Israel v. Israel, 99

• Citation: 255 N.C. 391,121 S.E.2d 713
• Decision Date: 27 September 1961
• Docket Number: No. 99,99
• Court: United States State Supreme Court of North Carolina
• Parties: Frank Lee ISRAEL v. Maxine Faye ISRAEL.

Page 713

121 S.E.2d 713

255 N.C. 391

Frank Lee ISRAEL v. Maxine Faye ISRAEL.

No. 99

Supreme Court of North Carolina.

Sept. 27, 1961

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 relations and responsibilities of the utmost significance. The domicil of one spouse within a State gives power to that State, we have held, to disolve a marriage wheresoever contracted.'

''In a strict legal sense that place is properly the domicil of a person where he has his true permanent home and principal establishment, and to which he has, whenever he is absent, the intention of returning, and from which he has no present intention of moving.' 17A...