Marriage of Rinderknecht, In re

• Decision Date: 04 October 1977
• Docket Number: No. 1-1276A236,1-1276A236
• Citation: 174 Ind.App. 382,367 N.E.2d 1128
• Parties: In re the MARRIAGE OF Nanci Ann RINDERKNECHT, Wife, Appellant, and William A. Rinderknecht, Husband, Appellee.
• Court: Indiana Appellate Court

Page 1128

367 N.E.2d 1128

174 Ind.App. 382

In re the MARRIAGE OF Nanci Ann RINDERKNECHT, Wife, Appellant,

and

William A. Rinderknecht, Husband, Appellee.

No. 1-1276A236.

Court of Appeals of Indiana, First District.

Oct. 4, 1977.

J. V. Boles, Kendall, Stevenson & Lowry, Danville, Alan H. Goldstein, Dutton, Kappes & Overman, Indianapolis, for appellant

John M. Howard, Jr., Howard & Lawson, Danville, for appellee.

LOWDERMILK, Judge.

STATEMENT OF THE CASE

Petitioner-appellee William A. Rinderknecht (William) filed with the Hendricks Circuit Court a petition for the dissolution of his marriage to Nanci Ann Rinderknecht (Nanci). The trial court entered a decree wherein the marriage was dissolved, and the personal and property rights of the parties were adjudicated; Nanci has brought this appeal wherein she questions the jurisdiction of the trial court to dissolve the marriage and to adjudicate the interests of the parties in that marriage.

FACTS

William is a member of the U. S. Air Force and is stationed at Omaha, Nebraska. For eleven years prior to his enlistment into the Air Force in 1968, William lived with his parents in Danville, Hendricks County, Indiana. Nanci, who is now a resident of Omaha, Nebraska, married William in Mountain Home, Idaho in 1971. The parties have one child, who was born in 1974, and who has remained in Nanci's custody before, during, and after the dissolution of William's and Nanci's marriage.

William reenlisted in the Air Force in 1972, and he listed the home of his parents in Danville, Hendricks County, Indiana, as his permanent address. Subsequent to his reenlistment, William's parents moved to a new address in Danville.

William and Nanci resided together in Air Force housing on Offutt Air Force Base in Omaha, Nebraska from August 1975 until April 1976 when William moved out. Nanci continued to live in that same on-base housing after William moved out.

On May 3, 1976 Nanci filed a petition for separate board and maintenance in the District Court of Sarpy County, Nebraska. On May 7, 1976 William petitioned for the dissolution of his marriage to Nanci in the Hendricks Circuit Court. On May 10, 1976 William was served in Nebraska with Nanci's petition for separate board and maintenance, and on May 11, 1976 Nanci received by certified mail, return receipt requested In response to Nanci's petition for separate board and maintenance the Nebraska court gave Nanci possession of a 1975 Matador automobile which was in William's name alone, custody of the child, and ordered William to pay $65.00 every two weeks to Nanci for support.

William's petition for dissolution of marriage.

In the case at bar the Hendricks Circuit Court awarded the 1975 Matador automobile to William and gave a 1968 automobile, which was also in William's name, to Nanci. The parties were awarded whatever personal property they each possessed at the time of dissolution. William was ordered to pay $25.00 per week for child support, and to provide for the medical and insurance needs of the child.

At no time did the parties live in the state of Indiana after they were married.

ISSUES

The issues presented for our review are as follows:

(1) What are the requirements necessary to establish residency within the meaning of IC 1971, 31-1-11.5-6 (Burns Supp.1976), which is the Indiana residence provision of the Dissolution of Marriage Act, and did the husband sufficiently establish his residence as therein required?

(2) Did the Hendricks Circuit Court have the requisite jurisdiction to render a valid judgment and decree dissolving the marriage of the parties, affecting the incidents of custody, child support, visitation, and division of the marital property, which issues are incidental to a dissolution decree?

DISCUSSION AND DECISION

Issue One

IC 1971, 31-1-11.5-6 provides in part:

"(a) At the time of the filing of a petition pursuant to section 3(a) (subsection (a) of 31-1-11.5-3), at least one (1) of the parties shall have been a resident of the state or stationed at a United States military installation within the state for six (6) months immediately preceding the filing of each petition.

(b) At the time of the filing of a petition pursuant to section 3(a) (subsection (a) of 31-1-11.5-3), at least one (1) of the parties shall have been a resident of the county, or stationed at a United States military installation within the county, where the petition is filed for three (3) months immediately preceding the filing of the petition."

Nanci contends that neither she nor William were residents of Indiana at the time William's petition for dissolution of marriage was filed. Therefore, she contends, the residence and venue requirements of IC 31-1-11.5-6, supra, were not met, and the Hendricks Circuit Court did not have jurisdiction over the parties or their marriage.

Nanci is correct in her assertion that she and the child were not residents of Indiana after the parties separated, but she is incorrect in her assertion that William also was not a resident of Indiana. In Board of Medical Registration and Examination v. Turner (1960), 241 Ind. 73, 79-80, 168 N.E.2d 193, our Supreme Court defined residence as follows:

"It is the general rule in construing a statute which prescribes residence as a qualification for the enjoyment of a privilege, or the exercise of a franchise, that domicile and residence are deemed to be equivalent or synonymous, i. e., that the word residence is deemed to mean domicile. . . .

The term domicile in a strict legal sense has been defined as the place where a person has his true, fixed, permanent home and principal establishment, and to which place he has, whenever he is absent, the intention of returning. Ballentine Law Dictionary, p. 400. To acquire a domicile of choice, there must be an actual residence in a particular place together with an intention to remain there. A place cannot serve as a domicile merely by force of bodily presence there when it is unaccompanied by an intention to live there permanently, or at least indefinitely. 11 I.L.E., 'Domicile,' § 2, p. 3. As distinguished from domicile, residence may be any place of abode or dwelling regardless of how temporary . . ."

In the case at bar the trial court found that William was a resident of Indiana for the following reasons: He enlisted when he was a resident of Hendricks County, and he reenlisted when he was on duty in the Air Force, giving Hendricks County, Indiana as his home address; prior to entering the service he registered to vote and is still registered in Hendricks County; while in the service, he maintained his membership in the Catholic church in Hendricks County; and most importantly he expressed an intention to return to Hendricks County, Indiana to live, when his tour of active duty in the service was completed. Such evidence is sufficient to support a finding that William was a resident of Hendricks County when the petition for divorce was filed. ¹

William asserts that Nanci and the child were residents of Indiana, because, as he contends, the residence of the wife and child would follow that of the husband and father respectively. William is correct in asserting that the general rule in Indiana is that the residence of a family follows that of the father. ² However, the general rule is not without exception. Where by agreement or for justifiable reasons the parents of a child are living apart and have separate domiciles, the residence or domicile of the child would follow the residence of the parent with whom the child is living. ³ It is also the modern trend to allow the wife a choice in determining her domicile instead of making such determination solely by operation of law. ⁴ Therefore, we determine the Indiana rule to be that the domicile of the wife follows that of the husband, unless she, with the requisite physical presence and intent, chooses another domicile.

In the case at bar the child was living with Nanci after Nanci and William had separated. Therefore, the child's domicile was immediately after the separation and is now the same as Nanci's. Nanci became and is now a resident or domiciliary of Nebraska because she is physically present in Nebraska and has presently shown the intent to make Nebraska her home.

Therefore, only William qualified as a resident of Indiana for the purpose of giving Indiana courts jurisdiction to dissolve the marriage under IC 31-1-11.5-6, supra.

Issue Two

A dissolution of marriage proceeding has historically contained two principal elements: (1) the divorce, that is, the changing of the parties' status from married to unmarried, and (2) the adjudication of the incidences of marriage, that is, affecting a nonresident respondent's interest in property, providing for child support, visitation, etc. The divorce has always been denominated as an in rem proceeding in which a court has jurisdiction to change the marital status of the parties even when only one party to a marriage is a bona fide resident of the state in which that court is located. However, in adjudicating the incidences of a marriage, courts have been required to obtain in personam jurisdiction over both parties. ⁵

The recent U.S. Supreme Court case of Shaffer v. Heitner (1977), --- U.S. ----, 97 S.Ct. 2569, 53 L.Ed.2d 683, addresses itself to the interrelationship between in rem and in personam jurisdiction. As a result of the Shaffer, supra, decision the jurisdictional requirements for obtaining a dissolution of marriage have become unclear.

In Shaffer a shareholder's derivative suit was brought against a Delaware corporation and seven officers of that corporation, all of whom were nonresidents of Delaware, the Delaware court granted a motion for sequestration of certain Delaware property, which belonged to the nonresident defendant officers. The defendants in Shaffer, supra, entered an appearance contending that the ex parte sequestration orders did not afford them due process and that the ...