Walker v. Walker

• Decision Date: 07 April 1964
• Docket Number: No. 209,209
• Citation: 124 Vt. 172,200 A.2d 267
• Parties: Marjorie H. WALKER v. Lynn H. WALKER.
• Court: Vermont Supreme Court

Page 267

200 A.2d 267

124 Vt. 172

Marjorie H. WALKER v. Lynn H. WALKER.

No. 209.

Supreme Court of Vermont.

April 7, 1964.

Reargument Denied April 16, 1964.

Fitts & Olson, Brattleboro, for plaintiff.

Bloomer & Bloomer, Rutland, Frederick J. Fayette, Burlington, for defendant.

Before SHANGRAW, BARNEY, SMITH and SYLVESTER, JJ., and DALEY, Superior Judge.

BARNEY, Justice.

The libellee and former husband takes the position that his Nevada divorce bars a suit by the libellant, his former wife, for a Vermont divorce and alimony award. The trial court found the libellee's alleged Nevada domicile deficient and that divorce invalid. It then proceeded with the libellant's petition to alter her divorce from bed and board granted in 1956 to an absolute divorce. The divorce was granted and an order issued requiring payment of suit money by the libellee and a division of property between the parties.

The libellee's appeal is directed solely at the trial court's determination that his Nevada divorce was not entitled to full faith and credit when challenged by his wife in the jurisdiction of her domicile. This immediately narrows the case to the single issue of the vulnerability of the libellee's alleged domicile in Nevada for divorce purposes. It was on this issue that the lower court found the jurisdiction of the Nevada court defective.

It is settled constitutional law that the doctrine of full faith and credit does not bar relitigation of the issue of domicile as the jurisdictional basis of an ex parte divorce. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 1096, 89 L.Ed. 1577, 157 A.L.R. 1366. See Note, Divisible Divorce, 76 Harv.L.Rev. 1233, 1234-6 (1963).

The Nevada decree itself, an exhibit in the case, recites that its jurisdiction is based upon a finding that the libellee had acquired a Nevada domicile. It also shows the proceeding to have been ex parte, the libellant, defendant in that action, having been defaulted for want of appearance, she having been served outside Nevada. This overcomes the presumption of full jurisdiction of the parties that plagued the case of Cook v. Cook, 116 Vt. 374, 76 A.2d 593, reversed 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146, remand 117 Vt. 173, 86 A.2d 923. The lower court here could properly reach the question of Nevada domicile, In re Hanrahan's Will, 109 Vt. 108, 118, 194 A. 471.

That court disposed of the issue of Nevada domicile adversely to the libellee, by finding that the libellee went to Nevada for the sole purpose of getting an absolute divorce from the libellant. The court further found that, in accordance with plans made before the trip, the libellee was accompanied to Nevada by a Vermont woman in order that they might be married as soon as the libellee was divorced. According to the findings, the libellee arrived in Nevada January 14, 1960, filed for divorce on February 29, 1960, was granted an ex parte absolute decree on April 1, 1960, got married that same day, and within three days was on his way back to Vermont, where he has resided ever since. The court found that the libellee took up no employment or business interests in Nevada, but during the whole period relevant to this litigation continued to maintain his business and property interests in Vermont, including a hardware business in Manchester, Vermont, of which he is president and owner of sixty-six out of sixty-eight outstanding shares. He gave Manchester Depot, Vermont, as his residence on his 1959 United States income tax return. On the basis of these and other findings the trial court concluded that the libellee's affidavit and sworn testimony to the Nevada court that he intended to make Nevada his domicile was false and fraudulent, and that he never was a bona fide domiciliary of the State of Nevada.

The libellee, citing Morris v. Morris, 118 Vt. 270, 271, 108 A.2d 258 correctly points out that the burden is upon the libellant to overcome the presumption that the Nevada decree was jurisdictionally valid. The libellant procured the necessary finding to that effect in this case, but the libellee says there is no evidence to support such a finding. With respect to the question of Nevada domicile, the libellee says that, in particular, the finding that the libellee's only reason and purpose for going to Nevada was to get an absolute divorce from the libellant is not supported by the evidence. He correctly assesses this finding as negating a purpose to acquire a Nevada domicile. However, he accepts without challenge the findings relating to the libellee and his companion travelling to Nevada, marrying on the day of the divorce and returning to Vermont to reside there together.

Domicile is a concept which is important in many legal relations and, although it is a single doctrine, inevitably some of its definitive aspects show variations as its application differs. See 28 C.J.S. Domicile, § 1, p. 2, and cases cited. In divorce matters in this jurisdiction domicile is defined as a place where a person lives or has his home, to which, when absent, he intends to return, and from which he has no present purpose to depart. Tower v. Tower, 120 Vt. 213, 221, 138 A.2d 602. The two elements of domicile are residence and intention. In re Hanrahan's Will, supra, 109...