Irvin v. Irvin, 40808
| Decision Date | 08 March 1958 |
| Docket Number | No. 40808,40808 |
| Parties | Warren K. IRVIN, Appellant, v. Shirley A. IRVIN, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. While for many legal purposes there is a clear distinction between residence and domicil, when jurisdiction of a court is under consideration, residence, as defined by the statute, is substantially the equivalent of domicil.
2. The residence of a person as defined by statute (G.S.1949, 77-201, Twenty-third) is the place adopted by a person as his place of habitation, and to which, whenever he is absent, he has the intention of returning. To accomplish a change of residence there must be not only physical or bodily presence in the new location, but also the intention to abandon the old residence and adopt another in the new location, either permanently or indefinitely.
3. Ordinarily the trier of the fact is not required to believe the testimony of any witness merely because there is no testimony to controvert it, but where the plaintiff produces the only testimony on every material element bearing upon his residence, which is at issue, and such testimony is not inherently improbable or uncandid, the cross-examination, or examination by the court, does not develop any conflict, the defendant produces no testimony in opposition, and plaintiff's testimony is corroborated by the verified statement of the defendant, the trier of fact is not justified in arbitrarily or capriciously disregarding such testimony.
4. Upon the facts related in the foregoing syllabus, it is held that the trial court committed reversible error in dismissing plaintiff's cause of action on the ground that the plaintiff was not a bona fide resident of Shawnee County, Kansas, in a divorce action.
Louis F. Eisenbarth, Topeka, argued the cause, and Donald A. Farmer, Topeka, was with him on the briefs, for appellant.
Gene E. Schroer, Topeka, argued the cause, and Norbert R. Dreiling, Hays, and Robert W. Domme and Michael A. Barbara, Topeka, were with him on the briefs, for appellee.
This is an appeal in a divorce action from an order of the lower court sustaining the defendant's oral motion to dismiss on the ground that the plaintiff (appellant herein) was not an actual bona fide resident of Shawnee County at the time his action was filed in Shawnee County, Kansas.
The only question presented is whether there was sufficient evidence for the trial court to conclude that the plaintiff was not an actual bona fide resident of Shawnee County, Kansas, at the time he filed his action.
The facts in this case are not in dispute. The plaintiff and the defendant, husband and wife respectively, lived at Emporia, Kansas, in a housekeeping apartment from some time in July, 1955, until the summer of 1956. In May, 1956, the wife was admitted to the Topeka State Hospital under a 90-day referral order of the Lyon County Probate Court, and during the month of July, 1956, became a voluntary patient at that hospital. Prior to October 1, 1956, the plaintiff had employment near Emporia working on construction of the Kansas Turnpike. On or about the 1st day of October, 1956, the plaintiff's employer moved to a job in Colorado. On the advice of the wife's doctor that plaintiff remain near his wife, plaintiff came to Topeka and rented a sleeping room at 1011 Munson Street. He abandoned the apartment in Emporia and obtained employment as a surveyor with an engineering firm in Topeka to be near his wife. He brought his personal belongings with him and stored his household goods and furniture on his father's farm at McCracken, Kansas. He took most of his wife's clothes to the hospital. Plaintiff had not lived in McCracken since childhood and had no living quarters other than the sleeping room at 1011 Munson, Topeka, Kansas, at the time this action was filed. Plaintiff reported for work each day at his employer's office in Topeka and for some time traveled to a project in the Olathe area from said office each day.
As to the plaintiff's intention to make Topeka his residence he testified in substance that after he moved to Topeka he did not have any residence in Emporia or anywhere alse; that he intended to stay, continue to live, and make Topeka his home; that he intended to keep on working for his Topeka employer and possibly go back to school next fall. He testified that he desired to acquire a degree in engineering and would have to go to Kansas State College or Wichita University for that purpose.
On the 23rd day of November, 1956, at about 9:00 a. m., the husband filed his action for divorce against the wife in Shawnee County, attempting service upon her at the Topeka State Hospital. The wife left the hospital before service was had upon her and went to Ellis County, Kansas, the home of her parents. On the same day at about 3:00 p. m., the wife filed her action for divorce in Ellis County, Kansas. On the 26th day of November, 1956, the wife was served with summons in Ellis County in the Shawnee County action, and at the time of the hearing in the lower court there was no return of service upon the husband in the Ellis County action.
The wife filed a written motion in the Shawnee County District Court to dismiss the husband's action in Shawnee County on the ground that the Ellis County action was prior in time. At the time of the hearing on this motion, December 21, 1956, the parties stipulated, among other facts, that the Shawnee County action was filed prior in time, as heretofore related, and the trial court so found. The wife then orally moved that the action in Shawnee County be dismissed on the ground that the husband was not a bona fide resident of Shawnee County at the time his petition was filed.
The husband took the witness stand and testified under oath on direct and cross examination and upon examination by the court. The wife was present in court with her attorney and offered no testimony. The foregoing facts are the substance of the husband's testimony and the stipulations entered into by the parties. In addition to the husband's testimony the lower court had before it in evidence the allegations of the verified petition filed by the wife in Ellis County (conceded by appellee in her brief), which was attached as an exhibit to her written motion to dismiss. The pertinent portion of the petition recites:
'That the defendant [husband] is a resident of Shawnee County, Kansas, and that his correct post office address is 1011 Munson Street, Topeka, Kansas.
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'Plaintiff [wife] alleges the defendant is regularly employed as a member of a survey team by an engineering firm in Topeka, Kansas. * * *'
Upon the foregoing evidence the trial court dismissed the husband's action in Shawnee County on the ground that the husband was not an actual bona fide resident of Shawnee County at the time his petition was filed, whereupon appeal was duly perfected to this court.
Three statutes have a bearing on the question presented. G.S.1949, 60-508, provides:
'An action for a...
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Bicknell v. Kan. Dep't of Revenue
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Bicknell v. Kan. Dep't of Revenue
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