Ex parte Weissinger

• Decision Date: 08 March 1945
• Docket Number: 2 Div. 209.
• Citation: 22 So.2d 510,247 Ala. 113
• Parties: Ex parte WEISSINGER.
• Court: Alabama Supreme Court

22 So.2d 510

247 Ala. 113

Ex parte WEISSINGER.

2 Div. 209.

Supreme Court of Alabama

March 8, 1945

Rehearing Denied April 26, 1945.

Application for Further Rehearing Dismissed June 30, 1945.

Horace C. Wilkinson, of Birmingham, and Reuben H. Wright, of Tuscaloosa, for petitioner.

Jones, Dominick & McEachin and L. C. Bell, all of Tuscaloosa, for respondent.

Sworn plea No. 2 filed by respondent (petitioner here) in the circuit court is as follows: 'At the time the bill of complaint in this cause was filed herein and at the time the separation referred to in the bill occurred this respondent was not a resident of Greene County, Alabama but was a resident of Dallas County, Alabama, and that this bill is not maintainable against him in this Honorable Court and should be abated because it was improperly filed herein in violation of Title 34, § 28 of the Alabama Code of 1940.' SIMPSON, Justice.

The primary inquiry relates to venue and whether the divorce action against petitioner, Dr. William Wood Weissinger, should have been brought in Greene County, where he and his wife were living when the separation occurred, or in Dallas County, the original domicile of petitioner, from whence he had shortly removed, previous to his marriage in August, 1943.

The ruling on the question was invoked in the trial court by a hearing on plea in abatement No. 2, and here decision turns upon a consideration of the evidence in support of that plea. A secondary inquiry is whether such a ruling may be reviewed by mandamus and before a trial of the cause on its merits.

The propositions will be treated in order.

The pertinent provision of the law governing the venue of the present cause is: 'Bills for divorce may be filed in the circuit court of the county in which the defendant resides, or in the circuit court of the county in which the parties resided when the separation occurred,' etc. Code 1940, Tit. 34, § 28.

The plea in abatement is premised upon the theory that Dallas County was the legal residence of Dr. Weissinger, both when the suit was filed and when the separation occurred, whereas the ruling of the trial court affirmed the opposing contention that the suit was properly venued under the latter aspect of the statute authorizing suit in the county 'in which the parties resided when the separation occurred.'

With the purpose of confining discussion to the real question arising from a construction of the quoted provision, in connection with the evidence, we will state at the outset certain legal propositions already concluded by previous decisions of this court and which must be held in mind in analyzing the ultimate issue to be decided.

The word 'resides' as used in the foregoing quoted section means legal residence and is equivalent to domicile. The terms, as employed, are synonymous and denote the place where the person is deemed in law to live, which may not always be the place of one's actual dwelling, and are to be contra-distinguished from temporary abode. Caheen v. Caheen, 233 Ala. 494, 172 So. 618; Allgood v. Williams, 92 Ala. 551, 8 So. 722.

An Alabama citizen may have a legal residence or domicile in one county and be actually living in another, but if so, a divorce action against him may not be brought in the latter, but must be laid in the former county--his legal residence, his domicile. Under the said statute, the place of residence--domicile--of the defendant and not the place of separation is the proper venue for a divorce action, unless, of course, the legal residence of the parties (both parties) was in such latter county at separation. To such effect is the holding in Pucket v. Pucket, 174 Ala. 315, 318, 56 So. 585, 586, where it was observed that 'the statutes with regard to divorce proceedings, where the parties are residents, direct that the bill must be filed in the chancery district in which the defendant resides, or in the district in which the parties (both parties) resided when the separation occurred.' (Emphasis supplied.)

The law recognizes that there may be (1) domicile of origin, that of the person's parents or head of his family or on whom he is legally dependent at birth; (2) domicile of choice, the place which a person has voluntarily chosen for himself to displace his previous one; or (3) domicile by operation of law (not here pertinent). 28 C.J.S., Domicile, p. 10, § 5.

The law is also established that a domicile, once acquired, is presumed to exist until a new one has been gained 'facto et animo.' Bragg v. State, 69 Ala. 204; Caheen case, supra. And in order to displace the former, original domicile by the acquisition of one of choice, actual residence and intent to remain at the new one must concur. 'Domicile of choice is entirely a question of residence and intention, or, as it is frequently put, of factum and animus.' 28 C.J.S., Domicile, p. 11, § 9.

A change of domicile cannot be inferred from an absence, temporary in character, and attended with the requisite intention to return. To the fact of residence in the new locality there must be the added element of the animus manendi before it can be said that the former domicile has been abandoned. The intention to return is usually of controlling importance in the determination of the whole question. Lehman, Durr & Co. v. Bryan, 67 Ala. 558; Ex parte Altman, 237 Ala. 642, 188 So. 685. Or, borrowing the words of the digester, negatively expressed, there must be an absence of any present intention of not residing in the new domicile permanently or for an indefinite time. 17 Am.Jur. p. 605, § 24.

To summarize: A person's domicile is that place in which his habitation is fixed, without any present intention of removing, and it embraces (1) the fact of residence and (2) the intention to remain. As a general proposition a person can have but one domicile, and when once acquired is presumed to continue until a new one is gained facto et animo, and what state of facts constitutes a change of domicile is a mixed question of law and fact. Lucky v. Roberts, 211 Ala. 578, 580, 100 So. 878, 879, and cases cited.

One who asserts a change of domicile has the burden of establishing it. Caldwell v. Pollak, 91 Ala. 353, 357, 8 So. 546. And 'where facts are conflicting, the presumption is strongly in favor of an original, or former, domicile, as against an acquired one,' etc. 28 C.J.S., Domicile, p. 36, § 16.

Coming to apply these settled principles to the case before us, we have concluded that the weight of the evidence strongly supports the plea in abatement. Petitioner was born, reared, and registered as a voter in Dallas County. His poll tax was paid there and, after removing to Greene County, he cast an absentee ballot there, voting in the Democratic primary of 1944, certifying his residence to be in Dallas county, all before any question as to the importance of his domicile arose.

In passing, it may be well to here observe that payment of poll tax and voting is indicative of intention with respect to the question here involved and is regarded as importantly bearing upon the place of domicile. 28 C.J.S., Domicile, p. 41, § 17, subsec. d(3). 'The domicile of a man will usually be in the place where he votes.' 2nd Schouler, Divorce, 6th Ed., § 1497, p. 1747. Exercising the right of elective franchise, dependent upon citizenship and domicile, is regarded as having weight in settling the question of a person's legal residence. Such act is a deliberate public assertion of the fact of residence and is said to have decided preponderance in a doubtful case upon the place the elector claims as, or believes to be, his residence. Cooper's Adm'r v. Commonwealth, 121 Va. 338, 93 S.E. 680; Wolf v. McGavock, 23 Wis. 516; First Nat. Bank v. Tate, 116 W.Va. 138, 178 S.E. 807.

Petitioner, now about twenty-four years old, upon being graduated from the Alabama Polytechnic Institute at Auburn in February, 1943, came to Greene County under circumstances as follows: The second World War was in progress. He had received a degree in veterinary medicine and a Reserve commission as second lieutenant in the Medical Administrative Corps of the United States Army and placed on inactive duty. This, the evidence indicates, made him subject to Selective Service and the Procurement and Assignment Service of the United States Government then assumed jurisdiction over him and certified that he was more essential, in civilian employment, as a veterinarian than in the armed services as a draftee. He was then relieved from draft by the Selective Service, provided he accepted he accepted assignment as a veterinarian in certain localities to be designated by the Procurement and Assignment Service. He was not permitted free choice, without being subject to draft, in the selection of a location and could not, under these circumstances, locate in his home county of Dallas, but was allowed to locate in Greene County because of the need of veterinary services in that locality. He made the selection and was assigned there by the Procurement and Assignment Service.

In our opinion his acts, declarations and conduct, both before and after his location in Greene County, evinced a clear purpose of maintaining only a temporary residence there for the duration of the war, his domicile--'home,' as he and his wife called it--still being Dallas County. If we have construed the evidence correctly, as we think we have, it seems that his wife also considered Dallas County as his home county and legal residence.

Importantly controlling on this issue is, as above suggested, that his location in Greene County was not entirely of his free choice, but was controlled by government direction. True, he could have disregarded the determination of his government as to the essentiality of his service as...