of domicile of origin in the state of Louisiana. Plaintiff’s complaint is not that his wife refused to return to the city of New Orleans, but that she refused to accompany him to his temporary residence in the state of Oregon. In Heath v. Heath, supra, the court said:

. “In this case the parties to the marriage never had a matrimonial domicile in this state, as the wife has never been here with her husband. There never has been a common dwelling here, and therefore the wife could not abandon it. Muller v. Hilton, 13 La. Ann. 1 [71 Am. Dec. 504]; Champon v. Champon, 40 La. Ann. 40 [3 South. 397].”

See, also, Nicholas v. Maddox, 52 La. Ann. 1493, 27 South. 966.

The matrimonial domicile of the parties was in Brooklyn.

The plaintiff’s suit is based on the alleged abandonment of 1912, and he does not claim a separation from bed and board on the ground that, since the establishment of his residence in the city of New Orleans, he has invited his wife to live with him, and that she has refused to do so.

Judgment affirmed.

PROVOSTY and O’NIELL, JJ., dissent.