Lotz v. Atamaniuk
| Decision Date | 29 March 1983 |
| Docket Number | No. 15711,15711 |
| Citation | 304 S.E.2d 20,172 W.Va. 116 |
| Parties | Eugenia M. LOTZ, Executrix, etc. v. Michael Peter ATAMANIUK. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. A testatrix's domicile controls which state law applies to her will of personal property.
2. Domicile is a combination of residence (or presence) and an intention of remaining. If domicile has once existed, mere temporary absence will not destroy it, however long continued.
William C. Hollandsworth, Wheeling, for appellant.
Arch W. Riley & Arch W. Riley, Jr., Wheeling, for appellee.
The will of Linda Jean Atamaniuk, who died on April 15, 1978, was probated in Marshall County, West Virginia by her mother, Eugenia Lotz, who was named executrix and sole beneficiary. Linda's estranged husband, Michael Peter Atamaniuk, renounced the will and elected to claim his share of her estate as if she had died intestate. 1 Ms. Lotz sued, alleging that Atamaniuk was not entitled to share in Ms. Atamaniuk's estate because he was living in adultery at the time of his wife's death, and was thus barred from dower. 2 Atamaniuk answered that his wife was a resident of Ohio when she died, and he was electing to take his one-half statutory share of her personal property by Ohio Revised Code Ann. § 2107.39 (Page 1976). Ohio does not deny an adulterous spouse the right to elect against a will.
After a hearing, the trial judge decided that Linda Jean Atamaniuk was a resident of Ohio at the time of her death, and Lotz appealed. 3
Linda and Michael were married in Marshall County in August, 1971, and lived together at their marital domicile there until September, 1977, when they separated. Their separation agreement provided that Michael would remain in their jointly owned home, and Linda leased an apartment in St. Clairsville, Belmont County, Ohio, for a year. Hearing testimony revealed that she had made several unsuccessful attempts to find an apartment in Wheeling; that her checking and savings accounts were at a Belmont County bank; that her automobile was registered in West Virginia, and she had a West Virginia driver's license. She died in Ohio Valley Medical Center in Wheeling, West Virginia on April 15, 1978. Her probated will was dated March 20, 1978, and began: "I, Linda Jean Atamaniuk, of St. Clairsville, Belmont County, Ohio, do make, declare and publish this as my Last Will and Testament."
When she died, her divorce suit against Michael in Marshall County Circuit Court was pending, and the parties here have stipulated that if Linda is found to have been a West Virginia resident, her grounds for divorce would bar her husband from taking his statutory share in her estate.
Initially, we recognize that:
A finding of fact made by a trial chancellor or by a trial court sitting in lieu of a jury will be given the same weight as a verdict of the jury and will not be disturbed by this Court on appeal unless the evidence plainly and decidedly preponderates against such finding. Syllabus Point 8, Sanders v. Roselawn Memorial Gardens, Inc., 152 W.Va. 91, 159 S.E.2d 784 (1968). Carey v. Campbell, 170 W.Va. 541, 295 S.E.2d 32, 33 (1982).
Ms. Atamaniuk's domicile when she died, controls which state law applies to her will of her personal property, White v. Tennant, 31 W.Va. 790, 8 S.E. 596, 597 (1888). Accord, Blatt v. Blatt, 79 Colo. 57, 243 P. 1099, 1102, 57 A.L.R. 221 (1926); Johnson v. LaGrange State Bank, 8 Ill.Dec. 670, 50 Ill.App.3d 830, 365 N.E.2d 1056 (1977), aff'd. and rev'd. in part, 73 Ill.2d 342, 22 Ill.Dec. 709, 383 N.E.2d 185 (1978); Moore v. Cannon 347 Mass. 594, 199 N.E.2d 312 (1964); Garland v. Rowan, 10 Miss. 617 (1844); In re Weiss' Will, 64 N.Y.S.2d 331 (1946); Heater v. Mittendorf, 72 Ohio App. 4, 26 Ohio Op. 508, 50 N.E.2d 559 (1943); Pickering v. Pickering, 64 R.I. 112, 10 A.2d 721 (1940); Collins v. Collins, 219 S.C. 1, 63 S.E.2d 811 (1951); Martin v. Stovall, 103 Tenn. 1, 52 S.W. 296, 298 (1899); Singleton v. St. Louis Union Trust Co., 191 S.W.2d 143, 147 (Tex.Civ.App.1945); In re Duval, 133 Vt. 197, 332 A.2d 802, 803 (1975); French v. Short, 207 Va. 548, 151 S.E.2d 354 (1966); Ford v. Ford, 70 Wis. 19, 33 N.W. 188 (1887); 4 see generally, 16 Am.Jur.2d Conflicts of Laws §§ 52, 62, 71; 79 Am.Jur.2d Wills § 852; 15A C.J.S. Conflict of Laws §§ 18(11), 20(4), 21(4); Restatement, Conflict of Laws 2d, § 265 and Comments, and as to what law governs a surviving spouse's election, 16 Am.Jur.2d Conflicts of Laws § 65; Annot., Conflict of Laws Regarding Election For or Against Will, and Effect in One Jurisdiction of Election in Another, 69 A.L.R.3d 1081 (1976 and Supp.).
Domicile and residence are not synonymous. Shaw v. Shaw, 155 W.Va. 712, 187 S.E.2d 124 (1972). A man may have several residences, but only one domicile. Nonetheless, courts frequently interchange the words, as do legislatures. See Patterson v. Patterson, 167 W.Va. 1, 277 S.E.2d 709, 717 (1981). Cases that we quote in which the word "residence" is used clearly mean what we mean by "domicile".
Our law about domicile dates to 1888. In White v. Tennant, 31 W.Va. 790, 8 S.E. 596, 597, we stated: (Emphasis supplied.)
"The question of residence is one of intention, and the old residence is not considered as lost or abandoned as long as the animus revertendi remains." Maslin's Executors v. Hiett, 37 W.Va. 15, 16 S.E. 437, 439 (1892). We elaborated in State ex rel. Linger v. County Court of Upshur County, 150 W.Va. 207, 144 S.E.2d 689, 702-703 (1965):
... A person is not considered to have lost his residence when he leaves his home and goes into another state, territory or county, for temporary purposes merely, with the intention of returning.... A person does not lose his residence by leaving it with an uncertain, indefinite, half-formed purpose to take up residence elsewhere, and until his purpose to remain has become fixed, he does not abandon his former residence.
These concepts have been reiterated many times. E.g., Shaw v. Shaw, 155 W.Va. 712, 187 S.E.2d 124, 127 (1972); Ward v. Ward, 115 W.Va. 429, 176 S.E. 708 (1934). Accord, State-Planters Bank and Trust Company v. Commonwealth, 174 Va. 289, 6 S.E.2d 629, 632 (1940).
Much of the evidence was that Ms. Atamaniuk never intended to stay in Belmont County, Ohio. Real estate agents in Wheeling, West Virginia testified that she had contacted them for property to rent; her relatives, and friends who were not interested in the result of this proceeding, 5 testified that she wanted to move back to West Virginia and that she had continued in her attempt to reconcile with her husband and move back into her house in Marshall County. Even the property manager of the Ohio apartment complex in which she lived testified that every month Ms. Atamaniuk told her that she was leaving and going back to West Virginia. Ms. Atamaniuk worked in West Virginia, and her mother and husband lived here.
These facts are similar to those in Shaw v. Shaw, 155 W.Va. 712, 187 S.E.2d 124 (1972). Shaw was a divorce action, but considerations of domicile for divorce are the same as for settlement and distribution of a decedent's personal estate. State ex rel. Linger v. Upshur County Court, supra 150 W.Va. at 228, 144 S.E.2d, at 703. Shaw lived for several years in Wayne County, commuting to Putnam County to work. He then rented a furnished room in Putnam County to be closer to his work, but retained his connection to Wayne County, visiting on weekends, and stating that he intended to return there. He filed for divorce in Putnam County and ultimately we found that venue was improper. Even though he lived in Putnam County, he had not become a domiciliary there because he had no intention to stay there.
We also find pertinent the pleadings that Mr. and Ms. Atamaniuk filed in their ongoing divorce action. Linda sued for divorce on September 27, 1977. She filed her complaint in Marshall County and swore that she was a resident of Marshall County, West Virginia. That action was discontinued, and she filed a second suit on November 22, 1977. In the first paragraph of that complaint, she alleged that both parties were bonafide residents of Marshall County; his verified answer on December 20, 1977 admitted her residence. Linda amended her complaint, and Michael answered in February, 1978, again swearing that both parties were West Virginia residents. At the end of March, 1978, Michael moved to file a counterclaim in which he also swore that both parties were West Virginia residents and had been for more than one year next preceding the filing date.
Statements made by parties in the course of judicial proceedings may be "judicial admissions". 29 Am.Jur.2d Evidence §§ 597 and 615. Statements in verified pleadings clearly are within that rubric. Although they are not conclusive in a subsequent proceeding between the same parties (or as here, their representatives), they are admissible and may be given whatever evidentiary weight the trier of fact deems appropriate. 9 Wigmore on Evidence (3d Edition) § 2593; Annot., Admissibility as evidence of...
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