Case 47 — PETITION EQUITY

November 24.

#### Hall v. Hall.

APPEAR PROM PAYETTE CIRCUIT COURT.

T. Divorce — Residence op Wife — Jurisdiction—Statutory Construction. — -In an action by a wife for divorce on tbe statutory ground that she and her husband had lived separate and apart without co-habitation for five consecutive years, the habitation of the wife in the meaning of the statute, as contra-distinguished from her legal domicile with her husband, is regarded as her residence for the purposes of jurisdiction.

J. G. WOODFOLK por appellant.

1. The living separate and apart without co-habitation for five consecutive years next before the application for divorce entitles either party who has been during that time a resident of this State to a divorce, whether in fault or not. Beckett v. Beckett, 17 B. M., 370.

JUDGE PAYNTER

delivered the opinion op the court.

The parties to this action were married in Woodford county, Ky., in 1884, and shortly thereafter moved to California where they resided until 1890, when the plaintiff, Sallie Hall, returned to Kentucky, where her family lived, but left her husband in California, where he then and now resides. She seems to have abandoned her husband and returned to Kentucky to make it her residence, where she has since continuously resided. The ground which she alleges for a divorce from the bonds of matrimony, is that she and the defendant have lived separately and apart, without any co-habitation for five consecutive years next before the commencement of the action. Her actual residence is in Kentucky and the grounds for a divorce are abundantly proven.

*298The court dismissed the petition, but the reasons therefor do not appear. It is certain that the ground for divorce' occurred and existed in this .State, as she does not ask for1 a divorce on grounds other than the one .stated.

In Becket v. Becket (17 B. Monroe, 372), it appeared that the parties were married in Ireland and the husband abandoned the wife and emigrated to America. Two grounds, for a divorce were alleged, abandonment, and living separately and apart for five consecutive years without co-habitation. The divorce was refused, as the abandonment occurred in Ireland, and when the parties were not residents of the 'State. The other ground was not held sufficient, because the plaintiff had not lived in the State during the time the separation continued; but the court said, “according to the statute, the living separately and apart without co-habitation for the space of five consecutive years, next before the application for a divorce, entitles either party who has been during that time a resident of this State to a divorce whether in fault or not.” This case is an authority to sustain the plaintiff’s right to a divorce. It does not appear in that case that the husband was a resident of Kentucky, but it appears that the last time that the wife had seen him was in the State of Indiana. The court below must have concluded that the State of California was: “in judgment of law,” the domicile of the plaintiff, because the husband was domiciled in that State.

This .would seem to be the proper view according to Ma-guire v. Maguire (7 Dana, 187). In that case the husband was domiciled in another State and the wife, who brought the suit, was .found not to have become permanently or in good faith a resident of this State.

*299In Tipton v. Tipton (87 Ky., 246), it was held that the provisions of the Code which required a plaintiff in an action for divorce to allege and prove a residence in the State for one year before the commencement of the action, means he shall allege and prove an actual residence.

In Perzel v. Perzel (91 Ky., 634), the husband was never domiciled in Kentucky, neither did he ever have an actual-residence in this State. He seems to have been in New York until he departed for France when the wife came to Kentucky to live with her mother. The court held her residence was in Kentucky. If the domicile of the husband is to fix the residence of the wife in the meaning of the statute, it would seem that Mrs. Perzel’s residence was not in Kentucky because the husband did not nor had he ever lived in the State. While it may appear that 'the court attached some importance to the fact that the husband had departed from the place of his domicile 'to France, still the case was necessarily decided for Mrs. Perzel because she had been an actual resident of the State for the time required by the statute.

The plaintiff did not come to Kentucky to establish a residence in order to maintain an action for divorce, but did so-with a view of becoming permanently a resident of the-State. She has shown that she is an actual resident of the-State and has become so in good faith, and in our opinion that is all .that the statute required of her, in order to maintain an action for divorce.

In the meaning of the statute -the habitation of the wife as contradistinguished from her legal domicile with her-husband should be regarded as her residence.

The judgment is reversed for proceedings consistent with -. this opinion.