Marriage and Divorce. Practice, Civil, Hearing by judge without a jury. Where, at the hearing of a libel for divorce on the ground of a desertion which was alleged to have occurred in Canada, it appeared that the parties were not married in this Commonwealth and never had lived together here, and the libellant contended that the court had jurisdiction because he had resided in this Commonwealth for five consecutive years last preceding the filing of the libel, a finding of the judge who heard the case that the court had no jurisdiction of the case because the libellant had not resided in this Commonwealth for five consecutive years last preceding the filing of the libel is a finding of fact which will not be reversed unless shown to be clearly wrong. Such a finding was held not to have been clearly wrong in the present case, where the libellant testified that at the time of his marriage he had lived in Canada and that during his alleged five years' residence in this Commonwealth he had been in Canada during two periods, one of five or six months and the other of two or three months, during which periods he had lived with and worked for his brother.
DeCOURCY, J.
The parties in this libel were residents of Canada when married there in 1890, and have never lived together as husband and wife in this Commonwealth. The judge of the Superior Court, on the libellant's testimony, ruled that the court had no jurisdiction of the libel and ordered it dismissed.
As the parties were not inhabitants of this State, and the alleged cause of divorce occurred in Canada the court had no jurisdiction to dissolve their marital relations unless the libellant had his domicil in this Commonwealth for five years last preceding the filing of his libel. R.L.c. 152, § 5. Shaw v. Shaw, 98 Mass. 158. Ross v. Ross, 103 Mass. 575. This question of domicil was one of fact to be determined by the trial judge and he has decided it adversely to the claim of the libellant. He finds that both the libellant and the libellee are now citizens of the Dominion of Canada. And his ruling that the court had no jurisdiction of the libel was based on the reason "that the libellant had not lived in this Commonwealth for the five years last preceding the filing of this libel." This we must construe to be an express finding of the fact.
Clearly we cannot say that the judge's ruling was wrong or that the findings on which it was based were not justified. The libellant's domicil was in Canada at the time of his marriage and remained there unless and until he acquired one elsewhere. His residence in Massachusetts during the past five years was interrupted by two periods of residence in Canada, one for five or six months and the other for two or three months. Even assuming that he fully credited the libellant's testimony the judge might well find, upon the evidence, that the libellant's residence here, while his wife and relatives remained in Canada, was without an intent to abandon his legal domicil in Canada and establish a new one here.
Libel dismissed.