Dietz v. City of Medora

• Decision Date: 21 April 1983
• Docket Number: No. 10297,10297
• Citation: 333 N.W.2d 702
• Parties: Tom DIETZ, Plaintiff and Appellant, v. CITY OF MEDORA, Rod Tjaden, and William Connell, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 702

333 N.W.2d 702

Tom DIETZ, Plaintiff and Appellant, v. CITY OF MEDORA, Rod Tjaden, and William Connell, Defendants and Appellees.

Civ. No. 10297.

Supreme Court of North Dakota.

April 21, 1983.

Thomas M. Disselhorst, Bismarck, for plaintiff and appellant.

Ronald A. Reichert of Freed, Dynes, Reichert & Buresh, Dickinson, for defendant and appellee City of Medora.

Paul G. Kloster of Mackoff, Kellogg, Kirby & Kloster, Dickinson, for defendants and appellees Rod Tjaden and William Connell.

PAULSON, Justice.

This is an appeal by Tom Dietz from a judgment dismissing his action against the City of Medora; Rod Tjaden, the mayor of Medora; and William Connell, a member of the Medora City Council. Dietz contends that Tjaden and Connell are not residents of Medora and, therefore, are not qualified to serve as city officers. We affirm the dismissal.

Tjaden is a division manager employed by the Gold Seal Company to oversee Gold Seal's property and tourist facilities in Medora. When in Medora, Tjaden lives in a house provided by the Gold Seal Company. During September through March, Tjaden spends much of his time traveling for business purposes.

Connell is the majority owner of the Hitching Post, a Medora business which is open throughout the year. When in Medora, Connell lives in the living quarters above the family business.

Recently Tjaden and Connell purchased homes in Bismarck and Dickinson respectively. Tom Dietz, a resident and elector of the City of Medora, contends that Tjaden and Connell are no longer residents legally qualified to hold positions as governing officers of the City of Medora. The trial court heard evidence concerning Tjaden's and Connell's residences and then dismissed Dietz's action. In his oral opinion, the trial judge stated that he found "significant and substantial evidence" supporting Tjaden's and Connell's declared intentions to retain their residency and their status as residents of the city of Medora.

Section 40-13-01 of the North Dakota Century Code provides that an officer in a municipality must be "a qualified elector of the municipality and ... a resident thereof". ¹ Similarly, Sec. 40-08-05, N.D.C.C., provides that an alderman of a city council must be "a qualified elector of and a resident within the city".

According to the North Dakota Constitution, a qualified elector is a "citizen of the United States, who has attained the age of eighteen years and who is a North Dakota resident". N.D. Const. art. II, Sec. 1. See also Sec. 16.1-01-04(1), N.D.C.C. A qualified elector thus is a person legally qualified to vote because he meets age and residency requirements. In the case at hand, Tjaden and Connell, as city officers, are required by statute to be actual residents of the City of Medora and are each required to meet the legal residency requirements of a qualified elector in the city. See Bergstrom v. Bergstrom, 271 N.W.2d 546, 550 (N.D.1978) [court recognizes distinction between legal residence and actual physical presence in child custody case]; Anderson v. Breithbarth, 62 N.D. 709, 714, 245 N.W. 483, 485 (1932) [court recognizes distinction between actual residence and legal or technical residence in school residency case].

We will first consider the requirement that Tjaden and Connell be actual "residents" of the City of Medora. Title 40, N.D.C.C., does not define "resident". Cf. Sec. 20.1-01-02(4), N.D.C.C. [resident defined for matters involving game, fish, predators, and boating]; Sec. 37-24-01(3), N.D.C.C. [resident defined for educational assistance to veterans]; Sec. 37-25-02(7), N.D.C.C. [resident defined in the Vietnam Conflict Veterans' Adjusted Compensation Act]; Sec. 57-38-01(10), N.D.C.C. [resident defined for state income tax purposes]. Although the word "resident" may have many meanings to suit different purposes, Goodsell v. State Automobile and Casualty Under., 261 Iowa 135, 153 N.W.2d 458, 460 (1967), the word "resident" in Secs. 40-08-05 and 40-13-01, N.D.C.C., is to be understood in its ordinary sense. See Sec. 1-02-02, N.D.C.C. Webster's Third New International Dictionary 1931 (unabr.1971) defines the word "resident" as "one who resides in a place: one who dwells in a place for a period of some duration--often distinguished from inhabitant". Black's Law Dictionary 1177 (5th ed. 1979) states that the "word 'resident' when used as a noun, means a dweller, habitant or occupant; one who resides or dwells in a place for a period of more, or less, duration ...". See also Staton v. Hutchinson, 370 So.2d 106, 109 (La.Ct.App.1978). A person may have two or more actual residences, as distinguished from his single legal residence. State v. Moodie, 65 N.D. 340, 356, 258 N.W. 558, 565 (1935). Accord Walker v. Harris, 398 So.2d 955, 958 (Fla.Dist.Ct.App.1981); State v. Jones, 202 Neb. 488, 275 N.W.2d 851, 853 (1979).

In the instant case both Tjaden and Connell have two actual residences, Tjaden in Medora and in Bismarck and Connell in Medora and in Dickinson. Tjaden and Connell are "residents" of Medora for purposes of Secs. 40-08-05 and 40-13-01, N.D.C.C., if they live, reside, or dwell in Medora. Both have living quarters in Medora where they keep personal possessions, clothing, furniture, and items of sentimental value. These living quarters are the dwelling places of Tjaden and Connell whenever they are in Medora. It is not necessary that Tjaden and Connell spend every day of the year in Medora to be "residents thereof".

The determination of whether or not an individual is a resident is a question of fact to be reviewed according to Rule 52(a) of the North Dakota Rules of Civil Procedure: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." See generally Hoge v. Burleigh Cty. Water Management Dist., 311 N.W.2d 23, 28 (N.D.1981). We hold that the trial court's finding was not clearly erroneous when it found that Tjaden and Connell are actual residents of the City of Medora.

We next consider the statutory requirement that Tjaden and Connell have legal residences in the City of Medora for the purpose of voting eligibility. The rules to be used to determine legal residence for voting eligibility (according to Sec. 16.1-01-04(3), N.D.C.C.) are set forth in Sec. 54-01-26, N.D.C.C., and provide, in pertinent part, as follows:

"1. It is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns in seasons of repose.

"2. There can be only one residence.

"3. A residence cannot be lost until another is gained.

* * *

"7. The residence can be changed only by the union of act and intent."

Every person has only one legal residence, as distinguished from the possibility of several actual physical residences. See Sec. 54-01-26, N.D.C.C.; Wehrung v. Ideal School District No. 10, 78 N.W.2d 68, 70 (N.D.1956); Moodie, supra 258 N.W. at 563; 25 Am.Jur.2d Elections Sec. 66. An individual does not lose his legal residency for voting eligibility solely because of temporary absences from the area. N.D. Const. art. II, Sec. 1; City of Enderlin v. Pontiac TP., Cass County, 62 N.D. 105, 242 N.W. 117, 121 (1932); 25 Am.Jur.2d Domicil Sec. 31.

A legal residence is the place where an individual has established his home, where he is habitually present, and which he intends to return to when he is away for business or pleasure. Nelson v. Gass, 27 N.D. 357, 146 N.W. 537, 543 (1914). See Sec. 54-01-26(1), N.D.C.C.; Wehrung, supra 78 N.W.2d at 70. There is a legal presumption against a change of legal residence, or domicile, Sec. 31-11-03(40), N.D.C.C.; and the burden of proving the change of legal residence is on the person alleging the change, in this case, Dietz. Mittelstadt v. Bender, 210 N.W.2d 89, 93 (N.D.1973); Northwestern Mortgage & S. Co. v. Noel Const. Co., 71 N.D. 256, 300 N.W. 28, 32 (1941); Moodie, supra 258 N.W. at 564.

Dietz must prove three elements to show Tjaden's and Connell's legal residences have changed--(1) abandonment of the old domicile, (2) actual removal to a new domicile, and (3) intent to change from the old to the new and to remain at the new domicile. Northwestern Mortgage, supra 300 N.W. at 31; Moodie, supra 258 N.W. at 564. Although a person's intent cannot easily be analyzed, Jones, supra 275 N.W.2d at 853, intent is an important consideration when determining whether or not a legal residence has changed. Moodie, supra 258 N.W. at 564; Nelson, supra 146 N.W. at 543; 25 Am.Jur.2d Elections Sec. 66. Both Tjaden and Connell testified that they intended to remain legal residents of the City of Medora. A person's declaration of intent is significant, Walker, supra 398 So.2d at 958; however, inconsistent acts can negate declared intent. Moodie, supra 258 N.W. at 563; Nelson, supra 146 N.W. at 543.

All of the facts and circumstances in the life of an individual may be used when considering the factual issue of whether or not there has been a change of legal residence. Schillerstrom v. Schillerstrom, 75 N.D. 667, 32 N.W.2d 106, 115 (1948); Moodie, supra 258 N.W. at 563. As we noted in Moodie, supra 258 N.W. at 564:

"the difficulties ... with this question are due not so much to any obscurity or uncertainty in the law as to the infinite variety of facts and circumstances which have to be considered in its application to individual cases."

Evidence that has been considered by other courts regarding the issue of legal residence includes declarations, payment of taxes, licenses, business connections, property ownership, burial plans, church membership, and membership in clubs. See 25 Am.Jur.2d Domicil Secs. 92-100. One court found it significant that an individual retained a dwelling place in a locality showing that he intended to return to that locality and thus he was not abandoning his legal residence there. Moore v. Tiller, 409 S.W.2d 813, 816 (Ky.Ct.Ap...