FRANCES M. BENNETT v. EDWARD L. BENNETT, 28 Cal. 599

By the Court, Shafter, J. This is an action for divorce. The defendant appeals from the judgment and from an order overruling his motion for a new trial. It is insisted that the finding that‘the plaintiff had resided in this State six months immediately preceding, the application is contrary to the evidence. We have examined the evidence bearing upon the point.

It came from one of the plaintiff’s witnesses on cross examination, and its direct tendency was to prove that the plaintiff came to California from the State of New York, her 'place of domicile, “to get a divorce,” and that she intended to return to that State and reside there with her father in Otsego County, as soon as the divorce should be obtained. The main ground of reply to his objection is, that the residence is charged in the complaint and not denied in the answer, and it is claimed that the point is within the analogy of Fox v. Fox, 25 Cal. 587. To this position we do not agree.

In that case the marriage was the fact charged and admitted; and it was held that under the statute, the Court was bound to require proof only of the facts alleged as the “ grounds of divorce,” and that the marriage itself could in no sense be regarded as a ground for its own dissolution. It was further considered “ that the statute was framed to prevent collusion between the parties,” and that the question of marriage was one upon which there could never be any motive to collude, inasmuch as the very object of the proceeding was to dissolve and not to establish that relation.

Residence is not in itself a cause of divorce, but it is a ground upon which the jurisdiction to grant a divorce rests in all cases, both under the statute and by international law. (Bishop, Secs. 150, 720, 721.) The tribunals of a country have no jurisdiction over a cause of divorce, wherever the offense may have been committed, if neither of the parties has an actual bona fide domicile within its territory. A divorce granted here without this prerequisite would not be binding in the State of Hew York, nor in any third State or country.

While marriage does not go to the causes of divorce, it is also true that it is not a fact of jurisdictional consequence. Its relations to the question are not only distinct from, but are much more comprehensive than either; for it goes to the possibility of a divorce on any ground by any tribunal in any country. But residence, though it does not enter into the statute causes of divorce, does enter into the “grounds” of divorce, or constitutes rather the sole ground upon which a decree dissolving the marriage relation in any given instance,-can be regarded otherwise than as apiece of judicial usurpation.

But over and beyond this, residence is palpably within the mischiefs against which it was the object of the statute to guard, and therefore it must be proved.

Should the judgment in this case be affirmed, the affirmance would be but a letter of invitation to the married, domiciled abroad, who have, with or without reason, become emulous of divorce, to take a trip, one or both, to. this" State for the purpose of avoiding delays, or yet more serious impediments at home, with the intention to return thereto as soon as the purpose of their coming shall have been hurried to accomplishment by the aid of an acommodation answer admitting the averment of a six months’ residence on the part of the applicant.

Against this prostitution of the judicial power the statute interposes the only available barrier by requiring, as we construe it, not only that the causes of divorce should be proved to the Court, but the residence of the applicant also, as the sole ground on which it can take cognizance of the question. The judgment is reversed and a new trial ordered.