In re Petition of Olan

• Decision Date: 15 August 1966
• Docket Number: Petition No. 267502.
• Citation: 257 F. Supp. 884
• Court: U.S. District Court — Southern District of California
• Parties: In re Petition for Naturalization of Brigitte Hedwig OLAN.

257 F. Supp. 884

In re Petition for Naturalization of Brigitte Hedwig OLAN.

Petition No. 267502.

United States District Court S. D. California, Central Division.

August 15, 1966.

Bennet Olan, Beverly Hills, Cal., for petitioner.

Jack J. Gantwerk and Robert Griffin, designated examiners, Immigration and Naturalization Service, U. S. Dept. of Justice, Los Angeles, Cal., for Immigration and Naturalization Service.

DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT AND ORDER

HAUK, District Judge.

Petitioner, a native of Czechoslovakia and alien citizen of Austria, seeks citizenship under Section 319(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1430(a).¹ In essence this permits the naturalization of the alien spouse who meets all other eligibility requirements if, after being lawfully admitted for permanent residence, she has resided in the United States for three years, has been physically present in this country for at least one half of this period, and has been living "in marital union" with the citizen spouse during the three years immediately preceding the filing of the petition.

After the filing of appropriate documents and an administrative hearing that was rendered abortive and virtually useless by the petulant and peevish obstructionism of petitioner's attorney (who is also her citizen spouse), the matter is now before this Court on final hearing, pursuant to 8 U.S.C.A. § 1447.

Conceding that petitioner has met all of the other requirements under the Act, the Government opposes citizenship and recommends denial for two reasons:

(1) Petitioner allegedly had not been living "in marital union" with her spouse during the three years immediately preceding the filing of the petition, in violation of Section 319 (a) of the Act, 8 U.S.C.A. 1430(a); and

(2) Petitioner allegedly is not "a person of good moral character" as required by and within the meaning of Section 316(a) of the Act² because in stating under oath in various documents that she had been so "living or residing" with her spouse, she had "given false testimony" and falls within the proscription of Section 101(f) (6) of the Act, 8 U.S.C.A. 1101(f) (6) and can not be "regarded as a person of good moral character."³

The determination of these two issues, of course, depends upon the facts as well as the law. After thorough examination of both we proceed to our findings of fact, conclusions of law and judgment, all of which are in favor of petitioner, granting her petition and admitting her to citizenship.

FACTS

Petitioner, now a housewife 31 years of age, was born in Prague, became a citizen of Austria, met her American native born citizen spouse and married him in Vienna in November 1958. She came to the United States a week later and has physically resided in Southern California since then except for a short three-week trip to Austria in the late summer of 1960.

From December 1958 to July 1960 she worked as secretary to the Austrian Trade Delegate, Western United States, headquartered in Los Angeles; and since then to the present moment she has been housewife and mother of two youngsters both born in the United States and therefore native born citizens, a girl of five years and a boy of four.

In November 1959, petitioner and her spouse took up residence in a house at 14478 Glorietta Drive, Sherman Oaks, California, and at all times to the present moment this has been and still is the family home, domicile and residence, upon which the citizen spouse has made all payments and which is held in the joint names of petitioner and her spouse.

The life of petitioner and her spouse, like the living of most marital unions, has had its share of connubial spats and reconciliations. Prior to January 1965, on the occasion of two or perhaps three of these domestic quarrels, petitioner's spouse left the home for short periods, leaving virtually all of his clothes, books and other belongings at the home and returning in less than a week in each case.

On January 1, 1965, in what petitioner thought was just another of his temperamental outbursts and domestic tantrums (demonstrations, incidentally, that had what appear to the Court their counterparts in the spouse's temperamental outbursts and tantrums in the course of his activities in attempting to represent petitioner in this proceeding, both at the administrative level and in the courtroom), her spouse physically left the home again. Again, as on the prior occasions, he left the major portion of his clothes at home, along with virtually all of his own books and other belongings. Again, based on his past performance, petitioner earnestly and honestly believed that her spouse would return.

He continued to come to the home at least once a week to visit the children, to discuss the family finances, and occasionally to pick up an additional piece of clothing. And during that time there were discussions of reconciliation as there had been on the prior occasions. There is no doubt that petitioner fully expected him to return to the family home. But when he did not by the middle of April, and in order to bring matters to focus for discussion of realistic approaches to finances, property and reconciliation, she finally saw an attorney who filed a complaint for divorce on her behalf.

Up to the present moment, no further action has been taken in this suit and the complaint is the only effort either she or her spouse has made toward a divorce. As a matter of fact, petitioner's spouse has continued to supply petitioner and the family with all necessary funds for living expenses, including house payments.

During the entire time and up until four months ago, that is, until April 1966, both petitioner and petitioner's spouse honestly and in good faith considered that the family home was the actual residence, the home, the official living place, the place of general abode, the principal and actual dwelling place of both petitioner and petitioner's spouse. This was the place to which all of his mail—other than office mail—was sent. This was the address he used as his residence address. This was the place where he kept practically all of belongings and personal property except for his wearing apparel and his law office equipment. This was the address which he continued to give to the Registrar of Voters, and he actually voted from this address until he changed his registration when he re-registered to vote in April 1966 four months ago.

He did sleep elsewhere, it is true, in an apartment which he rented in February, 1965, at Brookside Country Club in Los Angeles. And he still does so. But, as confirmed by the Manager, he refused to sign a lease and has stayed there on a strictly month-to-month tenancy. And petitioner never did learn where her spouse was actually staying, because the only address she had for him other than the family home was his office. Apparently the first time she heard of the Brookside Country Club apartment was at this final hearing in Court here today.

Under the circumstances it is clear, and the Court finds, that the Sherman Oaks family home was the actual residence, the home, the official living place, the place of general abode, the principal and actual dwelling place of both petitioner and petitioner's spouse, from November 1959 until at least April 1966, four months ago.

Finally, there is no question, and the Court finds, that at all times since November 1958 petitioner and her citizen spouse have been validly and lawfully married; that they are still married at the present moment; and that all of the rights, duties, privileges and obligations arising out of the marriage and thereto appertaining have been and still are in existence and in full force and effect as of this moment.

We now examine the contentions of the Immigration and Naturalization Service in contesting petitioner's citizenship and recommending its denial.

FIRST ISSUE—"IN MARITAL UNION"

The Government contends that petitioner did not live with her spouse "in marital union" for the requisite three-year period immediately preceding the filing date of the petition (March 11, 1965), because of the fact that the spouse physically left the family home on January 1, 1965, and did not sleep there again. Put another way, it is urged by the Service that petitioner was not living "in marital union" with her spouse from January 1 to March 11, 1965, making a gap of two and one-half months in the statutorily required three-year period.

Only two cases have been found with any direct bearing upon the meaning and interpretation of 8 U.S.C.A. § 1430(a) and its phrase "in marital union." Petition for Naturalization of Omar, 151 F. Supp. 763 (S.D.N.Y., 1957), and Petition for Naturalization of Kostas, 169 F.Supp. 77 (D.Del., 1958).

In Omar the Court granted the alien wife's naturalization petition despite the objection of the Government which contended that a court-ordered separation, voluntarily agreed to by petitioner and her citizen husband, as a "cooling-off" period for both of them, somehow broke or interrupted the continuity of the marital union required by the statute. The Court held that this temporary physical separation no more interrupted the marital union than would a two-week vacation in the country for the wife or a two-week fishing trip for the husband. Relying upon the fact that the husband continued to supply the wife with living funds and stressing the testimony of both that there was no intent of any permanent separation, the Court concluded that there had been compliance with the statute so far as "marital union" was concerned.

In Kostas, on the other hand, the Court denied naturalization to an alien who claimed to have been married and living with a citizen wife. The evidence was overwhelming that he had not lived with the wife for as much as one year out of the three-year statutory period; his only address was his brother's home while his wife had an entirely different address; and...