Marriage of Dick, In re

• Decision Date: 26 April 1993
• Docket Number: B055942,Nos. B050928,s. B050928
• Citation: Marriage of Dick, In re, 18 Cal.Rptr.2d 743, 15 Cal.App.4th 144 (Cal. App. 1993)
• Parties: In re the Marriage of Elisabeth L. and John W. DICK. Elisabeth L. DICK, Appellant, v. John W. DICK, Appellant.
• Court: California Court of Appeals

Page 743

18 Cal.Rptr.2d 743

15 Cal.App.4th 144

In re the Marriage of Elisabeth L. and John W. DICK Elisabeth L. DICK, Appellant, v.John W. DICK, Appellant.

Nos. B050928, B055942.

Court of Appeal, Second District, Division 4, California.

April 26, 1993.

Review Denied Aug. 26, 1993.

Trope and Trope and Thomas Paine Dunlap, Los Angeles, for appellantWife.

Stephen A. Kolodny and Carole R. Azran, Los Angeles, for appellantHusband.

ARLEIGH M. WOODS, Presiding Justice.

These consolidated appeals arise from dissolution proceedings in the marriage of John W. and Elisabeth L. Dick.Both have appealed, wife from the judgment of dissolution, and husband from an order awarding spousal support and attorney fees.We considered each appeal separately.

WIFE'S APPEAL

Wife appeals from the judgment of dissolution, arguing that the court lacked jurisdiction to render the judgment because husband's status as a nonimmigrant alien, i.e., a tourist, precluded a finding, for purposes of jurisdiction, that he intended to make his domicile in California.Viewed in the light most favorable to the judgment (Sevier v. Locher(1990)222 Cal.App.3d 1082, 1087, 272 Cal.Rptr. 287), the evidence established the following facts:

The parties married on February 14, 1982, and separated in April, 1987.Wife filed an action for dissolution in Arapahoe County, Colorado, and then refiled the action in Denver, Colorado.Husband was not served with the Colorado actions.

On October 26, 1988, wife filed a petition for legal separation in the Los Angeles Superior Court.In the petition she stated her intention "to amend this Petition and request Dissolution of Marriage as soon as residence requirements are met."She subsequently filed a second petition that omitted this statement.The petition was served on husband by publication.In his response to the petition, husband stated that if he was able to meet California's "jurisdictional requirements, this Response to Amended Petition will be amended to seek dissolution of marriage."On December 29, 1989, husband amended his response to allege that he had satisfied the jurisdictional requirements of residence by residing in the state for six months and the county for three.He requested that the court dissolve the marriage.He also moved for bifurcation of trial so that the issue of status could be determined apart from the issue of spousal support.

Wife filed papers challenging husband's claim that he had satisfied the residence requirement.The core of her argument was that, because husband was a nonimmigrant alien, he could not possess the intention to be a resident of California.She cited deposition testimony by husband in which he admitted he was a Canadian citizen who had tourist status in the United States.She argued that under immigration law, tourist status embodied an intent to return to one's homeland, and this conflicted with an intent to become a resident of California for purposes of the dissolution proceedings.

The motion for bifurcation was granted and a trial conducted on the issue of status.The only issue as to which evidence was taken went to the question of whether husband had satisfied the residence requirement.

It was established at trial that during the marriage, the parties resided in Englewood, Colorado, but they also maintained residences elsewhere, including a manor on the Isle of Jersey in the Channel Islands, two houses in Palm Springs, a house in Pasadena, a penthouse in London and a skiing condominium in Breckenridge, Colorado.

Husband testified that until 1984, he had dual American and Canadian citizenships.That year he renounced his American citizenship and became a citizen of the Dominican Republic.He continued to travel on a Canadian passport.

From 1981 to 1988 or 1989, husband testified he considered his principal residence to be on the Isle of Jersey.In June 1989, husband rented a room at his sister's house in Pasadena but subsequently rented an apartment in Los Angeles.Husband came to Los Angeles with the intent of remaining here indefinitely to develop business contacts.Husband obtained a California driver's license and opened a local bank account.While he lived at his sister's house, he paid her $400 a month for the room he occupied and had a telephone installed in it.He received his phone bill at her address and, after he moved out, his mail was forwarded to his Los Angeles apartment from his other residences.He also testified that he owned a car registered in California at his present address.

Husband testified that his current immigration status was as a tourist and that he was required to leave the country every six months and to re-enter.He testified that he had discussed with his lawyer the possibility of obtaining a green card but had not yet filed an application for one.

At the conclusion of the trial, the court found that "residence does exist."It then went on to find irreconcilable differences and granted the judgment of dissolution.Wife appealed.We affirm.

I

Wife presents five contentions: (1) that husband's immigrant status as a nonimmigrant alien precludes a finding of residence for purposes of dissolution; (2) that even if his immigrant status does not preclude a finding of residence, there is insufficient evidence to support that finding; (3)the court erred when it excluded wife's immigration expert from testifying; (4) the issue of status was not before the court because husband failed to obtain leave of court to file an amended response to her petition; and (5)the court erred by depriving wife of an opportunity to request a statement of decision.We deal with each contention seriatim.

"A judgment decreeing the dissolution of a marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition."(Civ.Code, § 4530, subd. (a).)Whether the residency requirement has been met is a question of fact and the burden of establishing residence is on the party asserting it.(In re Marriage of Thornton(1982)135 Cal.App.3d 500, 510, 185 Cal.Rptr. 388;Khan v. Superior Court(1988)204 Cal.App.3d 1168, 1180, 251 Cal.Rptr. 815.)For purposes of Civil Code section 4530, subdivision (a), residency is synonymous with domicile, the latter term meaning " 'both the act of residence and an intention to remain....' "(Original italics.)(In re Marriage of Thornton, supra, 135 Cal.App.3d at p. 507, 185 Cal.Rptr. 388, quotingSmith v. Smith(1955)45 Cal.2d 235, 239, 288 P.2d 497.)

The parties have not cited to us, nor has our research disclosed, a California case that addresses the question of whether a nonimmigrant alien can establish residency for the purpose of obtaining a dissolution of marriage.However, the cases cited to us, and those which we have found, from other jurisdictions hold that immigration status is, at most, evidence of domiciliary intent, but not dispositive of the residency issue as a matter of law.These cases hold that a party's nonimmigrant alien status does not bar that party from establishing domicile for purposes of a dissolution statute.(Alves v. Alves(D.C.App.1970)262 A.2d 111;Rzeszotarski v. Rzeszotarski(D.C.App.1972)296 A.2d 431;Cocron v. Cocron(1975)84 Misc.2d 335, 375 N.Y.S.2d 797;Abou-Issa v. Abou-Issa(1972)229 Ga. 77, 189 S.E.2d 443;Bustamante v. Bustamante(Utah Sup.Ct.1982)645 P.2d 40;Nicolas v. Nicolas(Fla.App.1984)444 So.2d 1118;Pirouzkar and Pirouzkar(1981)51 Or.App. 519, 626 P.2d 380;Williams v. Williams (D.St.Croix 1971)328 F.Supp. 1380.)We agree with the reasoning of these cases on this issue.

Wife acknowledges this authority, but insists that these cases are factually distinguishable because in each of these cases the nonimmigrant resident had applied for permanent resident status.This is not true of every case cited, however, and even where it is true, the intention of the noncitizen spouse to obtain a more permanent immigration status was not dispositive.In Alves v. Alves, supra, 262 A.2d 111, for instance, there was no suggestion that the nonimmigrant alien husband had demonstrated any intention to seek permanent resident status.Yet, the court held that, regardless of his immigration status, he had established domicile for purposes of obtaining a divorce in the District of Columbia.

In its thoughtful analysis, the Alves court said: "The relationship between an alien and a jurisdiction such as the District of Columbia, and an alien and the United States are not of equal significance.Domicile is concerned with one's physical presence in a particular locality and the 'nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance.'It is the appellee's connection with the District of Columbia and the legal rights and duties which accompany his presence here that is of importance.Appellee's retention of British citizenship does not preclude his becoming domiciled in the District of Columbia.Nor do we think that the fact appellee did not apply for permanent residence in the United States forecloses the possibility of his being domiciled in the District of Columbia.Under the Immigration and Nationality Laws it is possible, for a variety of reasons, for an alien to remain in the United States for many years, as appellee has done, without applying for permanent residence.Furthermore, to impose such a requirement [of seeking permanent resident status] would have the effect of denying appellee access to our courts without regard to the period of time he has resided in the District of Columbia, his intention in moving into the District of Columbia and other relevant factors.Just as aliens are subject to the jurisdiction of our courts, they should be entitled to invoke the jurisdiction of the courts for their own...