Bowman v. DuBose, Civ. A. No. 67-46.

• Decision Date: 24 April 1967
• Docket Number: Civ. A. No. 67-46.
• Citation: 267 F. Supp. 312
• Court: U.S. District Court — District of South Carolina
• Parties: Forrest L. BOWMAN, Plaintiff, v. Henry Y. DuBOSE, Jr. and James William Pittman, Defendants.

267 F. Supp. 312

Forrest L. BOWMAN, Plaintiff, v. Henry Y. DuBOSE, Jr. and James William Pittman, Defendants.

Civ. A. No. 67-46.

United States District Court D. South Carolina, Columbia Division.

April 24, 1967.

Bryan & Bahnmuller, Howard P. King, Sumter, S. C., for plaintiff.

E. W. Laney (Turner, Padget, Graham & Laney) J. Edwin Belser, Jr., Columbia S. C., for defendants.

DONALD RUSSELL, District Judge.

The defendant, by motion to dismiss, challenges the claim of diversity of citizenship as a basis for the Court's jurisdiction herein.

The issue posed by the motion revolves about the domicile of the plaintiff. If, as the defendant urges, plaintiff's domicile is South Carolina, jurisdiction fails; should he retain a domicile in West Virginia, diversity exists and the motion must fail.

The undisputed facts establish that in 1942, the plaintiff, then domiciled at Flat Top Yards, West Virginia, enlisted in the United States Army. His post office address was, however, Bishop, Virginia, his home in West Virginia being near the line between the State of Virginia and West Virginia. Save for a two-year interval (1945-7), he remained continuously in the Armed Services at various stations in America and Europe, (his last enlistment in 1947 was in the Air Force), including his final station at Shaw Field, near Sumter, South Carolina, until his retirement April 30, 1966.

It is settled that federal jurisdiction, under the diversity clause, rests on the domicile of the parties at the time of the commencement of the action and not on the place where they may at such time live or dwell temporarily. Miller v. Lee (D.C.S.C.1965), 241 F.Supp. 19, 22. A serviceman, such as the plaintiff was at the time he moved to Sumter, it is equally well-settled, retains his domicile as of date of enlistment "unless he indicates an intent to abandon such original domicile and adopt a new one." Price v. Greenway (C.C.A.N.J. 1948), 167 F.2d 196, 199; Humphrey v. Fort Knox Transit Co. (D.C.Ky.1945), 58 F.Supp. 362, 364, aff. 6 Cir., 151 F.2d 602; Seegers v. Strzempek (D.C. Mich.1957), 149 F.Supp. 35, 36. The reason for this rule is that, "It is presumed that the serviceman has the intention to return to his home, unless the contrary is shown." Finger v. Masterson (D.C.S.C.1957), 152 F.Supp. 224, 225.

It is recognized in this case that the domicile of the plaintiff, at time of enlistment, was West Virginia. It is this domicile upon which he bases his allegation of diversity of citizenship. The defendant relies on the claim of a change of domicile by the plaintiff. Under such circumstances, the defendant bears the burden of proof, for, while the burden of proving diversity as a basis of federal jurisdiction must be borne by the plaintiff, the admitted showing that plaintiff had a domicile at enlistment supporting federal jurisdiction, which domicile, it is presumed, did not change, imposed the burden of showing change of domicile on the defendant. Desmare v. United States (1876), 93 U.S. 605, 610, 23 L.Ed. 959; Sealey v. United States (D.C. Va.1934), 7 F.Supp. 434, 437; Humphrey v. Fort Knox Transit Co., supra, 58 F. Supp. at p. 364. And, to sustain such burden in the case of one in military or civilian government service, the showing "must be clear and unequivocal." Sweeney v. District of Columbia (1940), 72 App.D.C. 30, 113 F.2d 25, 31-33, 129 A.L.R. 1370, with note; Ex parte White (D.C.N.H.1915), 228 F. 88, 90; Kinsel v. Pickens (D.C.Tex.1938), 25 F.Supp. 455, 456 ("the intention to do so must be shown by the clearest and most unequivocal proof").

To establish such "clear and unequivocal" proof, the defendant relies on several circumstances. The defendant particularly stresses that shortly after transfer to Shaw Field the plaintiff moved his family "off-base" into a home he purchased through a V.A. loan. The establishment of a home "off-base" by a serviceman, without more, it has been held, is not sufficient, to evidence an intention to change domicile. Ex parte white, supra; Humphrey v. Fort Knox Transit Co., supra; Kinsel v. Pickens, supra.

In most of the cases in which this situation has arisen, the serviceman had rented, rather than bought the house "off-base" but it has become increasingly normal for persons, whether intending to remain for a limited period of time or permanently, to purchase their home, rather than to rent, if the purchase can be financed through a V.A. or similar type loan with monthly payments no more, and in some cases, less than the rent they might have to pay. The purchase under such circumstances represents what has often been described as "another way of paying rent." In this modern day, there is generally little difference between renting and purchasing, through one of the various types of government-guaranteed loans, a home; the cost is roughly the same in either case. It would seem that no greater significance, in an issue such as that here involved, should thus be given to a purchase than to a rental of a home, if, in either case, the cost is similar. Especially does this conclusion seem appropriate here, in view of the plaintiff's explanation of his purchase. Denying firmly that such purchase manifested an intention to change his domicile, the plaintiff explained in his deposition that his quarters on base were unsatisfactory and "it was cheaper to buy (a house through a V.A. loan) than to pay the rent on the base." This testimony that his monthly payments under his loan were less than the rent exacted for quarters on the base was not disputed. Such purchase, made as testified, would not necessarily establish a change of domicile; at best, it is merely a circumstance to be weighed with other circumstances in the case.

An excellent case in this connection is Gasque v. Gasque (1965), 246 S.C. 423, 143 S.E.2d 811. There, the plaintiff, engaged in government work, had lived in Washington for some 14 years, owning his home there, but claiming all the time his domicile in South Carolina. In sustaining domicile in South Carolina for the plaintiff, the Court said (246 S.C. p. 427, 143 S.E.2d p. 812):

"And it is generally held that temporary absence from one's domiciliary state solely because of government work or employment does not effect a change of domicile within the meaning of the divorce laws, in the absence of clear proof of an intent to abandon the old domicile and acquire a new one."

Deese v. Hundley (D.C.S.C.1964), 232 F.Supp. 848 and Ellis v. Southeast Construction Co. (C.C.A.Ark.1958), 260 F. 2d 280, are clearly distinguishable. In these cases, the serviceman had moved "off-base", renting in one case and purchasing in the other a home, but he had done so, in each case, by his own testimony, for the purpose and with the intention of thereby establishing a change of domicile. The Court in both cases predicated its determination of a change of domicile primarily on the purpose to establish such new domicile as expressly professed and declared by the serviceman. In both cases, the Court gave effect to the serviceman's own declared intention to abandon his former domicile. In this case, on the contrary, the plaintiff positively and categorically disclaimed that his purchase of a home off-base was accompanied with the intention of changing his domicile.

The defendant, also, refers to the fact...