Lyons v. Borden

• Decision Date: 29 December 1961
• Docket Number: Civ. No. 1815.
• Citation: 200 F. Supp. 956
• Parties: Corinne H. LYONS and William F. Lyons, Plaintiffs, v. Mildred D. BORDEN, Defendant.
• Court: U.S. District Court — District of Hawaii

200 F. Supp. 956

Corinne H. LYONS and William F. Lyons, Plaintiffs, v. Mildred D. BORDEN, Defendant.

Civ. No. 1815.

United States District Court D. Hawaii.

December 29, 1961.

A. William Barlow, Honolulu, Hawaii, for plaintiff.

Smith, Wild, Beebe & Cades, Honolulu, Hawaii, of counsel, by Daral G. Conklin, Honolulu, Hawaii, for defendant.

TAVARES, District Judge.

In this case the court previously rendered an oral decision, finding that the plaintiffs in this action, which is based on alleged diversity of citizenship, had failed to sustain the burden of proof as to their alleged Ohio citizenship, and that therefore the action must be dismissed for lack of jurisdiction.

The Complaint (paragraph I) alleges that "Plaintiffs reside at Coshocton, Ohio. Defendant resides at 3631 Likini Street, City and County of Honolulu, State of Hawaii."¹ The oral decision stated that the evidence left the court in a state of uncertainty as to whether the plaintiffs were citizens of Hawaii or citizens of Ohio. This uncertainty arose from the fact that the plaintiffs, in connection with the elections for the newly-to-be-admitted State of Hawaii, had registered to vote, and had voted in 1959, in the Hawaii elections. In connection with such registration each of the plaintiffs had signed an affidavit under oath stating that he or she had resided in the Territory of Hawaii for more than one year previously and was not here by reason of being in the military forces of the United States.²

The Plaintiff, William F. Lyons, is, and at all times mentioned in this decision was, a physician in the service of the United States Navy, having the present rank of Captain. He has been living in the City and County of Honolulu, Territory and State of Hawaii, by virtue of military orders, since at least 1957. He had been assigned government housing on a military reservation, when he arrived, but had found it insufficient and had therefore, in 1957, purchased a home in the City and County off the reservation, which home he and his wife still own. They also owned real property purchased as an investment, on the Island of Hawaii, at the time of their registration to vote in Hawaii. Both Captain and Mrs. Lyons testified that the home in Hawaii had been purchased simply because the government housing was too small for their family of husband, wife, and four children, and because they felt it was a good investment; that in purchasing the home they had had no intention of changing their domicile from the State of Ohio, which they both still claim as their domicile.

Captain Lyons had owned for many years, and still owns, a part interest in a home inherited by him and his brothers and sisters from their father, and still lived in by their mother, and in which for some years after getting out of college Captain Lyons and his wife had resided. Captain and Mrs. Lyons also testified that this Ohio home was still considered by them as their domicile and permanent address, that it was so stated in Captain Lyons' Navy record, which had never been changed, and that Captain Lyons had numerous close ties and associations with relatives and freinds, both socially and professionally, in Ohio, he being licensed to practice in the State of Ohio and nowhere else, all of which induced him at all times to intend to retain his Ohio domicile. All of these circumstances were advanced as reasons tending to indicate that he could not have intended, and did not intend, to change his alleged pre-existing Ohio domicile by reason of the registration to vote, and voting, in Hawaii in 1959. Plaintiffs also testified that they had previously, some years before, similarly registered to vote, and voted, in Florida while they were stationed there. Both plaintiffs testified that neither in the Florida situation nor in the Hawaii situation had they intended to, or understood, that thereby they were effecting, or might be effecting, a change of their domicile.

The court finds that the evidence is sufficient to establish that, after having voted in Florida, the plaintiffs resided in Ohio in a manner sufficient to restore domicile. Among other things, Captain Lyons testified that he was in the habit of going to a conference on the mainland, at least once a year and that on the way would usually take off a few days to visit his above mentioned home in Ohio, remaining there not more than a few days at a time. The court therefore starts out with the assumption that Ohio was the domicile of the plaintiffs immediately before the registration to vote in Hawaii. The question then remains as to whether, by their overt acts, the plaintiffs became domiciled in Hawaii, regardless of their stated subjective intention not to become so domiciled. In this connection, it is contended by the defendant's counsel that regardless of any such subjective intent, overt acts, namely registration to vote and voting in Hawaii, were committed by the plaintiffs, which, ipso facto, resulted in a change of domicile, notwithstanding any possible subjective intent to the contrary.

The plaintiffs both made a favorable impression on the witness stand by their candidness. The court at first found it difficult to believe that people with plaintiffs' standing, education and military experience, including a great deal of traveling to and sojourning in different jurisdictions, would not realize that, in order to vote in Hawaii, they would have to claim domicile or citizenship in Hawaii. Their counsel contended that they didn't understand that residence for purposes of voting must be the same as domicile, and that therefore they were under the bona fide impression that they could remain domiciled in Ohio and still claim a type of residence in Hawaii for local voting purposes that would not effect a change of their Ohio domicile and citizenship.

A student in an American state generally learns in his prescribed studies the necessity for a permanent residence and citizenship in a state in order to be entitled to vote. The history of these plaintiffs in the military service, together with these considerations of their intelligence and education, and the general information that would ordinarily be picked up by military personnel being assigned from place to place, would tend to indicate that they ought to have known something about the requirements for, and significance...