Alburger v. Alburger

• Decision Date: 30 January 1940
• Docket Number: 142-1939
• Parties: Alburger v. Alburger, Appellant
• Court: Pennsylvania Superior Court

10 A.2d 888

138 Pa.Super. 339

Alburger v. Alburger, Appellant

No. 142-1939

Superior Court of Pennsylvania

January 30, 1940

Argued November 16, 1939

Appeal from decree of C. P. No. 3, Phila. Co., Dec. T., 1934, No 2771, in case of Ralph C. Alburger v. Betty Reed Alburger.

Divorce proceeding.

The facts are stated in the opinion of the Superior Court.

Report of master filed recommending dismissal of libel. Exceptions by libellant to report of master sustained in part and decree of divorce granted on ground of indignities only, opinion per curiam. Respondent appealed.

Error assigned, among others, was decree.

Decree reversed.

Earl Jay Gratz, for appellant.

Edmund W. Kirby, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.

OPINION

Baldrige, J.

This action in divorce was brought by a husband against his wife on the grounds of (1) cruel and barbarous treatment and (2) indignities to his person such as to render his condition intolerable and life burdensome. The master recommended the libel be dismissed. The court sustained exceptions in part to the master's report, granting a divorce for indignities only. The respondent appealed.

It is unnecessary for us to discuss the merits of the case as the decree of the court below must be reversed for want of jurisdiction, as the libellant failed to prove that he had acquired a bona fide residence in this Commonwealth at least one whole year immediately previous to the filing of his libel, as is required by the Pennsylvania Divorce Code of May 2, 1929, P. L. 1237, section 16 (23 PS sec. 16).

The libellant was born May 22, 1888, in Philadelphia. In 1895 when he was seven years old, his family moved to Merchantville, New Jersey, where the libellant continued living, with his parents, for twenty-two years. He registered and voted in Merchantville, became a member of a church, and joined a fraternal organization there.

In 1917 he joined the United States Marines at Philadelphia, stating that Merchantville was his place of residence. He reported for duty at the Marine Barracks in Philadelphia, and lived there fourteen months until July, 1918, when he was assigned to Quantico, Virginia. Thereafter he was transferred to different stations, returning to Quantico in 1925. In November of that year he married the respondent, a resident of New York City, in Washington, D. C. Immediately after the marriage, he returned to Quantico and his wife to New York. It was her custom for several months to spend her week-ends in Washington with her husband at different hotels. In January, 1926, they started to live together continuously, first in Fredericksburg and then in Quantico. September of that year he was assigned to Cuba and his wife then went back to New York. Thereafter he was located in different stations in this country and abroad, and at times she for brief periods joined him.

In 1930 the parties were living in Shanghai, where they remained until October, 1932, when they returned to the United States. After a short stay in California they went to New York, he reporting for duty at the Brooklyn Navy Yard. Very shortly thereafter he obtained a leave of absence of ten days, which he spent with his parents in Merchantville.

In January, 1933, he was assigned to the Philadelphia Navy Yard. The first two weeks he lived with his wife at the St. James Hotel. They then moved to a furnished apartment on Baltimore Avenue, Philadelphia, which he rented on a monthly lease. They remained there until June 13, 1933, when he was assigned to duty in a CCC Camp in Kentucky. His wife again went to New York, taking with her their belongings, with the exception of some of her husband's effects which were sent to Merchantville, and his uniforms, books, and certain of his clothing which he sent to a locker in the Philadelphia Navy Yard.

After serving in CCC Camps in Kentucky and Ohio he returned to the Philadelphia Navy Yard in February, 1934, and was assigned to the barracks, where he lived until August, 1935. During this last period he visited his parents in Merchantville two and three times a week, staying overnight on each occasion. On the 19th of December, 1934, he filed his libel in divorce.

During all this period of service he was never assessed nor did he pay any taxes, except an income tax in Philadelphia on two occasions, dates not given, and once when he was located in St. Thomas, Virgin Islands.

We said in Starr v. Starr, 78 Pa.Super. 579, 583, that the words "bona fide," as used in the Act of May 8, 1854, P. L. 644 (which contains the same language as section 16 of the Act of 1929, supra) "mean an intention to make the residence permanent and not merely temporary. Had the word 'domicile' been used instead of residence it might have been consistent with nonresidence, but it was not. 'Domicile' is a matter of intention; 'residence' is a physical fact, and the term 'bona fide residence' means residence with domiciliary intent, i. e., a home in which the party actually lives." (Italics supplied.)

There is no doubt that the libellant was originally a resident of New Jersey, as a "minor child has the same domicile as that of his father:" Restatement, Conflict of Laws, sec. 30, Comment (c); Raymond v. Leishman, 243 Pa. 64, 68, 89 A. 791. The exercise of the right of suffrage by the libellant in New Jersey conclusively shows residence with a domiciliary intent: Reed v. Reed, 59 Pa.Super. 178, 181; Shelton v. Tiffin, 47 U.S. 163, 12 L.Ed. 387. He, therefore, was definitely a resident of New Jersey after attaining his majority.

When a residence is once acquired, it is presumed to continue until it is shown to have been changed, and when a change is alleged, the burden of proving it rests upon the one making the allegation, and two things are indispensable thereto: First, a residence in a new locality, and, second, the intention to remain there. "Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior domicile for another. Until the new one is acquired the old one remains:" Barclay's Estate, 259 Pa. 401, 405, 103 A. 274; Huston v. Huston, 130 Pa.Super. 501, 197 A. 774.

The domicile of a soldier in military service generally remains unchanged, "domicile being neither gained nor lost by being temporarily stationed in the line of duty at a particular place, even for a period of years:" 19 C. J. p. 418, sec. 39; Beale, Conflict of Laws (1935) p. 155.

The learned court below did not discuss, and we are not sure, therefore, whether it considered the question of its jurisdiction. The master was in error when he stated that the libellant gave his address as Philadelphia when he entered the Navy. His testimony (240a) shows that he gave his residence as Cove Road, Merchantville, New Jersey. The master's erroneous conclusion that the Pennsylvania courts had jurisdiction may be attributable to this inadvertent misstatement of fact. The libellant's testimony was rather vague concerning the time his residence began in Philadelphia. He certainly did not definitely state that he regarded himself a resident of Philadelphia prior to January, 1933, as is disclosed by his testimony, reading as follows:

"By the Master:

"Q. There is one thing further about this question of residence that I would like to ask you: Why do you consider Pennsylvania your place of residence?

"A. Because that is where my station and duty is.

"Q. When did you first determine that Pennsylvania was your residence?

"A. The 4th of January, 1933 -- the first?

"Q. Yes.

"A. May 22, 1888.

"Q. You did not have capacity to think at that time.

"A. I considered when I arrived here on January 7, 1933 -- the 1st of January, 1933, is when I considered I came to Philadelphia as a resident because I was stationed in the City at the Navy Yard."

Furthermore declarations alone of domicile are self-serving and...