Jacobs, Matter of

• Citation: 315 N.J.Super. 189,717 A.2d 432
• Parties: In the Matter of Rose JACOBS, an Alleged Incompetent. Probate Part, Monmouth County
• Decision Date: 18 March 1998
• Court: Superior Court of New Jersey

Page 189

315 N.J.Super. 189

717 A.2d 432

In the Matter of Rose JACOBS, an Alleged Incompetent.

Superior Court of New Jersey,

Chancery Division,

Probate Part,

Monmouth County.

March 18, 1998.

Peluso & Staufenberg, Shrewsbury (Lynn E. Staufenberg, appearing), for plaintiff.

Theresa M. Simonson, Whiting, for defendant Harvey Wartell.

Jonathan Rudnick, Hazlet, court appointed counsel for Rose Jacobs, an alleged incapacitated person.

FISHER, P.J. Ch.

This court is called upon to determine the extent to which a person, alleged to be incapacitated within the meaning of N.J.S.A. 3B:12-25 ¹, may choose a new domicile. The particular question is whether Mrs. Rose Jacobs, alleged to be incapacitated, is now domiciled in New Jersey. If she is, then this guardianship action may proceed; if not, it must be dismissed.

Mrs. Jacobs is 85 years old. She has two children: Miriam Russo (Miriam), who commenced this action and Harvey Wartell (Harvey), who seeks dismissal asserting that Mrs. Jacobs is domiciled in Florida. Neither questions that Mrs. Jacobs was domiciled in Florida at the time her husband died in 1989. She then intermittently resided in Florida and New York until 1991 when she permanently located to New York to live with Harvey. In 1994, Harvey retired and moved, with Mrs. Jacobs, to Florida where she remained until October 1, 1997. While it may be unclear whether Mrs. Jacobs ever made a change in domicile from the time her husband died until October 1, 1997, there is no doubt that she never became domiciled in New Jersey until, if Miriam's position is sustained, October 1, 1997 or sometime thereafter.

Harvey's motion to dismiss for lack of jurisdiction requires a consideration of whether the events which occurred on and after October 1, 1997 should be viewed by the court as causing a change in Mrs. Jacob's domicile. The location of her domicile is of critical importance since a court should not exercise jurisdiction over an alleged incapacitated person solely on the basis of that person's residence or current location. As a general matter, such an action should be commenced only where the alleged incapacitated person is actually domiciled. See, Lamar v. Micou, 112 U.S. 452, 5 S.Ct. 221, 28 L.Ed. 751 (1884); In re Estate of Gillmore, 101 N.J.Super. 77, 90, 243 A.2d 263 (App.Div.1968), certif. denied 52 N.J. 175, 244 A.2d 304 (1968). A person can have many residences but only one domicile. Kurilla v. Roth, 132 N.J.L. 213, 215, 38 A.2d 862 (Sup.Ct.1944). By insisting upon the alleged incapacitated person being domiciled within the forum jurisdiction, the opportunity for conflicting rulings by courts of different states is practically eliminated.

As noted above, Mrs. Jacobs should be viewed as a domiciliary of another state (probably Florida) unless, in some way, she became domiciled in New Jersey on or after October 1, 1997. At that time she was sent by Harvey from Florida to New Jersey to stay with Miriam. She did not pack all her belongings; as Miriam contends, she was sent to New Jersey with only two days' worth of clothing. She did not change any bank accounts or remove with her any important possessions and she had in her possession a return airline ticket to Florida for a flight on November 1, 1997. Since that time Harvey and Miriam have disagreed as to whether Mrs. Jacobs should return to Florida, leading to the filing of this action by Miriam and Harvey's motion to dismiss.

Domicile is in "a strict legal sense ... the place where [a person] has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning, and from which he has no present intention of moving." See, Cromwell v. Neeld, 15 N.J.Super. 296, 300, 83 A.2d 337 (App.Div.1951). It is well settled that a domicile may be acquired in one of three ways: (1) through birth or place of origin; (2) through choice by a person capable of choosing a domicile; and (3) through operation of law in the case of a person who lacks capacity to acquire a new domicile by choice. Gillmore, supra, 101 N.J.Super. at 87, 243 A.2d 263. Miriam's chief contention centers on the second method; Miriam claims that while Mrs. Jacobs is in such a mental condition that she will eventually be declared to be an incapacitated person, she may still have the capacity to choose a domicile.

It has been generally expressed by a number of jurisdictions--in a way which merely begs the question--that one who has been adjudged mentally incapacitated or who has been shown to be mentally deficient at the time of a change in domicile has been alleged to have occurred, may possess sufficient mental capacity to elect a new domicile. See, for example, Restatement, Contracts 2d § 23 ("A person who is mentally deficient may acquire a domicil of choice if he has sufficient mental capacity to choose a home"). See also, In re Sherrill's Estate, 92 Ariz. 39, 373 P.2d 353 (1962); Estate of Phillips, 269 Cal.App.2d 656, 75 Cal.Rptr. 301 (1969); Matthews v. Matthews, 141 So.2d 799 (Fla.App.1962); In re Estate of Peck, 80 N.M. 290, 454 P.2d 772 (1969), cert. denied 396 U.S. 942, 90 S.Ct. 376, 24 L.Ed.2d 242 (1969); Groseclose v.. Rice, 366 P.2d 465 (Okla.1961); and the cases cited in Annotation, "Change of State or National Domicil of Mental Incompetent", 96 A.L.R.2d 1236 (1964). These authorities, while apparently recognizing a lesser mental capacity for the choosing of a domicile than the ability to care for one's self or property, do not define that capacity or clarify the distinction.

A few older decisions of our courts appear to create a higher obstacle for an effective choice of domicile by an incapacitated person. See, In re Collins', 11 N.J.Misc. 233, 235, 165 A. 285 (Surr.Ct.1932)("An incompetent person is generally assumed in law not capable of forming an 'intention' to change domicile"); cf., In re Child, 16 N.J.Eq. 498 (Chan.1864). A more recent decision which discussed the ability of an incapacitated person to choose a new home found her "so advanced in senility at the time she left her New York home to live in New Jersey that she did not possess the requisite mental capacity to make a new domicile by choice." Gillmore, supra, 101 N.J.Super. at 87, 243 A.2d 263. But that statement could as easily support a conclusion that the level of incapacity which would warrant the appointment of a guardian is the same as the standard necessary to make an effective choice of domicile as not.

It is true that courts should refrain from limiting an incapacitated person's rights whenever possible. Even those who are generally incapacitated vary widely in their degree of alertness and in their ability to communicate. Our Supreme Court has found that a person may be competent to make a medical decision regarding a course of medical treatment even if previously adjudicated in need of a guardian. In re Conroy, 98 N.J. 321, 382, 486 A.2d 1209 (1985). Because there are many levels of mental capacities and because the appointment of a guardian is a significant restriction of a person's liberty and pursuit of happiness, the Supreme Court has directed trial courts to "preserve as much as possible their right of self-determination while discharging the judicial responsibility to protect their best interests." In re M.R., 135 N.J. 155, 167, 638 A.2d 1274 (1994). The Court in M.R. said that "someone who is unable to manage his or her own affairs may still be capable of deciding where and with whom to live." 135 N.J. at 169, 638 A.2d 1274. That would appear to resolve the legal issue raised herein except the context in which that comment was made by the Supreme Court is strikingly different. M.R. was a mildly to moderately retarded 21 year old woman with Down's Syndrome. The question in M.R. concerned which divorced parent would be M.R.'s primary caregiver. It is important to observe that the Court's words about M.R.'s ability to choose "where and with whom to live", even if she was in need of a guardian, were directed toward M.R.'s choice between parents residing in the same jurisdiction. Moreover, in that context, the Court recognized that her choice "if proved incorrect, can be corrected". 135 N.J. at 169, 638 A.2d 1274. The Court did not have before it a choice by the incapacitated person to live outside the jurisdiction which might not be so easily correctable for reasons expressed elsewhere in this Opinion.

Our Supreme Court has drawn no bright lines with respect to the scope of autonomy of incapacitated persons; however, in light of Conroy and M.R., the Court would no doubt conclude that those who have been or will be determined to be incapacitated persons may still, upon an appropriate showing of capacity, choose a different state as their own domicile. As with the ability to choose between medical choices or which parent's home to primarily live in, the choice of a "[d]omicile is very much a matter of the mind--of intention," Lyon v. Glaser, 60 N.J. 259, 264, 288 A.2d 12 (1972). It is beyond quarrel in the wake of these cases, and particularly M.R., that a person in need of a guardian may nonetheless have the capacity to choose a domicile. Ultimately, with respect to any natural and inalienable right, including the right to choose a home, whether an incapacitated person will be permitted self-determination depends upon the facts presented.

Miriam claims that it is Mrs. Jacobs' desire to remain in New Jersey and to be declared domiciled here. Certainly, if Mrs. Jacobs were a person who has lucid periods and an ability to, at times, think and communicate clearly, her views on that subject would be of interest. The medical evidence presented, however, does not factually support the legal argument Miriam has raised. As required by R. 4:86-2, Miriam appended two medical certifications. The certification of Dr. Joel S. Ross indicates that he found Mrs. Jacobs to have "significant cognitive deficits and memory loss"; he concluded...