Conrad v. Conrad
| Decision Date | 09 May 1963 |
| Docket Number | 4 Div. 125 |
| Citation | 275 Ala. 202,153 So.2d 635 |
| Parties | Luella Ethel CONRAD v. Chester T. CONRAD. |
| Court | Alabama Supreme Court |
Wm. B. Matthews, Ozark, for appellant.
Joe C. Cassady, Enterprise, for appellee.
This is an appeal from a decree awarding a divorce to the appellee.
The appellee at the time of the hearing below had been stationed at Fort Rucker, in Dale County, Alabama, for about a year and ten months.
In the hearing below the appellee testified that he had been born and raised in New Jersey, and at the time of his entry into military service he was living in New Jersey.
He and complainant were married in New York in 1944, they both being in military service at the time. At the time of his marriage his address was Mason General Hospital, Franklin, Long Island, New York.
The appellee left the military service in 1947, and returned to where his wife was living in New Jersey. In 1950, he reenlisted and has been in the regular army since that time.
The complainant, as she too admits, has refused to join him at any of the posts to which he has been assigned during his military career, though quarters were available at some of them.
While on a tour of duty in Germany the appellee requested assignment to the Third Army Area, and upon return to this country, he was assigned to Fort Rucker.
Since coming to Fort Rucker the appellee, who is a master sergeant, has lived in barracks on the post. He testified he intended to remain in the army until his retirement, and he did not intend to return to New Jersey to live upon completing his military service.
The court sustained respondent's objections to a question addressed to complainant as to whether he intended to remain in Alabama indefinitely.
On cross examination the appellee testified he paid his Federal income tax from Fort Rucker, but he had never paid any Alabama income tax. He further testified he did not own any real estate in Alabama, nor had affiliated with any church in Dale County. He did, however, maintain a bank account in a Dothan bank.
The sole question presented in this appeal is the effect of Section 96(1), Title 7, Code of Alabama 1940, upon the acquisition of domicile in this State by military personnel stationed in Alabama, for purposes of jurisdiction in divorce actions. The above section reads as follows:
A number of other states have passed statutes aimed at creating domicile within the respective states for those persons stationed at military posts within their borders. Several of these statutes have provided that the military personnel should have served within the borders of the state for a specified length of time. For instance, Kansas requires one year. General Statutes of Kansas, 1949, Sec. 60-1502; New Mexico requires one year's service. See 1951 Amendment to Sec. 25-704, New Mexico St. at Large, 1941 Comp. Chap. 107, Laws of 1951; Texas requires a service of twelve months, with six months service within the county where the suit is filed. Vernon's Rev.Civil Statutes, Art. 4631 (55th Session of the Legislature); Nebraska requires a period of military service of one hear, R.R.Statutes of Nebraska, 1943, Sec. 42-303.
The Florida statute on the subject is most similar to ours, in that no specified time of military service within the state is required. The Florida statute, Laws of Florida, Acts 1943, Chap. 21966, Fla.S.A., Sec. 46.12, provides:
'Any person in any branch of service of the government of the United States, including military and naval service, and the husband or the wife of any such person, if he or she be living within the borders of the state, shall be deemed prima facie to be a resident of the state for the purpose of maintaining any suit in chancery or action at law.'
Divorce decrees granted military personnel under the provisions of the above mentioned statutes have been upheld in the jurisdictional aspect of required domicile, though concededly from different approaches.
In Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807, at 811, the Texas Court wrote in regard to jurisdiction in divorce cases under the Texas statute, supra:
The Supreme Court of New Mexico held that their statute created a conclusive presumption of domicile, and was not an unwarranted interference by the legislature with the judicial branch of government. The New Mexico court was further of the opinion that a new type of domicile was created by the Act, i. e., a 'military' domicile, the court observing in this connection:
'We do not feel that the extension of the idea of domicile beyond the area of the integrity of individual intent to an area which might be called 'military domicile' in which individual intent has no place, is an extension which will appreciably weaken or disturb the traditional concept of domicile and the large body of fixed law resting thereon.'
In upholding the Kansas statute, the Supreme Court of Kansas concluded that it must be assumed that the Kansas legislature knew that thousands of military personnel were assigned to military stations in Kansas, and that in all probability the establishment of a former domicile would be highly impractical for all parties concerned, and surrounded by insurmountable difficulties, with the result that for practical purposes military personnel would be outside the law for divorce purposes. See Craig v. Craig, 143 Kan. 624, 56 P.2d 464.
As before stated, the Florida act, supra, is more similar to our provisions than the statutes above mentioned in that no stated period of military service within the state is required. While our statute provides that military personnel 'living within the borders of the State of Alabama shall be deemed a resident * * * for the purpose of maintaining any suit or action at law or in equity in the courts of this state * * *' the Florida statute provides that military personnel, if living within the state, 'shall be deemed prima facie to be a resident of the state for the purpose of maintaining any suit in chancery or action at...
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