Herzog v. Herzog, Civ. A. No. 39-71 Erie.
| Citation | 333 F. Supp. 477 |
| Decision Date | 16 November 1971 |
| Docket Number | Civ. A. No. 39-71 Erie. |
| Parties | Constance M. HERZOG, Plaintiff, v. Richard B. HERZOG, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Richard E. Brandow, Bradford, Pa., for plaintiff.
Anthony H. Chambers, Murray R. Garber, Bradford, Pa., for defendant.
This is an action by a plaintiff against her former husband for an accounting for her share of property held jointly with defendant during their marriage. Plaintiff claims jurisdiction by reason of diversity of citizenship and alleges that at the time of filing the complaint on May 17, 1971 she was a citizen of New York State residing at Olean, New York, and that defendant was a citizen of Pennsylvania residing in Bradford, McKean County, Pennsylvania.
Defendant has moved to dismiss the action for want of jurisdiction alleging that the plaintiff is a citizen of Pennsylvania and thus lacks the required diversity citizenship.
The court ordered the parties to submit evidentiary materials in support of their contentions for determination by the court under Fed.R. of Civ.P. 78.
An examination of the plaintiff's deposition, affidavits, exhibits and other evidentiary material presented in this action discloses the following facts: Plaintiff and defendant had been husband and wife residing in McKean County, Pennsylvania, together since 1936. In February 1970, plaintiff removed from the family domicile across the border into a nearby community in New York State without notice to defendant, concealed her whereabouts, and subsequently instituted a divorce action in Pennsylvania, in which action she claimed Pennsylvania citizenship. A final decree of divorce was granted April 13, 1970.
Plaintiff remained in New York State until July 3, 1971 when she married defendant's brother and took up residence at his home in McKean County. The instant action was instituted May 17, 1971. Plaintiff's engagement to marry her present husband was formalized by the presentation of an engagement ring on June 4, 1971, her birthday.
The jurisdictional question presents no intricate or unusual rule of law, and both parties agree that the basic rule governing residence for purposes of diversity involves two factors, i. e., physical presence and intent. State of Texas v. State of Florida, 306 U.S. 398, 59 S.Ct. 563, 83 L.Ed. 817.
Defendant here asserts that the requisite intent to establish domicile in New York was not present, and that since both parties had been lifelong residents of McKean County, Pennsylvania, plaintiff's stay in New York was never accompanied by the intent to abandon her former Pennsylvania domicile and establish a new domicile.
The plaintiff resided in the State of New...
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