Alves v. Alves

• Court: D.C. Court of Appeals
• Writing for the Court: Hood
• Citation: Alves v. Alves, 262 A.2d 111, 51 A.L.R.3d 213 (D.C. 1970)
• Decision Date: 17 February 1970
• Docket Number: No. 4715.,4715.
• Parties: Dora Lilian ALVES, Appellant, v. John ALVES, Appellee.

262 A.2d 111

Dora Lilian ALVES, Appellant, v. John ALVES, Appellee.

No. 4715.

District of Columbia Court of Appeals.

Argued October 13, 1969.

Decided February 17, 1970.

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Jean M. Boardman, Washington, D. C., for appellant.

Richard H. Love, Washington, D. C., for appellee.

Before HOOD, Chief Judge, and FICKLING and NEBEKER, Associate Judges.

HOOD, Chief Judge.

Appellant, Dora Lilian Alves, and appellee, John Alves, both British citizens, were married in England on December 13, 1947, and two children were born of the marriage. In September, 1962, appellant and appellee came to the United States where appellee had accepted a permanent position with the International Monetary Fund (hereinafter I.M.F.). The parties resided in Chevy Chase, Maryland, until marital difficulties arose leading to a separation in November, 1965. Appellee left the Maryland home and established residence in the District of Columbia on January 13, 1966. On June 9, 1966, the parties entered into a separation agreement providing, in pertinent part, that appellant would retain custody of the children with visitation rights accorded to the appellee; that appellee would contribute $600 each month to the appellant with $300 per month allocated to the appellant and $150 per month allocated to each child;¹ that appellant's share would be renegotiated if she became gainfully employed or established another residence; and that appellant and the children would continue to live in the Maryland home, with the record title as tenants by the entirety, remaining unchanged until otherwise determined by the parties.

On February 3, 1967 appellee filed a complaint for an absolute divorce on the grounds of voluntary separation.² Appellant answered with a denial that appellee was a bona fide resident of the District of Columbia and counterclaimed for a divorce on the same grounds prayed for by appellee, for permanent custody of the children, for an increase in support for the children from $150 to $200 per month, for an award of alimony in the amount provided in the agreement and for the court to exercise in personam jurisdiction to require appellee to convey his interest in the Maryland home to appellant. At trial appellant abandoned her claim for divorce. The trial court found appellee to be a bona fide resident of the District of Columbia, awarded appellee an absolute divorce, and approved the separation agreement, finding it to be fair and reasonable and intended as a final settlement of all claims between the parties. However, the court did not incorporate the agreement into the decree and made no ward as to custody, child support, or alimony and declined to exercise jurisdiction to settle the rights of the parties in the Maryland home.

On this appeal, appellant contends the trial court erred: (1) in finding that appellee was a bona fide resident of the District of Columbia; (2) in not awarding her custody of the children; (3) in failing to increase the amount of child support; (4) in refusing to make an award of alimony; and (5) in finding it had no jurisdiction to deal with the Maryland property.

To maintain an action for divorce, one of the parties must be a bona fide resident of the District of Columbia for at least one year next preceding the commencement of the action.³ The requirement of bona fide residence has been construed as meaning one of the parties must be domiciled in the District of Columbia,⁴ i. e., physical presence with an intent to abandon the former domicile and to remain in the District of Columbia for an indefinite period of time.⁵ Since the question of domicile is primarily concerned with intention and the subsequent manifestations of conduct, we must review the facts.⁶

Before coming to the United States, appellee sold all his property and severed his ties with his employer, the Bank of England. Appellee obtained a British passport (good for ten years and renewable every five years) and prior to his entry into the United States he obtained the necessary visa. This was a special nonimmigrant visa (renewable every two years) permitting appellee to remain in the United States as long as he was employed by the I.M.F. During his stay in the United States, appellee, at any time, had the right to apply to the Attorney General for a readjustment of his status to become a permanent resident.⁷ Though appellee testified the I.M.F. does not encourage its employees to become permanent residents, there was no evidence to indicate appellee would have lost his job if for some reason he applied for permanent residence. In any case, appellee apparently saw no reason to have his status readjusted as he was satisfied with his position and it appeared to appellee that he could remain in his position for an indefinite time. Thus, appellee testified that when the parties separated, he moved into the District of Columbia in order to be near his place of employment and close enough to the children to visit with them. From the record it seems that appellee's only connection with Great Britain was his retention of English citizenship.⁸

Appellant concedes that an alien can acquire a domicile in the United States. However, appellant contends the appellee did not have the legal capacity to form an intention to become a domiciliary of the District of Columbia since he was living here at the grace of Great Britain and the United States. It is further argued by appellant that the appellee must obtain admittance as a permanent resident before he can become domiciled in the District of Columbia. We do not agree.

The relationship between an alien⁹ and a jurisdiction such as the District of Columbia, and an alien and the United States are not of equal significance.¹⁰ Domicile is concerned with one's physical presence in a particular locality and the "nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance."¹¹ It is the appellee's connection with the District of Columbia and the legal rights and duties which accompany his presence here that is of importance. Appellee's retention of British citizenship does not preclude his becoming domiciled in the District of Columbia.¹² Nor do we think that the fact appellee did not apply for permanent residence in the United States forecloses the possibility of his being domiciled in the District of Columbia. Under the Immigration and Nationality Laws it is possible, for a variety of reasons, for an alien to remain in the United States for many years, as appellee has done, without applying for permanent residence.¹³ Furthermore, to impose such a requirement would have the effect of denying appellee access to our courts without regard to the period of time he has resided in the District of Columbia,¹⁴ his intentions in moving into the District of Columbia and other relevant factors. Just as aliens are subject to the jurisdiction of our courts, they should he entitled to invoke the jurisdiction of the courts for their own benefit.¹⁵

Similar reasoning underlies any discussion of appellee's entrance into the United States on a nonimmigrant visa, renewable every two years, to work for the I. M.F. and its bearing on the issue of domicile.¹⁶ "The object of requiring visas, or at least one of the most important objects, has been to afford a preliminary investigation of the fitness of the alien to enter the country before he comes to our shores and there applies for admission."¹⁷ A visa is a document of entry required of aliens by the United States Government and is a matter under the control of the Government. It has little relevance to the question of domicile. The fact that appellee entered the United States on a nonimmigrant visa to work for the I.M.F. does not preclude a finding that appellee could become domiciled in the District of Columbia.¹⁸

Appellee maintained his British citizenship but otherwise severed all his ties with Great Britain. He testified that he intended to remain in his position with the I.M.F. indefinitely and could foresee no reason why he would be called upon to leave this position. In fact, appellee had his visa renewed several times previous to the institution of this action, an indication of his intent to remain in the United States for an indefinite period of time.¹⁹ One of the main reasons appellee moved into the District of Columbia was to be near his office at the I.M.F. By intending to remain indefinitely in the District of Columbia appellee negatived a definite intent to return to Great Britain²⁰ At best it might be argued appellee had a floating intention to return to Great Britain conditioned upon an uncertain event — his dismissal from the I.M.F. — which event may never occur. But such a floating intention²¹ to return to Great Britain is not sufficient to require a holding that appellee was still domiciled in Great Britain.²² Only if appellee had a definite and fixed intention of returning to Great Britain could it be said he did not abandon his English domicile.²³ There is no evidence to indicate appellee definitely intended to return to Great Britain but rather all the evidence leads to the conclusion that appellee intended to remain in the District of Columbia for an indefinite time. We think the trial court correctly found appellee to have been a bona fide resident of the District of Columbia for purposes of this divorce action.

Appellant claims the trial court abused its discretion in not awarding her custody of the two minor children. Appellee did not challenge the appellant's right to have custody of the children,²⁴ but since appellant preferred to have a judicial award of custody, we think that at the outset it is necessary to determine whether the trial court had jurisdiction to make such an award. In Schiller v. Schiller, D.C.App., 194 A.2d 665 (1963), we reviewed the various reasons offered by the courts for assuming jurisdiction in custody matters. We did not...