Heater v. Heater, 2421.

• Decision Date: 10 November 1959
• Docket Number: No. 2421.,2421.
• Citation: Heater v. Heater, 155 A.2d 523 (D.C. 1959)
• Parties: Thelma Ruth HEATER, Appellant, v. Ezra Wayne HEATER, Appellee.
• Court: D.C. Court of Appeals

155 A.2d 523

Thelma Ruth HEATER, Appellant, v. Ezra Wayne HEATER, Appellee.

No. 2421.

Municipal Court of Appeals for the District of Columbia.

Argued July 27, 1959.

Decided November 10, 1959.

Joseph D. DiLeo, Washington, D. C., for appellant.

No appearance for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

ROVER, Chief Judge.

Appellant wife on December 12, 1958, filed a complaint for absolute divorce on the ground of desertion. At the conclusion of the wife's case the court dismissed her complaint on the ground that she had not resided in the District for the required statutory period. She appeals.

Inasmuch as the claimed desertion occurred in West Virginia, it is requisite that the wife be a "bona fide resident" of the District for at least two years prior to the filing of her complaint. Code 1951, § 16-401.

In our case of Jones v. Jones, D.C.Mun.App., 136 A.2d 580, we discussed various phases of the residence requirement in divorce actions in this District and laid down the following principles: Residence in our statute means "domicile"; a domicile once existing continues until another is acquired; a person cannot be without a legal domicile somewhere. There are two requisites for establishing a domicile here, (1) physical presence, and (2) an intent to abandon the former domicile and remain here for an indefinite period of time; a new domicile comes into being when the two elements coexist. A person may be domiciled here without an affirmative intent to remain here permanently; the test of intent is generally spelled out in terms indicating something less than permanent habitation, i. e., an intent to remain for an indefinite future time.

Testing the court's ruling in the light of these principles it was clearly wrong. The uncontradicted evidence was that the parties were married in Winchester,...