Modified on Denial of Rehearing January 18, 1951. See 71 Ariz. 237, 226 P.2d 142.
Paul M. Roca, of Phoenix, for appellant. Philip F. LaFollette, of Madison, Wisconsin, of counsel.
Frank W. Beer, of Phoenix, for appellee.
La Prade, C. J., and Udall, Stanford, Phelps and De Concini, JJ., concur.
[71 Ariz. 200] The facts in this case are that Gioia Grimditch, referred to herein as plaintiff married William Henry Grimditch, Jr., hereinafter called defendant, in New York City on May 17, 1943. They spent their honeymoon at Lake Placid, New York, where they remained until defendant was inducted into the U. S. Army in August, 1943. He was stationed at various army [71 Ariz. 201] posts in the Eastern part of the United States until October, 1945. Plaintiff lived with him most of that time except for a short period when their first child, Billy, was born in September, 1944.
In October, 1945, defendant was shipped to Korea and remained there until October, 1946, when he returned to the United States and was discharged from the army. After defendant departed for overseas plaintiff spent about 30 days between New York and Rydal, Pennsylvania. Defendant had been reared, and was living at the latter place at the time of his marriage to plaintiff. This is the only period as shown by the record that plaintiff lived at Rydal. She came to Phoenix in December, 1945, and lived in the home of her adoptive father the greater part of the time during her husband's absence overseas. Gloria, the second child of plaintiff and defendant, was born during that period of time and plaintiff was in the Good Samaritan Hospital for only a few days. Upon defendant's return to Phoenix from Korea friction immediately
arose between plaintiff and defendant. Discussions were had at that time between them concerning a divorce and the custody of the children. In an effort to accommodate their differences they went to Mexico City at the suggestion of plaintiff with the understanding that they would go back East to live upon their return to Phoenix. On their return trip, however, plaintiff was seriously injured in an automobile accident a short distance west of El Paso, Texas. The defendant was driving the car and escaped with only minor injuries. The accident occurred on November 2, 1946. The plaintiff was hospitalized at St. Joseph's Hospital at Phoenix, Arizona, the following day where she remained until June 30, 1947.
About two weeks after the accident defendant discovered a number of letters addressed to plaintiff from a prominent young Phoenician, and a diary kept by plaintiff which purported to chronicle her activities during the period defendant was overseas. Defendant gathered this evidence together and with the consent of the physician attending plaintiff, went back to his home at Rydal, Pennsylvania, where he showed the documents in question to his parents and consulted his attorneys concerning the proper course to take.
He returned to Phoenix in about 30 days and on January 1, 1947, went to the hospital where plaintiff was confined to her bed and told her of his discovery and stated that he knew of her sleeping with other men during his absence, and that she was not a proper person to have the custody of their children. He demanded that she surrender their custody to him. This she refused to do but agreed that he might take Billy, the oldest child and she would take Gloria, the baby. Defendant declined to accept this offer and informed her that he would bring court action to obtain their custody. He returned shortly thereafter [71 Ariz. 202] to Rydal, Pennsylvania, where on the 8th day of January, 1948, almost a year after his departure from Phoenix defendant filed an action in libel in the courts of Pennsylvania seeking a divorce from plaintiff upon the alleged ground of adultery in the State of Arizona with divers persons alleged to be unknown to the libelant.
Shortly after leaving the hospital on June 30, 1947, plaintiff filed an action for divorce against defendant in the superior court of Maricopa County. On January 9, 1948 she dismissed that cause of action and filed a second cause of action asking for a divorce from defendant based upon cruelty and desertion. Thereafter defendant filed motions to dismiss the complaint and for stay of proceedings in Arizona upon the ground that an action was then pending in the court of common pleas in Pennsylvania where defendant was seeking a divorce from plaintiff; that the Arizona court was without jurisdiction to try such cause for the reason that neither party to such divorce action was domiciled in Arizona. Along with these motions defendant filed his answer and counterclaim and at approximately the same time filed a petition for a writ of habeas corpus directing plaintiff to produce the children of the parties in court at a time certain and show cause if any she had why custody of said children should not be, by order of the court, awarded to the defendant. By stipulation the two causes of action were consolidated and tried together.
The trial court denied the motions to dismiss and for stay of proceedings and thereafter the cause proceeded to trial to the court sitting without a jury. At the close of the case the court quashed the writ of habeas corpus and rendered judgment dissolving the marital relations between the parties without designating who was at fault and gave the custody of the children to plaintiff except as therein provided. From this judgment defendant appeals and assigns as error:
1. The denial by the trial court of defendant's motion to dismiss upon the ground that the evidence was insufficient to give the court jurisdiction of the subject matter.
2. The granting of the divorce for the reason that the court was without ...