Appeal from Superior Court, Pima County; Benjamin Blake, Judge.
Fulbright & Sult, of Florence, for appellant.
Bilby & Shoenhair, of Tucson, for appellee.
Morgan, Judge. Stanford, C. J., and LaPrade, J., concurring.
[65 Ariz. 98] Plaintiff, claiming to be a resident of Pima County, brought suit for divorce March 15, 1945 in the superior court of that county upon the ground that he and his wife, the defendant, had not lived nor cohabited together for a period of five years. Defendant admitted the lack of cohabitation for the five-year period, but raised two defenses: First, that plaintiff was not an actual bona fide resident of the state for one year and of the county for six months prior to the institution of the action; Second, that based upon the willful and wrongful conduct of plaintiff she had, about the 15th of April, 1942, in the superior court of Pinal County, secured a decree of divorce a mensa et thoro from plaintiff, which from date of entry remained in full force and effect.
The facts proven were: The parties were married in 1935. Since 1939 they did not live nor cohabit together. Plaintiff, following the separation, went to Tucson, Pima County, to live with his sister. He worked for cattle ranch operators, the owner of properties in that county, who also operated shipping and dipping pens at Nogales, Santa Cruz County. He had the
management of the pens at Nogales and performed ranch hand work on the Pima County properties. During the season, when cattle were being imported from Mexico, he spent half the time in Nogales, and kept a room there, the rent of which was paid by his employers. He occupied this room three to four nights a week during the shipping season, approximately eight to nine months of the years 1940 and 1941. The effects which he kept there were work clothes, equipment and supplies used in connection with the cattle pens operation. During the off shipping or importation periods, he spent little time at Nogales. All his personal effects, other than [65 Ariz. 99] the work clothes mentioned, were kept at his sister's home in Tucson. His laundry was done in that city. He considered Tucson as his residence except for a period in 1940 when he claimed a residence in Nevada. His sister's home was his mailing address.
In 1940 plaintiff registered under the Selective Service Act, giving his residence as Nogales. He was inducted as a registrant of that county in 1942. The Tucson residence of his sister appears in his army record as his permanent address. During the period of his service he was actually and physically present in Arizona and Pima County about 40 days. In the spring of 1944 plaintiff registered as a voter of Pima County. He was still in the armed forces when this action was filed.
The trial court rejected defendant's offer of the limited divorce decree entered in Pima County, found the issue of residence in favor of plaintiff, and entered judgment for divorce on plaintiff's complaint, from which defendant appealed.
Three questions are presented:
(1) When a limited divorce decree is entered under the provisions of sections 27-812, -813, -814, ACA 1939, and is in full force and effect, may an absolute divorce ...