Bruce E. M. v. Dorothea A. M.

• Decision Date: 18 October 1982
• Citation: 455 A.2d 866
• Parties: BRUCE E.M., Husband, Petitioner Below, Appellant/Cross-Appellee, v. DOROTHEA A.M., Wife, Respondent Below, Appellee/Cross-Appellant. . Submitted:
• Court: Supreme Court of Delaware

Page 866

455 A.2d 866

BRUCE E.M., Husband, Petitioner Below, Appellant/Cross-Appellee, v. DOROTHEA A.M., Wife, Respondent Below, Appellee/Cross-Appellant.

Supreme Court of Delaware.

Submitted: Oct. 18, 1982.

Decided: Jan. 11, 1983.

Upon appeal from the Family Court of the State of Delaware in and for New Castle County. Affirmed in part, reversed in part.

David Clayton Carrad, Wilmington, for appellant/cross-appellee.

David Roeberg (argued), and Frederick T. Haase, Jr., Roeberg & Associates, P.A., Wilmington, for appellee/cross-appellant.

Before HERRMANN, C.J., HORSEY and MOORE, JJ.

MOORE, Justice:

The husband appeals from a judgment of the Family Court granting his wife a final decree of divorce on her counterclaim. He contends that the Family Court lacked personal jurisdiction over him. We disagree and affirm. The wife cross-appeals from portions of the same order dismissing the husband's divorce petition allegedly for want of prosecution. According to the wife, this dismissal had the effect of limiting her alimony rights due to the court's incorrect perception of her status as a counterclaimant. We agree and reverse that part of the Family Court order.

I.

The facts pertinent to our decision are somewhat convoluted, having been made so, at least in critical part, by certain improper legal tactics of the husband. The parties were married in 1966 and lived in Pennsylvania until they separated in April 1977. The wife remained a Pennsylvania resident, but the husband then moved to Delaware, apparently living in motels. In May 1978 he occupied an apartment north of Wilmington, where he lived when he filed his original divorce petition on March 22, 1979. That pleading, verified as required by Delaware law, stated that the husband had been a resident of Delaware since May 1978. ¹ The ground for divorce was the irretrievable breakdown of the marriage based on incompatibility of the parties.

The wife denied all allegations of the petition and requested interim and permanent alimony if the husband's petition for divorce was granted. Less than a week before the scheduled hearing on the husband's petition, he moved to formally dismiss it, not for any purposes of attempting to effect a reconciliation, but to avail himself of what he perceived to be a less onerous alimony statute that had been enacted since his petition was filed. By its terms the new law was not applicable to the husband's pending suit for divorce. The wife opposed this motion, but before the Family Court decided it the husband filed a second petition for divorce in a further attempt to take advantage of the change in the alimony law. ² Again, he swore under oath that he was a Delaware resident.

The Family Court denied the husband's motion to dismiss his first petition, holding that dismissal would prejudice the alimony rights of the wife and contravene public policy. We affirmed that decision. Husband (B.E.M.) v. Wife (D.A.M.), Del.Supr., 428 A.2d 1148 (1981), aff'g, H.C.M. v. E.W.M., Del.Fam., 413 A.2d 1271 (1980).

The trial court noted in H.C.M. that if either party failed to apply for a hearing within one year of its decision, the husband's original petition would be dismissed for want of prosecution pursuant to Family Court Rule 466. ³ H.C.M., 413 A.2d at 1275. The wife filed a timely request for a hearing on husband's original petition, and amended her answer to the original petition by asserting a counterclaim for divorce. Because the wife was a Pennsylvania resident, jurisdiction of her counterclaim could only be founded upon the husband's Delaware residence. The husband's reply to the counterclaim denied all its allegations, including his Delaware residency. This was done despite his two previously sworn divorce petitions to the contrary.

At trial the husband declined to proceed on his original petition. Quite properly, the Family Court heard evidence on the wife's counterclaim and entered a decree of divorce thereon.

II.

A.

Relying on Wife (J.F.V.) v. Husband (O.W.V., Jr.), Del.Supr., 402 A.2d 1202 (1979) and G.A. Van L. v. P.E. Van L., Del.Fam., 415 A.2d 519 (1980), the husband contends that his two previous oaths averring his Delaware residency and his trial testimony are insufficient to establish personal jurisdiction over him on the wife's counterclaim. The wife responds that he is estopped by virtue of his sworn claims of residence plus his testimony at trial from arguing that there is insufficient evidence to support a finding of domicile. Moreover, the wife asserts that whether or not her former husband is estopped, she has satisfied her burden of proof on this issue.

B.

In Wife (J.F.V.), this Court rejected a "laundry list" approach to determining domicile and reaffirmed the use of a "deep roots" analysis. 402 A.2d at 1203. See Fritz v. Fritz, Del.Supr., 187 A.2d 348 (1962). Establishment of a Delaware domicile requires a person to actually abandon his previous residence with no intention of returning, coupled with the further intent of making Delaware a permanent home. But Wife (J.F.V.) makes clear that no one factor is dispositive on this subject. Instead, "the totality of circumstances [must] clearly [show] an integration into the chosen locale of residency, making it advantageous to remain and disadvantageous to leave...." Wife (J.F.V.), 402 A.2d at 1204.

In the first instance a determination of domicile depends on the evidence presented to the Family Court and turns upon the inferences and deductions that are drawn therefrom. But to hold that a certain factual situation always supports a finding of domicile (or the contrary) not only negates the role of a Family Court judge as trier of fact, but leads back to a "laundry list" analysis of domicile, a result clearly foreclosed by Wife (J.F.V.).

Wife (J.F.V.) re-asserts the scope of review announced in Levitt v. Bouvier, Del.Supr., 287 A.2d 671, 673 (1972) [see 402 A.2d at 1204], and that controls the result here. There was sufficient evidence to support the finding of the trial judge. Moreover, his determination of facts turns on a question of credibility and the acceptance or rejection of "live" testimony. His findings are the obvious product of an orderly and logical deductive process, and we cannot say that they are clearly erroneous.

C.

The evidence before the trial judge consisted of the husband's testimony and his two petitions for divorce which flatly swore to his Delaware residence. It is true that a party may assert contradictory positions in the same case or in a separate and distinct cause if he is acting in good faith and res judicata or collateral estoppel does not bar the assertion. See Continental Insurance Co. of New York v. Sherman, 439 F.2d 1294 (5th Cir.1971); Nancy Ann Storybook Dolls, Inc. v. Dollcraft Co., 197 F.2d 293 (9th Cir.1952). However, as a general rule the averments of a party in one action, as well as pleadings which have been superseded by amendment, withdrawn, or dismissed, may be taken as admissions against the interest of the pleading party with respect to the facts alleged therein. Contractor Utility Sales Co., Inc. v. Certain-Teed Products Corp., 638 F.2d 1061, 1084 (7th Cir.1981); Frederic P. Wiedersum Assoc. v. National Homes Construction Corp., 540 F.2d 62, 65 (2d Cir.1976); Continental Insurance Co., 439 F.2d at 1298; Raulie v. United States, 400 F.2d 487, 526 (10th Cir.1968).

A verified pleading may also be used as an affidavit if the facts stated therein are true to the party's own knowledge. 2A Moore's Federal Practice p 11.04, at 11-13 (1982 ed.); 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1335, at 508 (1969). In the face of the husband's sworn allegations of jurisdiction in his two divorce petitions, the trial judge could very properly view his later denials as inconsistent statements of the most obvious sort. See Del.R.Evid. 613.

We also believe that the husband's disavowal of his Delaware residence was of no permissible defensive significance. His wife's counterclaim incorporated by reference his earlier sworn allegation of Delaware residency. Without any apparent regard for or understanding of Superior Court Civil Rules 8(e)(2) and 11, which are similar to the Federal Rules of Civil Procedure, the husband filed a general denial of all allegations in the counterclaim, including that of his residence. ⁴ A general denial is permissible under Superior Court Civil Rule 8(b), ⁵ but "a party may not use this form of denial unless he intends to controvert the entire complaint including the averment of the grounds upon which the court's jurisdiction depends," which is a rare situation. 5 Wright & Miller, supra, § 1265, at 282. See 2A Moore's Federal Practice, supra, p 8.23, at 8-235 n. 1, 8-236. The party and his counsel who use a general denial also are subject to the obligations of honesty and good faith established by Superior Court Civil Rule 11. Furthermore, Rule 8(b) expressly reminds counsel of that obligation in order to discourage cavalier pleadings of the type now before us.

The husband initiated these proceedings and twice invoked the jurisdiction of the Family Court by his unqualified allegations under oath that he resided in Delaware. The wife's counterclaim for divorce quite properly relied on the integrity of these allegations mandated by our legislature. It follows that the husband's general denial of his own sworn statements, which were absolutely essential to his invocation of Delaware's divorce laws, fell far short of the obligation of honesty and good faith mandated by Rule 11 and as incorporated in Rule 8(b).

This situation is quite distinct from that in H.C.M. v. E.W.M., 413 A.2d at 1273, where respondent wives opposed the divorces sought by their husbands and alternatively sought alimony if the divorces nonetheless were granted. The wives did not file the actions, and clearly they were unwilling participants in judicial proceedings brought against them by their...