216 La. 784

#### WREYFORD v. WREYFORD.

No. 38456.

Supreme Court of Louisiana.

Feb. 13, 1950.

Joseph C. Brocato, Shreveport, for plaintiff-appellant.

Russell E. Gahagan, Natchitoches, - for defendant-appellee.

MOISE, Justice.

This, suit for divorce, based on the grounds established by Act No. 269 of 1916, as amended by Act No. 31 of 1932, as amended by Act No. 430 of 1938, the living separate and apart for a period of two years continuously by married parties, was brought by a resident of Caddo Parish (the wife) against a resident’ of Red River Parish (the husband) in the Tenth Judicial District Court in-and for Red River Parish, which had also been the -last matrimonial domicile. The defendant’s exceptions, to the.jurisdiction of the Tenth Judicial District Court either ratione materiae or rations personae were sustained, and plaintiff’s suit was dismissed by that Court. She has appealed..

The Legislative -act under which this proceeding was instituted provides in part as follows: “Be it enacted by the Legislature of Louisianá, That - when married persons have been living separate and apart for a period of two years or more, either party to the marriage contract may sue, in the Courts of his or her residence within this state;' provided such residence shall have been continuous for the period of two years, for an absolute divorce, which shall be granted -bn • proof of the continuous living separate and- apart of the spouses, during said period of two years or more.”

The sole question before us is whether a plaintiff, whose cause of action is predicated ■ on the ground established 'by 'the aforesaid act' of . the Legislature,'- ■ *must*initiate his (her) suit in the court of his (her) residence; or, whether that plaintiff has a *■choice*of instituting suit in the court of' his (her) residence, with the *alternative*
      *868
      *choice*of initiating suit in the court of the *defendants domicile*(which would be the proper forum for a personal action) or in the court of the matrimonial domicile (which would have jurisdiction of the *res).*

The District Court apparently interpreted the language of the statute to mean that a plaintiff proceeding thereunder *must*sue in the court of his (her) *residence.*

Articles 17 and 18 of the Revised Civil Code provide:

> “17. Laws in pari materia, or upon the same subject matter, must be construed .with a reference to each other; what is clear in one statute may be called in aid to explain what is doubtful in another.

> . “18. The universal and most,,effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit, of it, or the cause which induced the Legislature to enact it.”

There.are three ways in which divorces may be obtained in Louisiana; two are established by Articles' 138 and 139 "of the Revised Civil Code, and an additional-remedy -has-been established by Act No. 269 •of 1916, as amended by Act No. 31 of 1932, as amended by. Act No. 430 of 1938. The codal articles permit an- absolute divorce in two instances: (1) where there.has been an antecedent judgment of separation from .bed and board, predicated on a cause set forth in Article 138, R.C.C., and'no reconciliation of the judicially separated spouses during a period of one year subsequent to the judgment; (2) where one of the parties has been guilty of adultery, or shall have been sentenced to an infamous punishment. The above-mentioned Legislative acts have created an additional ground for securing .a divorce — the dwelling separate and apart for a certain period of time, which was arbitrarily fixed by the Legislature, first at seven years, Act No. 269 of 191.6, then at four years, Act No. 31 of 1932, and presently, at two- years, Act No. 430 of 1938. In adding to the. pre-existing substantive law on the subject a further basis for obtaining a divqrce, th.e Legislature foresaw that there might be some question as to the proper forum, by the very nature of the substantive remedy it was according, and it specifically conferred on a plaintiff predicating his (her) action on the new, statutorily-established ground the privilege of adjudication in .the forum of his (her) residence.

After considering Act No. 430 of 1938 in the light of the entire body of Louisiana divorce law, we conclude that it is illogical . to prohibit a plaintiff whose *cause of action*arises under a- ground established, or created, by statute from employing the *procedure*which is employed where the ground for the divorce has been established and created by the Civil Code, when it is in the plaintiff’s.power,to so employ that general procedure and there is no necessity for him to avail himself of the *additional procedure*permitted by Act No. 430 of 1938. We hold that, where the domicile of the defendant, as well' as the last matrimonial domicile, is in the State of Louisiana, then the plaintiff has the choice of instituting her action for divorce at either place, where that action is grounded on Act No) 430 of 1938, ór in accordance with the fiat of the Legislature, at the forum of her own residence.

For the reasons above set forth, the judgment appealed from sustaining the exceptions of defendant is reversed, annulled and set aside, the exceptions of jurisdiction to the Court are hereby overruled, and this -matter remanded to the District, Court for further proceedings in accordance with law and not inconsistent with the views herein expressed.

' HAWTHORNE and McCALEB, JJ., dissent and assign written reasons.

McCALEB, Justice,

(dissenting).

The statute under consideration, Act No. '269'of 1916, as last amended by Act No. 430 of 1938, is'a special law. It provides in substance that when married persons have been • living separate and apart for two years or more “either party to the marriage contract may sue, in the Courts of his or her .residence within this state, provided * * I think that this language clearly fixes the -place in which such actions shall be brought and that the jurisdiction *869of the court of plaintiff’s residence is exclusive, , notwithstanding the • general law, (Article 162 of the Code of Practice) .'that suits must be brought at the domicile of the defendant. ‘ '

The majority take the position that the auxiliary verb “may” as used in the statute is permissive and that, while it authorizes suits to be brought at plaintiff’s domicile, it does not prohibit the institution of such actions at the domicile of the defendant', or at the matrimonial domicile. My answer to this is that the verb “may” refers exclusively to the circumstances under which an action is allowable, i. e., when the spouses have lived separate and apart for two years or more, and has no relation to the place where the suit is to be brought, which is definitely fixed in the statute to be the domicile of the plaintiff. If the Legislature had the intention of permitting the suit to be brought at the' defendant’s domicile, or the last matrimonial domicile, it would have been so easy to say so. Indeed, the decision herein has the effect of amending the statute so that it will now read that, when-spouses have been living separate and apart for a period of two years or more, either party may sue for an absolute divorce in the courts of his or her residence within this state, or at the defendant’s residence,. or at the last matrimonial domicile.

Furthermore, it is to be noted that the statute, after providing that the suit may be instituted in the court of plaintiff’s residence within the state, declares “provided such residence shall have been continuous for the period of two years, * Thus, it is seen that one of the conditions precedent for obtaining the divorce is that the plaintiff prove that he or she has been residing within the jurisdiction of the court for a period of two years. In the case at bar, this proof will be impossible as plaintiff is admittedly a resident of the Parish of Caddo.

I respectfully dissent.

HAWTHORNE, Justice,

(dissenting).

This is a special statute, the .purpose of which is to provide another ground for divorce in addition -to thosé' set forth in the'Civil Codé, and for a person to avail himself of' the provisions of' the statute he must' bring himself within- its terms. It provides that “ * **** either party to the marriage contract may sue,' in the Courts of his or her residence within this State, provided such residence shall hávé been' continuous for the’period of twci. years, for an absolute divorce, which shall be. granted on proof, of the continuous living separate and apart of the-spouses, during said period.of two years or more.” . To-, me this .simply means that the parties' to the marriage contract must live separate and apart, for a period of two years, and that the party instituting the suit must bring-the action in the' court of his residence within this state, provided such residence has been continuous within the jurisdiction of that court for a period of two years.

The. statute is not ambiguous, and to give it the interpretation placed upon it -by the majority is, in effect, legislating under the guise of interpreting. As-'a matter' of policy, it might be to the best interest of society to permit the suit to be brought at the residence of either the plaintiff or the defendant,- but this addresses itself to the sound discretion of the Legislature. ■

I am therefore of the opinion that the judgment of the lower court sustaining the 'exception to the jurisdiction was well founded and should be sustained.

I respectfully dissent.