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Gahn v. Gahn

Superior Court of Delaware, New Castle County

June 17, 1955

Rolf E. GAHN, Plaintiff,
v.
Mildred B. GAHN, Defendant

Action for divorce on ground of insanity. The Superior Court, Layton, J., held that evidence was insufficient to sustain burden of proving that defendant, who had moved from New Jersey to institution in Delaware, had established domicile in Delaware.

Petition denied.

Page 903

William F. Lynch, II, Wilmington, for plaintiff.

W. Thomas Knowles, Wilmington, for defendant.

LAYTON, Judge.

Petitioner, a New Jersey resident, has been separated from his wife since 1938. Since that time, defendant has lived in Newark, N. J., New York City, visited in the West and with her daughter in Wilmington, Delaware.

In January 1948, her daughter, Mrs. Ryan, hereafter called Trustee, was informed by telephone that defendant was in a mental observation ward in Bellevue Hospital in New York. Upon arrival, the Trustee found her mother in a confused condition mentally and, with the assistance of petitioner, defendant was brought to Wilmington, Delaware. Not more than three days after her arrival here, she was placed in the State Mental Hospital. Thereafter, on May 28, 1948, a Trustee was appointed for her under the provisions of Title 12, § 3702, Del.C., and she has remained in this institution ever since.

In 1954, petitioner instituted this action for divorce upon the grounds of insanity pursuant to Title 13 Del.C. § 1522(10).[1]

[49 Del. 370] Subsection (1) of § 1525, Title 13 Del.C. provides that no action for divorce may be instituted

‘ Unless one of the parties has been for the two years next preceding the commencement of the action a bona fide resident of this State.’

Although the defendant's answer admitted that defendant was a Delaware resident, Judge Carey at the trial raised the question of jurisdiction upon his own motion. Petitioner's admitted New Jersey residence coupled with defendant's extremely doubtful Delaware residence caused the trial Judge to suggest a continuance in order to enable petitioner to secure more evidence on this point. Such additional evidence as available, though very meager, has now been taken which, together with the purely formal report of the Commission appointed in accordance with the Statute,[2] constitutes the record before me.

Petitioner takes the position either that defendant was a bona fide resident of this State for more than two years preceding the commencement of this action or, in the alternative, that because of acts and conduct hereinafter discussed, she is estopped from denying that Delaware was her residence. Defendant's Trustee opposes both these contentions.

I take it that both parties concede that the words ‘ bona fide resident’ as used in Title 13 Del.C. § 1525 are synonymous with domicile. Ainscow ...


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