Israel v. Israel, 99
| Docket Nº | No. 99 |
| Citation | 255 N.C. 391, 121 S.E.2d 713 |
| Case Date | September 27, 1961 |
| Court | United States State Supreme Court of North Carolina |
Page 713
v.
Maxine Faye ISRAEL.
[255 N.C. 394] William J. Cocke, Asheville, for defendant-appellant.
James S. Howell, Asheville, for plaintiff-appellee.
WINBORNE, Chief Justice.
The defendant makes numerous assignments of error. This is the pivotal one: Did the trial court err in instructing the jury as a matter of law that unless plaintiff did intentionally change his home and intend to make some other State his permanent home for an indefinite period of time or for a permanent length of time, that his residence would remain in North Carolina even though he may have been in Korea or various other localities? We think the answer is No.
In Martin v. Martin, 253 N.C. 704, 118 S.E.2d 29, 31, Moore, J., speaking for the Court said, quoting in part as follows: 'Jurisdiction in divorce actions is conferred by statute. The requirement that one of the parties to a divorce action shall have resided in the State for a specified period of time next preceding the commencement of the action is jurisdictional. If the element of residence is lacking the court has no jurisdiction to try the action or grant a divorce. Henderson v. Henderson, 232 N. C. 1, 9, 59 S.E.2d 227; Ellis v. Ellis, 190 N.C. 418, 421, 130 S.E. 7. In an action for divorce ' The plaintiff shall set forth in his or her complaint that the complainant or defendant has been a resident of the State of North Carolina for at least six months next preceding the filing of the complaint * * *.' G.S. § 50-8.
''* * * To establish a domicile there must be a residence, and the intention to make it a home or to live there permanently or indefinitely. State v. Williams, [224 N.C. 183 (1944), 29 S.E.2d 744].' Bryant v. Bryant, 1947, 228 N.C. 287, 289, 45 S.E.2d 572.
'* * * In Williams v. State of North Carolina, 1945, 325 U.S. 226, 229, 65 S.Ct. 1092, 89 L.Ed. 157 it is said: 'Under our system of law, judicial power to grant a divorce--jurisdiction, strictly speaking--is founded on domicil. Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804; Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L. Ed. 366. The framers of the Constitution were familiar with this jurisdictional prerequisite, and since 1789 neither this Court nor any other court in the English-speaking world has questioned it. Domicil implies a nexus between persons and place of such permanence as to control the creation of legal...
To continue reading
Request your trial
-
Lynch v. Lynch, 90
...court lacked subject matter jurisdiction over the divorce action. Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975); Israel v. Israel, 255 N.C. 391, 121 S.E.2d 713 (1961). G.S. 1A-1, Rule 12(h)(3) provides that subject matter jurisdiction may be challenged at any point in a proceeding, there......
-
Groh v. Egan, 2233
...Kopasz v. Kopasz, 107 Cal.App.2d 308, 237 P.2d 284, 285-286 (1951); Means v. Means, 145 Neb. 441, 17 N.W.2d 1, 3 (1945); Israel v. Isreal, 255 N.C. 391, 121 S.E.2d 713, 715-716 (1961); Wiseman v. Wiseman, 216 Tenn. 702, 393 S.W.2d 892, 895 33 Restatement of Conflict of Laws, § 21 comment c.......
-
Eudy v. Eudy, 124
...fact to be true before a divorce judgment may be entered. G.S. § 50--10; Wicker v. Wicker, 255 N.C. 723, 122 S.E.2d 703; Israel v. Israel, 255 N.C. 391, 121 S.E.2d 713; Martin v. Martin, 253 N.C. 704, 118 S.E.2d 29; Pruett v. Pruett, Supra; Carpenter v. Carpenter, Supra; Ellis v. Ellis, 190......
-
Johnson v. Southern Ry. Co., 20
...was reached. The distinguishing feature is that in the Boyd case plaintiff stopped and looked at a point 20 feet from the track where [255 N.C. 391] her view was almost entirely obstructed and then went blindly forward. Plaintiff said: 'We did not look but one time. * * * I just don't know ......
-
Lynch v. Lynch, No. 90
...court lacked subject matter jurisdiction over the divorce action. Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975); Israel v. Israel, 255 N.C. 391, 121 S.E.2d 713 (1961). G.S. 1A-1, Rule 12(h)(3) provides that subject matter jurisdiction may be challenged at any point in a proceeding, there......
-
Groh v. Egan, No. 2233
...Kopasz v. Kopasz, 107 Cal.App.2d 308, 237 P.2d 284, 285-286 (1951); Means v. Means, 145 Neb. 441, 17 N.W.2d 1, 3 (1945); Israel v. Isreal, 255 N.C. 391, 121 S.E.2d 713, 715-716 (1961); Wiseman v. Wiseman, 216 Tenn. 702, 393 S.W.2d 892, 895 33 Restatement of Conflict of Laws, § 21 comment c.......
-
Eudy v. Eudy, No. 124
...fact to be true before a divorce judgment may be entered. G.S. § 50--10; Wicker v. Wicker, 255 N.C. 723, 122 S.E.2d 703; Israel v. Israel, 255 N.C. 391, 121 S.E.2d 713; Martin v. Martin, 253 N.C. 704, 118 S.E.2d 29; Pruett v. Pruett, Supra; Carpenter v. Carpenter, Supra; Ellis v. Ellis, 190......
-
Johnson v. Southern Ry. Co., No. 20
...was reached. The distinguishing feature is that in the Boyd case plaintiff stopped and looked at a point 20 feet from the track where [255 N.C. 391] her view was almost entirely obstructed and then went blindly forward. Plaintiff said: 'We did not look but one time. * * * I just don't know ......