Nora v. Nora

• Decision Date: 18 July 1986
• Citation: 494 So.2d 16
• Parties: Clemon NORA, Sr., Arthur Maye Smith, Theaddus Nora, Vern C. Nora, Sr., Irene Holmes, Perry Manual, and Elma Lee Childs v. Archie NORA, Jr. 84-726.
• Court: Alabama Supreme Court

Page 16

494 So.2d 16

Clemon NORA, Sr., Arthur Maye Smith, Theaddus Nora, Vern C. Nora, Sr., Irene Holmes, Perry Manual, and Elma Lee Childs v. Archie NORA, Jr.

84-726.

Supreme Court of Alabama.

July 18, 1986.

Robert D. Segall and E. Terry Brown of Copeland, Franco, Screws & Gill, Montgomery, for appellants.

Michael J. Bonnette, Natchitoches, La., and Fred Gray, Tuskegee, for appellee.

ADAMS, Justice.

This is an estate case.

Archie R. Nora died intestate in Tuskegee, Alabama, in 1980. The administrator of the decedent's estate filed suit against the potential heirs of the decedent's estate in the Circuit Court of Macon County in 1981 to determine which of them was entitled to share in the distribution of the estate. The decedent's estate consisted of personal property located in Tuskegee, Alabama.

The appellee, Archie Nora, Jr., is the purported illegitimate child of the decedent and was named as a defendant in the administrator's suit. The parties to this appeal do not contest that Archie Nora, Jr., is the illegitimate child of the decedent; however, he has never been legitimated by a judicial filiation proceeding or by acknowledgment. The appellants are collateral relatives and potential heirs of the decedent who were also named as defendants in the administrator's suit.

Archie Nora, Jr., moved the court to apply Louisiana law to the case, arguing that the decedent's domicile at his death was the State of Louisiana. This issue was tried to the court and the following evidence was presented: The decedent was born in Louisiana and lived in that state until he entered the United States military during World War II. He was stationed in Texas. The decedent initiated a divorce proceeding while stationed in Texas and stated in that proceeding that he was a resident of Louisiana. Shortly thereafter, the decedent became mentally ill and was confined to a Veterans Administration Hospital in Iowa for treatment. Medical records reflected that decedent was diagnosed as suffering from dementia praecox, paranoid type. In 1944, the decedent was transferred to a Veterans Administration Hospital in Tuskegee, Alabama. The Veterans Administration declared the decedent incompetent and appointed a guardian to manage his veteran's benefits. The decedent remained at the Tuskegee hospital until 1964 or 1965, at which time he was placed in a Tuskegee foster home under the supervision of Robert and Georgia Turner. There was no indication that the decedent had recovered from his mental illness.

The Turners testified at trial that the decedent conversed with them and helped with household chores, went shopping with them, and attended church with them. However, the Turners could not say whether the decedent was sane during the time he lived with them. The Turners and a relative of the decedent testified that the decedent had stated that he did not wish to return to Louisiana except to visit.

Even though the decedent resided in Alabama, he never acquired an Alabama driver's license, never registered to vote, did not own real property, and never joined a church. He lived at the Turners' home until his death in 1980, and his body was transported to Louisiana, where it was buried.

Based upon this evidence, the trial court held that "the decedent was domiciled in the State of Louisiana at the time he became a member of the military service and never took any overt steps or unequivocally demonstrated any desire to acquire domicile at any other place." Therefore, the court concluded, Louisiana law was applicable in determining the distribution of the decedent's personal property.

In subsequent proceedings, the trial court held that Archie Nora, Jr., was the decedent's illegitimate child and that under Louisiana law, Archie Nora, Jr., inherited the decedent's property to the exclusion of all collateral relatives claiming a share of the estate. Thereafter, the appellants filed a motion for new trial, which was denied by the trial court. The appellants then made a timely appeal to this Court. Appellants argue that the trial court's determination that Louisiana was the decedent's domicile was erroneous.

In our resolution of the issue on appeal, we observe that the ore tenus rule is applicable to the trial court's holding. This is so because the trial court's determination of domicile was based on a factual determination regarding the decedent's intent to change his domicile. Since the ore tenus rule applies, the trial court's resolution of the factual issue is presumed to be correct and its findings will not be reversed on appeal unless plainly erroneous or manifestly unjust. Noland Co. v. Southern Development Co., 445 So.2d 266 (Ala.1984). Even if we disagree with the trial court's holding based upon the facts, we cannot substitute our judgment for that of the trial court. Storey v. Patterson, 437 So.2d 491 (Ala.1983).

After having carefully examined the record of the instant case, we are of the opinion that there is evidence to support the trial court's conclusion that the decedent's domicile was the State of Louisiana. The Court in Mitchell v. Kinney, 242 Ala. 196, 203, 5 So.2d 788, 793 (1942), made the following observations regarding domicile:

Domicile is defined as residence at a particular place accompanied by an intention to remain there permanently, or for an indefinite length of time. Ringgold v. Barley, 5 Md. 186, 59 Am.Dec. 107; Merrill's Heirs v. Morrissett, 76 Ala. 433; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Holmes v. Holmes, 212 Ala. 597, 103 So. 884; Pope v. Howle, 227 Ala. 154, 149 So. 222; Ex parte Bullen, 236 Ala. 56, 181 So. 498; Ex parte State ex rel. Altman, 237 Ala. 642, 188 So. 685.

Domicile continues until a new one is acquired. Ex parte Bullen, supra; Talmadge's Adm'r v. Talmadge, 66 Ala 199; State ex rel. Spence v. Judge, etc., 13 Ala. 805.

Change of domicile consists of an act and an intention, physical presence in the new domicile and the requisite intent to remain there for an indefinite length of time. The fact that a person lives at a particular place creates a prima facie presumption that such place is his domicile. The presumption is rebuttable by facts to the contrary. In re Toner, 39 Ala. 454; Hightower v. Ogletree, 114 Ala. 94, 21 So. 934; Lucky v. Roberts, 211 Ala. 578, 100 So. 878. In...