ACTION FOR DIVORCE CAN NOT BE MAINTAINED BY A NON-RESIDENT.

Court of Appeals for Clermont County.

#### Stephanie Marie Malgras, v. Louis Eugene Malgras.

Decided, November 1, 1921.

*Alien Wife Petitions for Divorce*— Action *not Resisted by Husband— But Petition Dismissed for*Want. *of Jurisdiction*— Residence *of Wife does not Follow Domiole of Husband*— Section *11980.*

A trial court is without jurisdiction to hear an action for divorce, where the plaintiff is not a resident of the county or of the state.

*Paxton, Warrington & Seasongood*and *Robert P Goldman,*for plaintiff in error.

No appearance for defendant in error.

Cushing, J.

The action in the court of common pleas was for divorce. The parties were married in London, England, July 24th, 1907. They lived togethsr for about four months. The husband then deserted the wife. In 1914, he came to Cincinnati, and obtained employment. In 1917, he purchased a farm in Clermont county, where he has since resided.

January 21st, 1921, the wife filed this action for divorce. The husband acknowledged receipt of service nf summons and attempted to enter his appearance in the cause.

The record is, that the wife has never actually been in, or resided in Ohio, nor in the United States.

The husband did not answer or demur. The cause was uncontested. The trial court dismissed the petition on the ground that it did not have jurisiction under the statute of Ohio to hear a case where the plaintiff was not a resident of the county, or the state of Ohio.

In a carefully prepared brief, counsel for plaintiff advances the theory that residence and domicile are synonymous terms; *375that the domicile of the wife is that of the husband, and, therefore, in contemplation of law, she is domiciled' in Clermont county, Ohio, although counsel admits that she has never actually resided in the county or the state. It is sought by interpretation to have the word “residence” used in Section 11980 of the General Code read “domicile.”

Counsel’s theory of the case appeals to the court as possessing merit and justice, and it would seem only just that where an action is brought in the county of the husband’s residence, that she should be granted a hearing. However, a review of the decisions in the United S’tates render such a determination impossible.

In *Friedrich*v. *Friedrich,*119 N. E. 449, the court held that under the statute of Massachusetts a wife residing in New York could not maintain an original libel for divorce in the courts of Massachusetts, although the husband lived in that state and county, and had so resided for more than four years preceding the filing of the action.

In *Rudolph*v. *Wetherington’s Administrator, et al,*180 Ky., 271, the court considers the question of domicile and residence. Mrs. Nellie Wetherington was a resident of Arkansas. She formed and expressed an intention to remove and become a citizen of Ballard county Kentucky, and, in furtherance of that intention, left her home in Arkansas, with her personal belongings, November 20th, 1916, arriving at the city of Paducah, Kentucky, November 24th, was taken sick and died November 26th, 1916, without having been -in Ballard county. She died intestate, leaving two insurance policies, which became due upon her death to her estate. • Application was made in Ballard county for the appointment of an administrator. The statute provided that the court could appoint an administrator in the county of the deceased’s residence. The court in that ease cites Dicey on Conflict of' Laws, page 106, as follows:

> “The only principle which can be laid down as governing all questions of domicile is this, that where a party is alleged to *376have' abandoned his domicile of origin, and to have acquired a new one, it is necessary to show that there would both be *factum*and *animus.*There must be the act, and there must be the intention.”

The court further says:

> “Domicile of choice is entirely a question of residence and intent or, as it is usually put, the *factum, and animus.*Both must concur in order that domicile may be established.”

In *Gordon*v. *Yost,*140 Fed. 79, the court says:

> “The rule that the domicile of the husband is that of the wife does not apply in cases of desertion by the husband.”

The question here presented was considered in the ease of *Dutcher*v. *Dutcher,*39 Wis. 651. In that case the court says, syl. 3:

> “The rule that the domicile of the wife follows that of the husband, is inapplicable, at least under our statute, to a case of divorce, where the parties are actually living in different jurisdictions1; and the fact that the husband’s domicile has been in this state for many years will not enable the wife to sue for a divorce here, if she has continued to live in another state.”

Section 4 of Article IV of the Constitution o f Ohio provides:

> “The jurisdiction of the courts of common pleas, and of the judges thereof, shall be fixed by law.”

•Section 11979-General Code provides:

> “Courts of common pleas may grant divorces for the following causes, ****.”

Section 11980 General Code provides:

> “Except in an action for alimony only, the plaintiff must have -been a resident of the state at least one year before filing the petition. Actions for divorce or for alimony shall be brought in the county of which the plaintiff is and has been, for at least thirty days immediately preceding the filing of the petition, a bona fide resident, or in the county where the cause of action arose.”

*377The cause of action in this case arose in London, England. The domicile of the marriage was in London, England. The language of the statute is plain and unambiguous, and on the question of the jurisdiction of the court in divorce cases, the statute must be followed.

The judgment of the court of common pleas will, therefore, be affirmed.

Hamilton P. J., and Buchwaalter, J. concur.