Dicks v. Dicks
| Decision Date | 13 July 1933 |
| Docket Number | 9684. |
| Citation | 170 S.E. 245,177 Ga. 379 |
| Parties | DICKS v. DICKS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
United States Army officer could not acquire domicile for purpose of bringing divorce suit by residence in fort where he was stationed (Civ. Code 1910, §§ 2950, 2959; Laws 1927, p. 352 § 2; Const. U.S. art. 1, § 8, pars. 17, 18; Const. U.S Amend. 14).
1. An officer in the United States Army stationed at Fort Benning within the boundaries of the state of Georgia, filed suit for divorce in Muscogee county. After the plaintiff's evidence was introduced, the defendant moved that the case be dismissed because the husband had not proved his allegations as to residence. Held, that the court erred in overruling a motion to dismiss the petition because as a matter of law the petitioner could not acquire a domicile in Georgia by residing on or within Fort Benning.
2. At the conclusion of all of the evidence, the defendant moved to dismiss the case on the ground that the evidence did not prove the court had jurisdiction of defendant. Having held above that the court erred in refusing to dismiss the plaintiff's case for the reason stated, it is unnecessary to deal with this ground of the motion to dismiss.
Error from Superior Court, Muscogee County; C. W. Worrill, Judge.
Petition for divorce by J. L. Dicks against Marjorie Thompson Dicks. To review the judgment, defendant brings error.
Reversed.
Foley & Chappell, of Columbus, for plaintiff in error.
Geo. C. Palmer and Ed. Wohlwender, Jr., both of Columbus, for defendant in error.
The exceptions are solely to the rulings of the court on a motion to nonsuit and a motion to dismiss the case for lack of jurisdiction, first, on the ground that the plaintiff "had not been a bona fide resident of the State twelve months before the filing of the application for divorce"; and, second, because the defendant was not a resident of the state of Georgia and not within the jurisdiction of the court. The motion to dismiss the case because the evidence showed a lack of jurisdiction is equivalent to a motion to nonsuit on the same ground.
1. The Civil Code (1910), § 2950, declares: "No court in this State shall grant divorce of any character to any person who has not been a bona fide resident of the State twelve months before the filing of the application for divorce." In House v. House, 25 Ga. 473, this court held: "A Court has no jurisdiction over a case in which, neither of the parties is, or has ever been, in the State, or is a citizen, or a resident of the State, or the owner of property in the State." In 19 C.J. 26, § 36, it is said: "The word 'residence' as used in divorce statutes should be construed as equivalent to 'domicile,' but the qualification of citizenship is not exacted." This court, in Cochran v. Cochran, 173 Ga. 856, 862, 162 S.E. 99, discussed the meaning of the term "residence," citing decisions from the Supreme Court of the state of Nevada, where "residence" was construed as meaning domicile within Nevada, and it was held that such domicile of one of the parties was essential to the power of the courts of that state to dissolve the marital bond. This court said that the ruling on that question by the Supreme Court of Nevada did not substantially differ from the principles declared in a great majority of the American states. In deciding the issues raised in Cochran v. Cochran, this court treated the provision as to residence as meaning the same as if the word "domicile" had been used; therefore, in this case, the term "residence" is treated as synonymous with the word "domicile." One filing a petition for divorce must allege and prove that he has been a bona fide resident of the state for the length of time required by law. The burden of proof is upon the applicant. Jurisdiction of the subject-matter cannot be conferred by consent. "No verdict or judgment by default shall ever be taken in a suit for divorce, but the allegations in the petition must be established by evidence before the juries." Civil Code (1910), § 2959; McConnell v. McConnell, 135 Ga. 828, 830, 70 S.E. 647.
It is contended in the brief of the plaintiff in error that the plaintiff, being an officer in the United States Army stationed on the government reservation known as Fort Benning, is not a resident of the state of Georgia, and that as a matter of law it was and is impossible for him to become such so long as he is in the United States Army residing on a government reservation. The Act of the General Assembly approved August 23, 1927 (Ga. Laws 1927, p. 352), in which the lands within Fort Benning were ceded to the United States, contains the provisions that "exclusive jurisdiction in and over any land so acquired by the United States shall be and the same is hereby ceded to the United States for all purposes, except that the state retains the right to serve thereon all civil and criminal processes issued under authority of the state." Section 2. A statute such as that quoted "is not incompatible with the exclusive jurisdiction of the Federal government, but is made to prevent such places from becoming sanctuaries for debtors and criminals." Foley v. Shriver, 81 Va. 568. The Constitution of the United States, article 1, § 8, par. 17, provides that the Congress shall have power "to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful Buildings." In Foley v. Shriver, supra, discussing that clause of the Constitution, the court said:
In Bank of Phoebus v. Byrum, 110 Va. 708, 67 S.E. 349, 27 L.R.A. (N. S.) 436, 135 Am.St.Rep. 953, it was said: "A nonresident who, as an enlisted soldier of the United States, is stationed upon a tract of land which has been secured by the Federal government within a state for military purposes, does not become a citizen of such state, so as to defeat the right of a creditor to issue an attachment against him as a nonresident, although state process may be served within the reservation." The Constitution, above quoted, properly construed, does not altogether deny a soldier in our army the right enjoyed by others of changing his domicile from one state to another state because he is stationed on a government reservation. He should not unnecessarily be thus discriminated against and limited in matters not connected with his status as a soldier. Constitutional provisions should not be so construed unless the provisions clearly require it. The United States Constitution, Fourteenth Amendment, declares: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Of course "residence" and "citizenship" are not identical terms, within the meaning of the Constitution. Steigleder v. McQuesten, 198 U.S. 143, 25 S.Ct. 616, 49 L.Ed. 986.
The petitioner was born in South Carolina, and is a citizen of the United States. South Carolina is his domicile of origin. When he entered the army, he did not as a matter of law lose his domicile in South Carolina. Nor did he as a matter of law become a domiciliary resident of another state. The federal government, of course, has exclusive authority over army reservations, and determines who shall reside on them. In this and other respects army reservations differ from the District of Columbia. The right of the soldier born in South Carolina to change his domicile to the District of Columbia would hardly be questioned. He may not have been within the state of South Carolina in many years. He may have no fixed and definite dwelling, hotel, boarding, or other house as an exact place designated as his dwelling. Perhaps a majority of persons in the United States do not own any such designated dwelling. This is established by the census enumeration of 1930. Since 1930 it is safe to assume that the nonhome owners have largely increased. The following excerpts are quoted from Proposed Final Draft No. 1, "Restatement of the Law of Conflict of Laws" of the American Law Institute Chapter 2, topic 2, § 13: "Every person has at all times one domicile, and no person has more than one domicile at a time." Chapter 2, topic 3, § 25: "A domicil once established continues until it is superseded by another domicil." Section 21: "The intention required for the acquisition of a domicil is an intention to make a home in fact, and not an intention to acquire a domicil." Section 22: "For the acquisition of a domicil of choice the intention to make a home must be an intention to make a home at the moment, not to make a home in the future." Section 18: "A person cannot acquire a domicil of choice in a place without being physically present there; but a home in a particular building is not necessary for the acquisition of a domicil." Chapter 2, topic 1, § 11: "A question of domicil arising in litigation is determined by the law of the forum." There is no law or...
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