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  • John E. Mulhearn, Natchez, for appellant. I. Rosetta Carter was and is a resident of the State of California, and the motion to dismiss for lack of jurisdiction should have been sustained. Bilbo v. Bilbo, 180 Miss. 536, 177 So. 772; Lynch v. Lynch, 210 Miss. 810, 50 So.2d 378. II. The final decree was granted on the uncorroborated testimony of the appellee, contrary to law. Anderson v. Anderson, 190 Miss. 508, 200 So. 726; Chambers v. Chambers, 213 Miss. 71, 56 So.2d 33. III. The evidence showed no intent on the part of the appellant, Rosetta Carter, not to return to the State of California, and there was no desertion. Fulton v. Fulton, 36 Miss. 517. Thos. K. Green, Jr., Natchez, for appellee. I. The Chancellor found as a fact that Rosetta Carter had been an actual bona fide resident citizen of Adams County, Mississippi, for more than one year next preceding the commencement of this suit, and the motion to dismiss for lack of jurisdiction was properly overruled. Anderson v. Cumberland Tel. Tel. Co., 86 Miss. 341, 38 So. 786; Bates v. Brevard-Woods Stave Co., 115 Miss. 588, 76 So. 553; Meridian Hatcheries, Inc. v. Troutman, 230 Miss. 493, 93 So.2d 472; Myers v. Giroir, 226 Miss. 335, 84 So.2d 525; Sandifer v. Sandifer, 215 Miss. 414, 61 So.2d 144; Smith v. Smith, 194 Miss. 431, 12 So.2d 428; Thames v. Thames, 222 Miss. 617, 76 So.2d 707. II. It was not necessary that appellee produce corroborating testimony as to the essential averments of the bill and testimony of complainant, and none should have been required. Anderson v. Anderson, 190 Miss. 508, 200 So. 726; Chambers v. Chambers, 213 Miss. 71, 56 So.2d 33; Fleming v. Fleming, 213 Miss. 74, 56 So.2d 35; Howell v. Howell, 213 Miss. 141, 56 So.2d 392; Amis, Divorce and Separation in Mississippi, Sec. 260. III. The record shows conclusively that appellant had no intention of returning to California.
Judges
  • LEE, J.
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  • John E. Mulhearn, Natchez, for appellant. I. Rosetta Carter was and is a resident of the State of California, and the motion to dismiss for lack of jurisdiction should have been sustained. Bilbo v. Bilbo, 180 Miss. 536, 177 So. 772; Lynch v. Lynch, 210 Miss. 810, 50 So.2d 378. II. The final decree was granted on the uncorroborated testimony of the appellee, contrary to law. Anderson v. Anderson, 190 Miss. 508, 200 So. 726; Chambers v. Chambers, 213 Miss. 71, 56 So.2d 33. III. The evidence showed no intent on the part of the appellant, Rosetta Carter, not to return to the State of California, and there was no desertion. Fulton v. Fulton, 36 Miss. 517. Thos. K. Green, Jr., Natchez, for appellee. I. The Chancellor found as a fact that Rosetta Carter had been an actual bona fide resident citizen of Adams County, Mississippi, for more than one year next preceding the commencement of this suit, and the motion to dismiss for lack of jurisdiction was properly overruled. Anderson v. Cumberland Tel. Tel. Co., 86 Miss. 341, 38 So. 786; Bates v. Brevard-Woods Stave Co., 115 Miss. 588, 76 So. 553; Meridian Hatcheries, Inc. v. Troutman, 230 Miss. 493, 93 So.2d 472; Myers v. Giroir, 226 Miss. 335, 84 So.2d 525; Sandifer v. Sandifer, 215 Miss. 414, 61 So.2d 144; Smith v. Smith, 194 Miss. 431, 12 So.2d 428; Thames v. Thames, 222 Miss. 617, 76 So.2d 707. II. It was not necessary that appellee produce corroborating testimony as to the essential averments of the bill and testimony of complainant, and none should have been required. Anderson v. Anderson, 190 Miss. 508, 200 So. 726; Chambers v. Chambers, 213 Miss. 71, 56 So.2d 33; Fleming v. Fleming, 213 Miss. 74, 56 So.2d 35; Howell v. Howell, 213 Miss. 141, 56 So.2d 392; Amis, Divorce and Separation in Mississippi, Sec. 260. III. The record shows conclusively that appellant had no intention of returning to California.
Judges
  • LEE, J.
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Smart Summary

Carter v. Carter, No. 40544 — Supreme Court of Mississippi (Oct. 21, 1957)

Factual and Procedural Background

Eli Carter filed a bill for divorce on May 22, 1956, alleging that his wife, Rosetta Carter, had willfully, continually and obstinately deserted him for more than twelve months prior to the filing. Rosetta had left Los Angeles, California, on June 19, 1951, and moved to Natchez, Mississippi, with the parties' children, and had resided in Mississippi for almost five years at the time the suit was instituted.

The evidence at trial was in conflict. Rosetta testified she left because of ill health and at Eli's instance, intended to return, had requested transportation, remained a qualified voter in California and did not change her church membership; her father (her witness) admitted that periodic mail from Eli had reached her while she lived in his home. Eli testified she left suddenly, took family savings of about $1,300, and that although he sent monthly support payments he received no indication she intended to return; he denied sending her to Mississippi.

The Chancery Court of Adams County, Walter D. Coleman, Chancellor, resolved the factual dispute in favor of Eli and granted him a divorce. Rosetta appealed. The Supreme Court of Mississippi affirmed the decree and allowed an attorney's (solicitor's) fee of $75 to the appellant for services in this Court.

Legal Issues Presented

  1. Whether Rosetta Carter was guilty of willful, continued and obstinate desertion of her husband for more than twelve months prior to the filing of the bill.
  2. Whether the chancery court had jurisdiction under Section 2736(a), Code of 1942 — i.e., whether Rosetta was an actual bona fide resident of Mississippi for more than one year immediately preceding the commencement of the suit.

Arguments of the Parties

Appellant's (Rosetta Carter's) Arguments

  • Rosetta was and is a resident of the State of California; therefore the trial court lacked jurisdiction and the motion to dismiss should have been sustained (citing Bilbo v. Bilbo and Lynch v. Lynch).
  • The final decree was granted on the uncorroborated testimony of the appellee and thus was contrary to law (citing Anderson v. Anderson and Chambers v. Chambers).
  • The evidence showed no intent on Rosetta's part not to return to California; there was no desertion (citing Fulton v. Fulton).

Appellee's (Eli Carter's) Arguments

  • The chancellor found as a fact that Rosetta had been an actual bona fide resident of Adams County, Mississippi, for more than one year prior to the suit and thus overruling the motion to dismiss was proper (citing multiple residency-related authorities).
  • It was not necessary that the appellee produce corroborating testimony for the essential averments of the bill and the complainant's testimony; corroboration should not have been required (citing Anderson v. Anderson, Chambers v. Chambers, Fleming v. Fleming, Howell v. Howell and a treatise reference).
  • The record conclusively showed appellant had no intention of returning to California.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court (per record)
Bilbo v. Bilbo, 180 Miss. 536, 177 So. 772 Cited by appellant to argue lack of jurisdiction based on wife's California residence. Cited in appellant's brief; the opinion does not explicitly state it relied upon this case in its analysis.
Lynch v. Lynch, 210 Miss. 810, 50 So.2d 378 Cited by appellant concerning jurisdiction/residency issues. Cited in appellant's brief; the Court's written opinion affirms jurisdiction on the facts but does not expressly discuss this authority.
Anderson v. Anderson, 190 Miss. 508, 200 So. 726 Invoked by both sides regarding the need (or non-necessity) of corroboration of the complainant's testimony in divorce proceedings. Briefed by both parties; the opinion does not base its ruling on a detailed exposition of this case, instead affirming the chancellor's factual resolution.
Chambers v. Chambers, 213 Miss. 71, 56 So.2d 33 Cited on the corroboration point (appellant and appellee refer to it). Cited in briefs; the Court's opinion does not analyze this precedent separately in its reasoning.
Fulton v. Fulton, 36 Miss. 517 Cited by appellant to support the proposition that the evidence showed no intent not to return — i.e., no desertion. Cited in appellant's brief; the Court resolved the factual issue for the husband and did not rely on this authority to reverse.
Anderson v. Cumberland Tel. Tel. Co., 86 Miss. 341, 38 So. 786 Cited by appellee among authorities supporting the chancellor's residency finding. Cited in appellee's brief to support jurisdiction; the opinion affirms the residency finding but does not identify this case as controlling in the written analysis.
Bates v. Brevard-Woods Stave Co., 115 Miss. 588, 76 So. 553 Cited by appellee in support of the residency/jurisdiction contention. Cited in appellee's brief; the Court's opinion upholds residency on the facts without explicit reliance on this specific precedent.
Meridian Hatcheries, Inc. v. Troutman, 230 Miss. 493, 93 So.2d 472 Cited by appellee concerning residency/jurisdiction principles. Cited in appellee's brief; not separately analyzed in the Court's opinion.
Myers v. Giroir, 226 Miss. 335, 84 So.2d 525 Cited by appellee on residency/jurisdiction. Cited in appellee's brief; the opinion affirms residency on the facts and does not discuss this case in detail.
Sandifer v. Sandifer, 215 Miss. 414, 61 So.2d 144 Cited by appellee for residency/jurisdiction support. Cited in appellee's brief; the opinion affirms the chancellor's finding without specific reliance on this case in the text.
Smith v. Smith, 194 Miss. 431, 12 So.2d 428 Cited by appellee for residency/jurisdiction authority. Cited in appellee's brief; not expressly discussed in the Court's opinion.
Thames v. Thames, 222 Miss. 617, 76 So.2d 707 Cited by appellee for residency/jurisdiction principles. Cited in appellee's brief; the opinion affirms the residency finding without explicitly citing this precedent in its analysis.
Fleming v. Fleming, 213 Miss. 74, 56 So.2d 35 Cited by appellee to support non-requirement of corroboration. Cited in appellee's brief on corroboration; the opinion does not separately analyze this authority.
Howell v. Howell, 213 Miss. 141, 56 So.2d 392 Cited by appellee regarding corroboration of testimony. Cited in appellee's brief; the Court's opinion affirms the chancellor's factual resolution and does not discuss this case in detail.

Court's Reasoning and Analysis

The Supreme Court framed the controlling issue under the pleadings as whether Rosetta was guilty of willful, continued and obstinate desertion for the requisite statutory period. The court reviewed the trial evidence and characterized it as "in hopeless conflict," summarizing both sides' testimony and the father's admission about occasional mail from Eli to Rosetta while she lived in his home.

The court noted as an undisputed fact that Rosetta had been in Mississippi since late June 1951, nearly five years before Eli filed the bill in May 1956. The chancery court had resolved the credibility dispute in favor of Eli and found Rosetta guilty of desertion. The Supreme Court accepted the chancellor's factual resolution, stating the evidence was sufficient to sustain the finding of desertion.

On the jurisdictional/residency question under Section 2736(a), Code of 1942, the court concluded the evidence was sufficient to warrant the conclusion that Rosetta was an actual bona fide resident of Mississippi for the statutory one-year period immediately preceding the filing, thereby supporting the chancery court's jurisdiction to entertain the divorce action.

The opinion affirms the chancellor's findings based on the record of conflicting testimony resolved by the factfinder; the opinion does not undertake an extended discussion of the individual precedents cited in the parties' briefs.

Holding and Implications

Holding: Affirmed. The Supreme Court of Mississippi affirmed the decree of the Chancery Court granting Eli Carter a divorce on the ground of Rosetta Carter's willful, continued and obstinate desertion for more than twelve months preceding the filing of the bill.

Implications: The direct effects of the decision are: (1) the trial court's decree granting divorce to Eli Carter is affirmed; (2) the Supreme Court found the evidence sufficient both to establish desertion and to show that Rosetta was a bona fide resident of Mississippi for purposes of Section 2736(a); and (3) the Court allowed an attorney's fee for the appellant in this Court in the amount of $75, payable within fifteen days. The opinion does not announce new legal doctrine beyond applying settled principles to the facts and does not purport to overrule or extend the precedents cited in the parties' briefs.

Additional Case Information

Opinion by Justice Lee; Chief Justice McGehee and Justices Hall, Kyle and Holmes concurred. The chancellor below was Walter D. Coleman.

Show full summary ...

CARTER v. CARTER

1. Divorce — desertion — evidence sustained husband's charge of desertion.

In husband's suit for divorce evidence sustained finding that wife was guilty of willful, continued and obstinate desertion of her husband for more than 12 months next before filing his bill of complaint.

2. Divorce — jurisdiction — evidence sufficient to warrant conclusion that wife had been an actual bona fide resident of State for more than one year next precedng filing of bill of complaint.

In action for divorce by husband, a California resident, on ground of desertion by wife who had left husband and came to Mississippi where she had resided almost five years at time proceeding was instituted, evidence was sufficient to warrant conclusion that wife was a bona fide resident of Mississippi within statute limiting jurisdiction of chancery in suit for divorce to where one of the parties has been an actual bona fide resident for one year next preceding commencement of suit. Sec. 2736 (a), Code 1942.

Headnotes as approved by Lee, J.

LEE, J.

Under the pleadings, the issue in this case was whether or not Rosetta Carter was guilty of wilful continued and obstinate desertion of her husband, Eli Carter, for more than twelve months next before the filing of his bill.

The evidence was in hopeless conflict. It was Rosetta's contention that, when she left her husband in Los Angeles, California, on June 19, 1951, and came to Natchez, Mississippi, with their children, she did so because of ill-health and at the instance of her husband; that she purposed to return to him and subsequently asked for transportation; that she was a qualified voter in that state and did not move her church membership; and that she never did hear anything from her husband. However, her father, introduced by her to show that she had been under the care of a doctor, admitted, on cross-examination, that, during the two years that she lived in his home, frequently at times and then perhaps two or three months apart, mail came to her from her husband.

On the contrary, Eli denied that he sent his wife to Mississippi. He testified that she rushed off suddenly under the guise of returning to Mississippi to see a sick sister; that she called him over the telephone while he was at work, and, when he got home, she was packed and ready to go; that she had all of the money which they had saved and borrowed for the purpose of buying a home, approximately $1,300, and that she took it with her; that he had sent her $100 a month for the first year and $75 a month for the next two years, for the support of the children; and that, at no time, did she say anything about returning to him, although he would have been willing to take her back at any time before the filing of the suit.

Eli filed his bill of complaint on May 22, 1956. It is undisputed that Rosetta, at the time, had been in Mississippi since the latter part of June 1951 — almost five years.

(Hn 1) The learned chancellor resolved the issue in favor of Eli and awarded him a divorce. (Hn 2) Obviously the evidence was sufficient to warrant the conclusion that Rosetta was a bona fide resident of Mississippi within the meaning of Section 2736(a), Code of 1942, and amply justified the relief granted.

Appellant's uncontested motion for the allowance of a solicitor's fee for services rendered in this court is sustained, and the same is fixed at $75, one-half of the amount allowed by the trial court, payable within fifteen days.

The decree of the trial Court is affirmed, and a solicitor's fee is allowed here.

Affirmed and solicitor's fee allowed.

McGehee, C.J., and Hall, Kyle and Holmes, JJ., concur.

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CARTER v. CARTER
(Oct 21, 1957)