Martin v. Martin

• Decision Date: 20 January 1961
• Docket Number: No. 608,608
• Citation: 118 S.E.2d 29,253 N.C. 704
• Parties: Raymond L. MARTIN v. Beryl Helen MARTIN.
• Court: North Carolina Supreme Court

Page 29

118 S.E.2d 29

253 N.C. 704

Raymond L. MARTIN v. Beryl Helen MARTIN.

No. 608

Supreme Court of North Carolina.

Jan. 20, 1961

Butler, High & Baer, Fayetteville, for plaintiff.

Tally, Tally & Taylor, and Jesse M. Henley, Jr., Fayetteville, for defendant.

MOORE, Justice.

Plaintiff alleges that he 'has been a resident of Cumberland County, State of North Carolina, for more than six months next preceding the bringing of this action * * and has resided on the Fort Bragg Military Reservation in Cumberland County, North Carolina, for more than six months next preceding the commencement of this action.' Answering, defendant avers that 'plaintiff does not intend to make North Carolina his permanent home nor his home for an indefinite period of time and he is therefore not a resident of North Carolina.'

Jurisdiction in divorce actions is conferred by statute. The requirement that one of the parties to a divorce action shall have resided in the State for a specified period of time next preceding the commencement of the action is jurisdictional. If the element of residence is lacking the court has no jurisdiction to try the action or grant a divorce. Henderson v. Henderson, 232 N.C. 1, 9, 59 S.E.2d 227; Ellis v. Ellis, 190 N.C. 418, 421, 130 S.E. 7.

In an action for divorce 'The plaintiff shall set forth in his or her complaint that the complainant or defendant has been a resident of the State of North Carolina for at least six months next preceding the filing of the complaint * * *.' G.S. § 50-8.

This Court has declared that: 'In order to constitute residence as a jurisdictional fact to render a divorce decree valid under the laws of this State there must not only be physical presence at some place in the state but also the intention to make such locality a permanent abiding place. There must be both residence and animus manendi. Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R. 284; Roanoke Rapids v. Patterson, 184 N.C. 135, 137, 113 S.E. 603; State v. Williams, 224 N.C. 183, 191, 29 S.E.2d 744. To establish a domicile there must be residence, and the intention to make it a home or to live there permanently or indefinitely. State v. Williams, supra.' Bryant v. Bryant, 1947, 228 N.C. 287, 289, 45 S.E.2d 572, 574.

The holding in the Bryant case is in accord with the decisions of the Supreme Court of the United States. In Williams v. State of North Carolina, 1945, 325 U.S. 226, 229, 65 S.Ct. 1092, 1095, 89 L.Ed. 1577, it is said: 'Under our system of law, judicial power to grant a divorce--jurisdiction, strictly speaking--is founded on domicil. Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804; Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366. The framers of the Constitution were familiar with this jurisdictional prerequisite, and since 1789 neither this Court nor any other court in the English-speaking world has questioned it. Domicil implies a nexus between persons and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. The domicil of one spouse within a State gives power to that State, we have held, to dissolve a marriage wheresoever contracted.'

'In a strict legal sense that place is properly the domicil of a person where he has his true, fixed, permanent home and principal establishment, and to which he has, whenever he is absent, the intention of returning, and from which he has no present intention of moving.' 17A Am.Jur., Domicil, § 2, pp. 194-5.

In 1959 the General Assembly of North Carolina passed an Act which provides that in a divorce action 'allegation and proof that the plaintiff or the defendant has resided or been stationed at a United States army, navy, marine corps, coast guard or air force installation or reservation or any other location pursuant to military duty within this State for a period of six months next preceding the institution of the action shall constitute compliance with the residence requirements' for divorce, 'provided that personal service is had upon the defendant or service is accepted by the defendant, within or without the State as by law provided.' G.S. § 50-18.

Defendant contends that the residence requirement in G.S. § 50-18 involves domicile, and that the jurisdictional requisite that there be physical presence plus animus manendi has not been changed by this statute. With this contention we agree. Furthermore, we do not understand that plaintiff seriously contends otherwise.

The Legislative Assembly of the Virgin Islands adopted a statute providing that mere presence of plaintiff in the district for a period of six weeks shall be prima facie evidence of domicile and where the defendant has been personally served within the district or enters a general appearance the court shall have jurisdiction of the divorce action without further reference to domicile. The United States Court of Appeals, Third Circuit, in passing upon the validity of the statute, said in Alton v. Alton, 1953, 207 F.2d 667:

'The requirements for effecting a change of domicile by a person having legal capacity are clear and undisputed. There must be physical presence in the place where domicile is claimed and there must be the intent to make that place the home of the person whose domicile is in question.' at page 671.

'If domicile is really the basis for a divorce jurisdiction * * * then six weeks' physical presence without more is not a reasonable way to prove it.' at page 672.

'The presumption must, therefore, be regarded as either an unreasonable interference by the legislative branch of the insular government with the exercise of the judicial power by the judicial branch or as an attempt by the legislature to convert the suit for divorce into what is in fact a transitory action masquerading under a fiction of domiciliary jurisdiction. We think that looked at in any of these ways the portion of the statute which provides for such a prima facie conclusion is invalid.' at page 673.

'We think that adherence to the domiciliary requirement is necessary if our states are really to have control over the domestic relations of their citizens.' at page 676.

'Our conclusion is that the second part of this statute conflicts with the due process clause of the Fifth Amendment and the Organic Act. Domestic relations are a matter of concern to the state where a person is domiciled. An attempt by another jurisdiction to affect the relation of a foreign domiciliary is unconstitutional even though both parties are in court and neither one raises the question.' at page 677.

Jennings v. Jennings, 1948, 251 Ala. 73, 36 So.2d 236, 237, 3 A.L.R.2d 662, deals with an Alabama statute which provides in substance that the courts of that State shall have jurisdiction of divorce actions wherein both parties are before the court even though both reside in another State. In declaring the statute invalid the Court declared:

'Jurisdiction, which is the judicial power to grant a divorce, is founded on domicile under our system of law. (Citing authorities) This is true because domicile in the state gives the court jurisdiction of the marital status or the res which the court must have before it in order to act. (Citing authorities) The domicile of one spouse, however, within the state gives power to that state to dissolve the marriage. (Citing authorities) * * * Jurisdiction of the res is essential because the object of a divorce action is to sever the bonds of matrimony, and unless the marital status is before the court, the court cannot act on that status. * * * Furthermore, it is recognized that unless one of the parties has a residence or domicile within the state, the parties cannot even by consent confer jurisdiction on the courts of that state to grant a divorce. 17 Am.Jur. p. 273.

''* * * The principle dominating the subject is that the marriage relation is so interwoven with public policy that the consent of the parties is impotent to dissolve it contrary to the law of the domicil. * * *' Andrews v. Andrews, supra (188 U.S. 14, 23 S.Ct. 244, ). * * * the legislature of a state cannot confer on the courts of that state a power which is not within the...