Hiles v. Hiles

• Decision Date: 14 March 1935
• Citation: 164 Va. 131
• Parties: CHARLES CLIFFORD HILES v. MAY HILES.
• Court: Virginia Supreme Court

Page 131

164 Va. 131

CHARLES CLIFFORD HILES v. MAY HILES.

Supreme Court of Virginia, Richmond.

March 14, 1935.

Present, Campbell, C.J., and Holt, Epes, Hudgins, Gregory and Browning, JJ.

1. DOMICILE — Residence — Not Synonymous as Used in Divorce Statute. — As used in some statutes "residence" and "domicile" are practically synonymous terms; but plainly they are not synonymous as used in section 5105 of the Code of 1930, providing that no suit for divorce shall be maintainable, unless one of the parties is domiciled in, and is and has been an actual bona fide resident of Virginia for at least one year. One may be domiciled in one State and be a resident of another within the meaning of this statute.

2. DIVORCE — Meaning of "Bona Fide Resident" as Used in Divorce Statute — Necessity for Maintaining Permanent Abode. — Within the purview of section 5105 of the Code of 1930, providing that "No suit * * * for divorce shall be maintainable, unless one of the parties is domiciled in, and is and has been an actual bona fide resident of this State for at least one year preceding the commencement of the suit;" to have been an "actual bona fide resident of this State" for one year preceding the institution of a suit for divorce, means to have had in this State throughout that period an actual bond fide permanent abode, as contradistinguished from a sojourn, or transitory abode, in this State or elsewhere. The plaintiff need not have been physically present in Virginia every day during that period; but it is essential that, during such part of that year as he was absent from Virginia, he has actually maintained in good faith at least a locality somewhere in Virginia as his permanent abode.

3. DOMICILE — Residence — Permanent Abode — Transitory Abode. — "Permanent abode" means "a for the time being fixed or permanent habitation, or place or locality of abode," and "transitory abode" means a "transitory habitation, or place or locality of abode."

4. DIVORCE — Bona Fide Resident — Effect of Establishment of Transitory Abode Outside State. — If a person, who has heretofore in good faith established and is then maintaining a permanent abode in the State, goes from the State, and while absent therefrom continuously in good faith maintains that, or some other place or locality in the State, as and for his permanent abode, the establishment of a sojourn, or transitory abode, outside the State will not (so long as his physical residence elsewhere is essentially transitory or a sojourning) put an end to his being an "actual bona fide resident of this State" within the meaning of section 5105 of the Code of 1930, providing that no suit for divorce shall be maintainable, unless one of the parties is domiciled in, and is and has been an actual bona fide resident of Virginia for at least one year. This is true even though his absence from the State be of long duration.

5. DIVORCE — Domicile — Establishment of Permanent Abode in Virginia — Maintenance of Permanent Abode in Virginia after Establishing Transitory Abode Elsewhere. — In a case where one has established a permanent abode in the State and has become a bona fide resident within section 5105 of the Code of 1930 (the divorce statute), but has established a transitory abode outside the State, where the absence is of long duration, to establish the continued maintenance of a place or locality within Virginia as his permanent abode, something more is necessary than the mere fact that he has always entertained an intention ultimately to return to and physically reside in Virginia and has had no intention of establishing a permanent residence elsewhere. There must be some evidence of concurring acts or forbearances to act which tend to show the actual continued maintenance in good faith of some place or locality in Virginia as and for his permanent abode. Neither the unexpressed nor the mere expressed intention to so maintain a place or locality in Virginia as his permanent abode is alone sufficient to constitute the maintenance thereof as such. Nor is such intention, plus the bare fact that he has returned to his prior habitat in Virginia after several years' absence without having established more than a transitory residence elsewhere, sufficient. There must be actuality of residence.

6. DOMICILE — Evidence Tending to Show Maintenance of Permanent Abode While Absent Therefrom — Each Case Depends on Own Facts. — There are many facts which are of evidential value as tending to show the continued actual maintenance in good faith by a person of a place or locality as his permanent abode while he is absent therefrom. Among them are the following: The fact that he leaves his wife and/or dependent children there while continuing to support them; the fact that he keeps a house or room there ready for his occupancy, or has rented it out for a comparatively short time because of his intention to return and occupy it; the fact that he preserves his identity as an inmate of a parent's or other relative's home there; or the fact that he maintains the place or locality as a permanent address for his mail while absent. Where the facts surrouding his actual presence elsewhere show that he may reasonably be considered as being merely a sojourner, any one of these things may be sufficient to establish his continued maintenance in good faith of an actual residence in Virginia; but each case must stand upon its own peculiar facts and circumstances.

7. DIVORCE — Residence — Bona Fide Residence of One Party for a Year Must Be Proved. — That one of the parties "is and has been an actual bona fide resident of this State for at least one year preceding the commencement of the suit for divorce" is essential to the maintenance of the suit and must be established by evidence introduced in the cause, or the suit should be dismissed.

8. DIVORCE — Residence — Necessity for Bona Fide Residence for One Year Preceding Suit — Insufficiency of Evidence to Show Residence for Required Period — Case at Bar. — In the instant case, a suit for divorce, the parties were married in New Hampshire and shortly thereafter plaintiff, a pay clerk in the Navy, was transferred to Virginia where he established a residence for himself and his wife. After residing in Virginia for about ten years plaintiff was ordered to China where his wife joined him and lived with him for about a year, at the end of which time, it was alleged, she deserted him. From this time, December, 1930, until March, 1933, plaintiff was on duty in China, Hawaii and en route from Hawaii to Virginia. He reached Virginia in March, 1933, and instituted suit about two months thereafter. The wife remained in China from December, 1930, until February, 1932, went from there to Hawaii, and from there returned to Virginia, in December, 1932. Section 5105 of the Code of 1930 provides that no suit for divorce shall be maintainable, "unless one of the parties is domiciled in, and is and has been an actual bona fide resident of this State for at least one year preceding the commencement of the suit."

Held: That the evidence was insufficient to establish that either of the parties had "been an actual bona fide resident of this State" continuously for more than about two months, in the case of the plaintiff, and six months, in the case of the defendant, when suit was instituted, and theefore the lower court should have dismissed the bill for this reason without considering any other question raised by it.

Appeal from a decree of the Circuit Court of the city of Portsmouth in a suit for divorce. Decree for defendant. Complainant appeals.

The opinion states the case.

Samuel E. Forwood and Ralph H. Daughton, for the appellant.

Harry Cuthriell, for the appellee.

EPES, J., delivered the opinion of the court.

In May, 1933, Charles Clifford Hiles instituted in the Circuit Court for the city of Portsmouth, Virginia, his suit for a divorce from his wife, May Hiles, on the ground of desertion. The desertion is alleged to have taken place in December, 1930, while the parties were living together in China, where the husband was on duty as a pay clerk in the United States Navy.

On September 29, 1933, the court entered this decree in the cause, from which an appeal has been granted to the plaintiff: "This cause came on this day to be heard on the bill of complaint, the answer and cross-bill of the defendant and the replication to said answer, and depositions of witnesses taken in support thereof and was argued by counsel. It is adjudged, ordered and decreed that the prayer of the said bill be denied, and that the complainant shall pay to Harry Cuthriell, defendant's attorney, the sum of $100, and the costs of this suit and that this cause be dismissed from the docket."

The appellant was the plaintiff below and the parties will be referred to as plaintiff and defenant as they were designated in the court below. Mrs. Hiles made no appearance in this court.

In the view which we take of this appeal these are the only pertinent facts: The plaintiff is a pay clerk in the United States Navy. In 1919 he was married to the defendant, May Peach, at Dover, New Hampshire. In 1920 he was transferred to Hampton Roads, in Virginia, and established and maintained a residence for himself and wife in the city of Portsmouth, where they continued to reside until in January, 1930, when he was ordered to China. His wife joined him there in February, 1930, and they lived together as man and wife in Shanghai, China, until in December, 1930, when he alleges she deserted him, or was guilty of such acts as to amount to a constructive desertion of him. From December, 1930, until March, 1933, he was on duty in China and Hawaii and en route from Hawaii to Hampton Roads, Virginia. She (whether living with him or not) remained in China until February, 1932, went from there to Hawaii, where she stayed until June, 1932, from there returned to Virginia, on December 18, 1932, and from that time until...