Duval v. Duval

• Citation: 546 A.2d 1357,149 Vt. 506
• Decision Date: 08 April 1988
• Docket Number: Nos. 86-508 and 87-407,s. 86-508 and 87-407
• Parties: Kenneth DUVAL v. Michelle DUVAL.
• Court: United States State Supreme Court of Vermont

Page 1357

546 A.2d 1357

149 Vt. 506

Kenneth DUVAL v. Michelle DUVAL.

Nos. 86-508 and 87-407.

Supreme Court of Vermont.

April 8, 1988.

Robert C. Jackson, South Royalton, for plaintiff-appellee.

Ellen R. Andrews, Barre, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MAHADY, JJ.

GIBSON, Justice.

These cases arise from a divorce proceeding and a concurrent child custody proceeding. Through her interlocutory appeal, defendant questions the trial court's jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), 15 V.S.A. §§ 1031-1051, to award temporary custody of the parties' child to plaintiff. On direct appeal from the court's final order, defendant reiterates the jurisdictional issue under the UCCJA and challenges the court's jurisdiction over the divorce proceeding. She also alleges that the trial court abused its discretion in fashioning the final order. We reverse and remand for a determination of the residency of the plaintiff at the time he filed his divorce complaint, and for a determination of jurisdiction pursuant to the procedures set forth in the UCCJA.

I. FACTS

Both plaintiff and defendant were born and raised in Vermont; their son was born in Randolph, Vermont in July of 1980. During the course of their marriage, the couple experienced marital difficulties. In February of 1985, plaintiff left the state and moved to Georgia where he obtained employment with his brother's firm. The following month, defendant and their son joined plaintiff in Georgia, and defendant also obtained employment with plaintiff's brother's firm. The reason the parties left Vermont was to get away from "bad influences" affecting their marriage. The marriage apparently improved for a short period of time, but then again started to deteriorate. Things came to a head on July 28, 1986, when the couple separated and defendant left the marital home, leaving the child with plaintiff. On August 4, 1986, plaintiff returned to Vermont with the child. The same day, defendant consulted an attorney in Georgia seeking a divorce from plaintiff and custody of their son. Defendant signed a verification of information for the divorce with her attorney that day, but the action was not filed in the Gwinnett County Superior Court in Georgia until August 22, 1986. Meanwhile, plaintiff contacted a Vermont attorney and filed a divorce action in Orange Superior Court on August 5, 1986, one day after he had returned to Vermont. Since then, plaintiff has continued to reside in Vermont while defendant has continued to reside in Georgia.

At a preliminary hearing to determine temporary custody of the child, defendant moved to dismiss for lack of jurisdiction of the Vermont court to hear this case under Vermont's version of the UCCJA, 15 V.S.A. §§ 1031-1051. The trial court took testimony on this issue and assumed jurisdiction pursuant to 15 V.S.A. § 1032(a)(2), despite clear evidence that Georgia possessed "home state" jurisdiction. ¹ Defendant then moved to have the court certify the jurisdictional question for review by this Court pursuant to V.R.A.P. 5(b). The trial court denied defendant's request; however, this Court subsequently granted defendant's motion for an interlocutory appeal.

Upon stipulation of the parties, the case was returned to the trial court for a final hearing held on February 19, 1987. The court issued its final order on July 24, 1987, granting the parties a divorce, approving the parties' property distribution agreement, granting custody of the child to plaintiff, requiring defendant to pay twenty-five dollars per week in child support, and allowing a minimum of one weekend a month visitation to the defendant, with any other visitation to be arranged at the convenience of the plaintiff. Defendant appealed the final judgment, questioning the court's jurisdiction to entertain the divorce action on the ground that plaintiff did not meet the residency requirements of 15 V.S.A. § 592; reiterating the UCCJA jurisdictional issue previously raised in the interlocutory appeal; and alleging certain abuses of discretion by the trial court in fashioning its final order. The appeal of the final order was consolidated with the interlocutory appeal for argument before this Court.

II. JURISDICTION UNDER 15 V.S.A. § 592.

15 V.S.A. § 592 provides that:

A libel for divorce ... may be brought if either party to the marriage has resided within the state for a period of six months or more, but a divorce shall not be decreed for any cause, unless the libelant or the libelee has resided in the state one year next preceding the date of final hearing. Temporary absence from the state because of illness, employment without the state, service as a member of the armed forces of the United States, or other legitimate and bona fide cause, shall not affect the six months' period or the one year period specified in the preceding sentence, provided the person has otherwise retained residence in this state.

Residency, for purposes of divorce jurisdiction, is more than mere presence within the state. The concept of residency in a divorce proceeding is encompassed within the legal definition of domicile: an "abode animo manendi, a place where a person lives or has his home, to which, when absent, he intends to return and from which he has no present purpose to depart." Tower v. Tower, 120 Vt. 213, 221, 138 A.2d 602, 607 (1958). In order to effectuate a change in domicile, there must be a relocation to the new residence and continued dwelling there, coupled with an intention of remaining there indefinitely; neither physical presence alone nor intention alone is sufficient to effectuate a change of domicile. Walker v. Walker, 124 Vt. 172, 174, 200 A.2d 267, 269 (1964). Unfortunately, "[t]he troublesome aspect of domicile is that it deals not only with acts, but with states of mind." Id. See also Bonneau v. Russell, 117 Vt. 134, 137, 85 A.2d 569, 571 (1952) (necessary intent to establish domicile may be proven by acts as well as words).

Domicile is a question of fact to be determined in the first instance by the trial court, which has the best vantage from which to weigh the evidence and examine the demeanor of the witnesses. See Town of Georgia v. Town of Waterville, 107 Vt. 347, 350, 178 A. 893, 894 (1935); see also Davidson v. Davidson, 111 Vt. 24, 28, 9 A.2d 114, 116 (1939) (trial courts and not this Court are clearly the proper forum for determining questions of fact concerning divorce actions). On appeal, this Court will not set aside findings of fact unless they are clearly erroneous. V.R.C.P. 52(a). Cf. Emmons v. Emmons, 141 Vt. 508, 511, 450 A.2d 1113, 1115 (1982) (This Court will not disturb property distribution in a divorce decree if a reasonable evidentiary basis exists to support the trial court's findings.).

In the instant case, there is no dispute as to the actions relating to plaintiff's domicile; however, there is considerable dispute as to the meaning of plaintiff's actions, statements and, most importantly, his intentions. Plaintiff lived in Georgia for a period of approximately eighteen months. He received a Georgia driver's license, signed a long-term lease for a home there, and received long-term employment with his brother's firm in Georgia. He asserts, however, that he never gave up his residency in Vermont, and only moved to Georgia in an unsuccessful attempt to save his failing marriage. Once the parties separated permanently, he immediately returned to Vermont. Plaintiff claims that he fits within the requirements of 15 V.S.A. § 592, because he was only temporarily absent from the state for a "legitimate and bona fide cause," i.e., to save the marriage and to find employment in a new field.

Defendant takes a different view of the same facts. Defendant asserts that when plaintiff returned to Vermont on August 4, 1986, he did not fall within the prerequisites of the temporary absence exceptions of 15 V.S.A. § 592, because he had not "otherwise retained residence in this state." Plaintiff had no physical place to which to return that he could call home, other than the homes of his various relatives. Defendant also attacks plaintiff's contention that he never intended to give up his Vermont residency while living in Georgia. Defendant points to the facts that plaintiff obtained a Georgia driver's license and did other affirmative acts to show that he was relinquishing his Vermont residency and accepting a Georgia residency. Furthermore, defendant questions plaintiff's claims of intent to retain his Vermont residency. On cross-examination, plaintiff admitted that if the marriage had indeed improved, he would have remained indefinitely in Georgia.

The abandonment of plaintiff's residence in Georgia, in and of itself, is insufficient to revive plaintiff's domicile in Vermont. See Dailey v. Town of Ludlow, 102 Vt. 312, 317, 147 A. 771, 773 (1929). Plaintiff admitted he was himself unsure of the location of his domicile: in his mind it would be Georgia if the marriage worked out, Vermont if it failed. Thus, there is an open question as to whether plaintiff possessed an "essential ingredient" in acquiring a new domicile in Georgia: an intention "to give up the old domicile" in Vermont. Walker, 124 Vt. at 174, 200 A.2d at 269. "If [a person] actually went to another [state] with an intention ... of remaining there for an indefinite time as a fixed place of abode, a change of residence [to that state] was effective though he entertained a nebulous or floating intention of returning at some future time." Town of Georgia, 107 Vt. at 352, 178 A. at 895.

Unfortunately, the trial court never delineated its rationale for assuming jurisdiction in this questionable situation. It merely asserted in its temporary order that "[t]he Court assumes jurisdiction" of the case. In its final order, the court stated that "[f]or the reasons stated in the Court's previous order, this Court has...