Hawes v. Club Ecuestre El Comandante

• Decision Date: 18 May 1979
• Docket Number: No. 78-1387,78-1387
• Citation: 598 F.2d 698
• Parties: Ellen HAWES, for herself and in Representation of the minors Ana Francisca Hawes and Maria Cristina Hawes, Plaintiffs-Appellants, v. CLUB ECUESTRE EL COMANDANTE et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 698

598 F.2d 698

Ellen HAWES, for herself and in Representation of the minors Ana Francisca Hawes and Maria Cristina Hawes Plaintiffs-Appellants, v. CLUB ECUESTRE EL COMANDANTE et al., Defendants-Appellees.

No. 78-1387.

United States Court of Appeals First Circuit.

Argued Feb. 6, 1979.

Decided May 18, 1979.

Eleanor Jackson Piel, New York City, for plaintiffs-appellants.

Antonio Gnocchi Franco, Santurce, P. R., with whom Amancio Arias Cestero, and Amancio Arias Guardiola, Santurce, P. R., were on brief, for Club Ecuestre El Comandante, et al., defendants-appellees.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, JAMESON, District Judge. ^*

BOWNES, Circuit Judge.

Plaintiffs-appellants appeal the dismissal of their tort action for lack of diversity citizenship. 28 U.S.C. § 1332(a)(1), Fed.R.Civ.P. 12(b)(1). On April 17, 1974, John Hawes ¹ and Ellen Hawes, husband and wife, alleging citizenship in New York, brought suit against the defendants, including four equestrian clubs and federations, the municipality of San Juan, Puerto Rico, an insurance company and thirty-eight individual defendants, for injuries incurred by John Hawes.

The issue is whether John and Ellen Hawes were domiciled in New York or, as the district court found, in Puerto Rico at the time the lawsuit was commenced.

The district court, as was within its discretion, determined the question of jurisdiction on answers to interrogatories, deposition statements and an affidavit of Ellen Hawes without holding a hearing. Gibbs v. Buck,307 U.S. 66, 71-72, 59 S.Ct. 725, 33 L.Ed. 1111 (1939); 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3612 at 726-27 (1975).

As is usual in domicile cases, there is no dispute as to the facts; it is their interpretation that gives rise to the problem. Although it is clear that John and Ellen Hawes were domiciled in Puerto Rico from 1949 until May 26, 1973, when they left for New York, the salient facts of their Puerto Rican residency are a necessary factor in the domicile question. After coming to Puerto Rico in 1949, the Haweses acquired a ten "cuerdos" farm in Cidra, which is near the center of the Island, where they kept horses and spent their weekends. On the date of the accident, which fostered this suit, the Haweses resided in an apartment at the faculty residence of the University of Puerto Rico. Ellen Hawes had been employed by the University for almost twenty years; initially, she worked in the registrar's office and later was a special assignment officer in the office of the president. John Hawes was a self-employed artist specializing in calligraphy. He also taught part-time at the University and worked as a salaried employee for a private corporation.

The accident, which changed John Hawes from a normal man into a hopeless cripple occurred on April 17, 1973. John and Ellen Hawes were attending a horse show at the Hiram Bithorn Stadium sponsored by defendant Club Ecuestre El Comandante and others in which their older daughter, Ana Francisca, was to compete in the jumping event. During one of the competitions, a horse jumped over the wooden barriers separating spectators from contestants and struck Hawes in the back with both front legs. He was taken to the Municipal Hospital and placed in the intensive care unit where he remained for six weeks as a complete quadriplegic. Since Hawes showed no improvement during the six week period, the doctors informed his wife that his only chance for improvement was treatment in a rehabilitation center. Because none was available in Puerto Rico, the Institute for Rehabilitation Medicine of New York University located in New York City was chosen. This choice was influenced by the fact that Mrs. Hawes originally came from Brooklyn and she and her husband had lived in New York City after their marriage prior to moving to Puerto Rico. She, therefore, had friends and relatives in New York.

On May 26, 1973, John Hawes entered Mount Sinai Hospital in New York preparatory to being admitted to the Institute for Rehabilitation Medicine. Ellen Hawes and her younger daughter, Maria, came to New York on the same day. ² Mrs. Hawes took with them only their personal belongings, leaving her furniture in Puerto Rico with a friend. Residence was obtained in an apartment on 9th Avenue. After arriving in New York City, Mrs. Hawes closed her bank accounts in Puerto Rico and opened a new one in Manhattan. She obtained a New York driver's license. Maria, the younger daughter, was withdrawn from school in Puerto Rico and enrolled in school in New York City. The older daughter, Ana Francisca, who was eighteen, remained in Puerto Rico. She dropped out of school, worked for a year in Puerto Rico, and then moved to Florida. For a time, Mrs. Hawes was able to do some work for the University of Puerto Rico, but then decided to take annual sick leave. After this, she was granted leave without pay on a year-to-year basis. This was done so she could retain her accumulated retirement benefits and qualify for retirement at the age of fifty-eight. Her retirement eligibility date was June 30, 1978.

By September or October of 1973, it became clear that John Hawes would require round the clock institutional care for the rest of his life. Since she could not afford the cost of the Institute for Rehabilitation Medicine and since it did not keep patients who were hopeless, Mrs. Hawes began to look for another less expensive hospital. Her younger daughter became emotionally upset and required psychiatric care. This necessitated treatment in New Canaan, Connecticut, and also changing schools from New York City to Connecticut. Mrs. Hawes maintained her apartment in New York City and also rented a house in Weston, Connecticut, in the latter part of 1973 so as to be near her daughter. She worked part-time in 1973 and part of 1974 at a furniture store in Westport, Connecticut, and commuted to New York three or four times a week to see her husband.

On April 17, 1974, John and Ellen Hawes filed suit in the District Court of Puerto Rico claiming New York citizenship. He was still at the Institute. The facts subsequent to the filing of the lawsuit are also important. Ellen Hawes filed federal income taxes from New York City in 1974 and 1975. She filed and paid a New York state income tax in 1975, but filed no return in 1974 because her income was less than $4,000. Mrs. Hawes did not vote in New York City. The record is silent as to her voting habits in Puerto Rico. In August, 1974, John Hawes was transferred to a less expensive rehabilitation center in Guadalajara, Mexico, where he remained until his death in June of 1975. Mrs. Hawes remained in New York City, since she was unable to obtain adequate employment in Mexico. Sometime in the summer or fall of 1974, she obtained a full time job with New York Magazine, which had its offices in Manhattan, and moved back to her New York apartment.

In the spring of 1975, Mrs. Hawes was contacted by the University of Puerto Rico Press and accepted its offer to become its travelling editor. This job was particularly attractive because it allowed her to complete her retirement requirements with the University. She started work in this capacity on September 1, 1975. Her job required travel through the United States to communities with concentrations of Hispanic population. After about a year in this capacity, she returned to Puerto Rico and continued to work for the University until her retirement on June 30, 1978. On her return, she occupied the same apartment on the University campus that she and her husband had lived in up to the accident. ³

On the basis of these facts, the district court found "that plaintiffs failed to show their intention to abandon their old domicile in Puerto Rico and acquire a new one in New York City." We reverse.

The basic law as to domicile has been well recognized for many years. Mr. Justice Holmes defined domicile pragmatically: "The very meaning of domicil is the technically pre-eminent headquarters that every person is compelled to have in order that certain rights and duties that have been attached to it by the law may be determined." Williamson v. Osenton, 232 U.S. 619, 625, 34 S.Ct. 442, 443, 58 L.Ed. 758 (1914).

"Now, it is elementary that, to effect a change of one's legal domicil, two things are indispensable: First, residence in a new domicil; and second, the intention to remain there." Sun Printing & Publishing Association v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 48 L.Ed. 1027 (1904). There must be an intention to remain at the new residence indefinitely; it is not required that the intention be to stay there permanently. A "floating intention" to return to a former domicile does not prevent the acquisition of a new domicile. Gilbert v. David, 235 U.S. 561, 569, 35 S.Ct. 164, 59 L.Ed. 360 (1915).

" To acquire a domicile of choice in a place, a person must intend to make that place his home for the time at least." Restatement 2d, Conflict of Laws § 18 (1971). There is no minimum period of residency required. A citizen of the United States can instantly transfer his citizenship from one state to another. Morris v. Gilmer, 129 U.S. 315, 328, 9 S.Ct. 289, 32 L.Ed. 690 (1889). A person may have only one domicile at a time and, until a new one is acquired, the established one continues, Restatement 2d, Conflict of Laws § 19 (1971), and, once acquired, the presumption is that it continues until changed. Mitchell v. United States, 21 Wall. 350, 88 U.S. 350, 353, 22 L.Ed. 584 (1874). It has long been the rule that motive for the change in residence is irrelevant in determining domicile. Williamson v. Osenton, supra, 232 U.S. at 625, 34 S.Ct. 442, Morris v. Gilmer, supra; Peterson v. All City Insurance Co., 472 F.2d 71, 74 (2d Cir. 1972).

There is an overlay of federal jurisdictional requirements that must also be considered. For purposes of diversity jurisdiction under 28 U.S.C. § 1332(a) (1...