ALLEN v. ALLEN

• Decision Date: 21 June 1948
• Docket Number: No. 5080,5080
• Citation: 52 N.M. 174,194 P.2d 270
• Parties: ALLEN v. ALLEN.
• Court: New Mexico Supreme Court

52 N.M. 174

194 P.2d 270

ALLEN

v.ALLEN.

No. 5080.

Supreme Court of New Mexico.

May 17, 1948.

Rehearing Denied June 21, 1948.

[194 P.2d 271, 52 N.M. 175]

W. C. Whatley, of Las Cruces, for appellant.

George A. Shipley, of Alamogordo, for appellee.

LUJAN, Justice.

This is an appeal from a judgment granting a divorce to appellee from his wife, the appellant, and presents a question of jurisdiction.

The only point relied upon for reversal is the court's action in refusing to dismiss appellee's complaint for the reason that it was made to appear that the appellee was not in fact, and had not been, an actual bona fide resident of the State of New Mexico, for one year preceding the filing thereof.

Appellee, by his complaint, among other things alleged 'that he is a resident of Otero County, New Mexico, and has been a bona fide resident of said county and state continuously for more than one year immediately preceding the filing of his complaint.' By her answer, appellant denied this allegation and further allegedthat appellee is and has been a resident of the State of Illinois for more than one year prior to the filing of his complaint.

Following the hearing on June 14, 1947, on the motion to dismiss the complaint, the appellant and her Illinois attorney returned to Chicago, and on June 20, 1947, an order was entered denying the motion and giving the appellant until June 21, 1947, in which to answer. On said date the answer was filed and on June 23, 1947,appellee noticed the case for trial as of June 30, 1947. On that date the appellant filed a motion requesting additional time within which to take depositions of nonresident witnesses and to further enable her to contact other witnesses preparatory to taking their testimony in order to defend herself. At this time both the appellant and her counsel in chief were back in Chicago, and upon denial of her motion, her local counsel, announced in open court that he would not further participate in the hearing and withdrew from the court room, thereupon the trial proceeded ex parte to its determination.

Chief Justice Mills, speaking for the court in the case of De Baca v. Wilcox, reported in 11 N.M. 346, 68 P. 922, 923, which is analogous to the case in bar, said: 'We will now consider the second point,-as to whether or not we are estopped from considering the points assigned as error, because plaintiffs in error suffered a judgment to go against them by default in the lower court, and reserved no exceptions on which to base a writ of error. It is a general rule that errors complained of must be objected to, and exceptions saved, or they will be disregarded in an appellate court. This principle has been frequently enunciated by this court. Neher v. Armijo , 66 P. 517 and cases cited. But we have also recognized the exception to the general rule which authorizes us to notice without exception jurisdictional and other matters which may cause a case to be inherently and fatally defective. [Neher v. Armijo, 11 N.M. 67, 66 Pac. 517]. The question of jurisdiction may be raised for the first time in the appellate court, or the court may, of its own motion, take notice of such want of jurisdiction. 2 Cyc. 680.' (Emphasis ours)

The appellee, at the time he was was inducted into the United States Army and prior to his transfer to Alamogordo, New Mexico, was a legal resident of the State of Illinois.

The right to apply for or obtain a divorce is not a natural one, but is accorded only by reason of statute, and the state has the right to determine who are entitled to use its courts for that purpose and upon what conditions they may do so. 17 Am.Jur. section 8, page 151.

Section 25-704, 1941 Comp., reads as follows: 'The plaintiff in action for thedissolution of the bonds of matrimony must have been actual resident, in good faith, of the State for one (1) year next preceding the filing of his or her complaint; * * *' (Emphasis ours)

The appellant testified as follows regarding his claim of residence in New Mexico.

* * *

'Q. Where do you live, Mr. Allen? A. At 411 Thirteenth Street, Alamogordo, New Mexico.

'Q. That's in Otero County? A. That's right.

'Q. How long have you been a resident of Otero County, New Mexico? A. Since September 20, 1945.

'Q. Have you been a resident of the State of New Mexico continuously since that time? A. Yes, I have.

'Q. And resided here in Otero County? A. That is correct.'

Duncan Campbell of Alamogordo, New Mexico, testified for the appellee as follows:

* * *

'Q. At any time soon after you first became acquainted with Captain Allen about Christmas, 1945, did he ever discuss with you his plans as to what he intended to do when the war was over? A. We used to have quite a few discussions and we talked quite a few times about his wanting to go into business here in Alamogordo.

'Q. From your conversation with him with reference to his future plans, did you understand that this was to be his future home? A. That's what I understood from his plans.' (Emphasis ours.)

The trial court found as follows: 'That the plaintiff, Byron D. Allen, is a bona fide resident of the State of New Mexico, and has been a resident of said State and of Otero County, New Mexico, continuously for more than one year immediately prior to the filing of his complaint herein on the 24th day of March. A.D. 1947.'

There is apparently no question that the appellee actually lived, and continued to live in this state during the required period. The dispute is about whether such dwelling or living here constituted him a bona fide resident in the use of that term in the statute. We are of the opinion that it did not.

Article 7, Section 4, of the New Mexico Constitution provides: 'No person shall be deemed to have acquired or lost his residence by reason of his presence or absence while employed in the service of the United States or of the state, nor while a student at any school.'

However, this section of the constitution does not mean that a soldier stationed in this state may not acquire residence inthis state, but it does mean that he may not acquire a residence from the mere fact that he was stationed therein for whatever period of time he may be so stationed. Apart from that service he must establish a residence in the state with the intention of making it his permanent residence.

The only external manifestation appellee made as to his intention to make Alamogordo his permanent home was the renting of a dwelling house for himself and family. This, however, was an incident to his army life. Residence in New Mexico was not his object.

While ordinarily the domicile of a soldier is not changed or lost by his induction into military service, where he is under orders from his superiors and subject to transfer to different posts, as in the case in bar, yet, a new domicile may be acquired by a soldier as well as by any civilian if both the fact and the intent concur. Kankelborg v. Kankelborg, 199 Wash. 259, 90 P.2d 1018; Ex parte White, D.C., 228 F. 88; Trigg v. Trigg, 226 Mo.App. 284, 41 S.W.2d 583; Gallagher v. Gallagher, Tex.Civ.App., 214 S.W. 516; Harris v. Harris, 205 Ia. 108. 215 N.W. 661; Wilson v. Wilson, Tex.Civ.App., 189 S.W.2d 212; Pettaway v. Pettaway, Tex.Civ.App., 177 S.W.2d 285.

Appellee urges that we are bound by the substantial evidence rule. Ordinarily an appellate court will not disturb, but will adopt, the findings of the trial court where there is a conflict, in the evidence. The rule is otherwise where there is a substantial failure of the evidence to support the findings. In this case the appellee came to the State, not of his own volition, but by order of the United States Government, and was subject to be transferred whenever his superiors saw fit so to do. 'Actual resident in good faith' as used in our statute is very much the same language as used in the statutes of other states concerning divorces, and we are therefore not without a construction of the expression by the highest courts of such states. In Hamill v. Talbott, 81 Mo.App. 210, 215, the court said: 'The statutory terms 'resident or residence' as used in divorce statutes, contemplate, as we think, an actual residence with substantially the same attributes as are intended when the term 'domicile' is used. They do not mean the place where the defendant in fact resides for the time being. They mean a residence of a permanent and fixed character, a domicile.'

In the case of Shilkret v. Helvering, 78 U.S.App.D.C. 178, 138 F.2d 925, 927, the court said: 'The Commissioner argues that in deciding the case we are bound by the substantial evidence rule and that it is not our function to weigh the evidence or to choose between conflicting inferences. On the ground that there is substantial evidence to support the findings, he says our duty is to affirm without more. But we think that rule has not applicability here. Domicile, we recentlysaid, is a compound of fact and law, and where, upon admitted or undisputed facts, the decision turns on controverted legal principles, it is reviewable. Here there is no dispute as to the essential facts, the conflict relates only to their legal effect. The question must be determined by the application of certain rules long established by the courts, State and Federal, to find where a man's home really is, and there is no dearth of authority on the subject. In one of our most recent pronouncements in this respect, we said that to effect a change from an old and established domicile to a new one, there must be the absence of any present intention of not residing in the latter permanently or indefinitely. Or, stated differently, there must be a fixed purpose to remain in the new location permanently or indefinitely. For domicile once acquired is presumed to continue until it is shown tohave been changed, and to show the change two things are indispensible,-'First, residence in the new locality; and, second, the intention to remain there. The change cannot be made except facto et animo. Both are...