In a libel for divorce brought by a resident of this state upon the ground of abandonment, it is not material to the jurisdiction where such abandonment commenced to exist so long as it continued for the prescribed period of time. Where the court of a foreign jurisdiction has decreed, in an action for separate support brought by the libelee, that the libelee is living apart from the libelant for justifiable cause the full faith and credit clause of the Federal Constitution (art. IV, s. 1) bars the libelant from asserting in a libel for divorce brought in this state that the separation was due to the libelee's fault, in the absence of changed circumstances concerning the rights or relations of the parties and where the decree itself is not questioned.
MARBLE, C. J.
On the pleadings as they now stand, the ruling of the Presiding Justice is technically correct, for the libelant alleges the requisite period of residence in New Hampshire (R. L., c. 339, s. 6, cl. IX), and where the cause of divorce "consists of a course of conduct continued during a prescribed period of time, as in the case of desertion, or abandonment, it is not material to the jurisdiction, when or where they commence to exist." Payson v. Payson, 34 N.H. 518, 521.
However, the validity of the Massachusetts decree does not appear to be questioned, nor is there any suggestion that subsequent events have created a new legal situation or altered "the legal rights or relations of the litigants" (see Anno. 138 A.L.R. 346, 360). That being so, the libelee, on filing an appropriate plea, will be entitled to a dismissal of the libel. The issues involved in the suit for separate support in Massachusetts and the divorce case in this jurisdiction are practically the same, and, under the full faith and credit clause of the Federal Constitution (art. IV, s. 1), the libelant is barred from asserting that the separation was due to the libelee's fault. Harding v. Harding, 198 U.S. 317. See Taylor v. Taylor, 72 N.H. 597; Anno. 138 A.L.R. 346, 375-380.
Case discharged.
All concurred.