Wilke v. Wilke

• Decision Date: 07 January 1980
• Citation: Wilke v. Wilke, 423 N.Y.S.2d 249, 73 A.D.2d 915 (N.Y. App. Div. 1980)
• Parties: Douglas A. WILKE, Respondent, v. Alice D. WILKE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 249

423 N.Y.S.2d 249

73 A.D.2d 915

Douglas A. WILKE, Respondent, v. Alice D. WILKE, Appellant.

Supreme Court, Appellate Division, Second Department.

Jan. 7, 1980.

Kathleen A. Carlsson, Sayville, for appellant.

Colleran, O'Hara & Kennedy, P. C., Garden City, N. Y. (Alan J. Reardon, Garden City, of counsel; Eric Hellige, Garden City, on brief), for respondent.

Before LAZER, J. P., and GULOTTA, COHALAN and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

In an action in which the plaintiff husband was granted a separation, defendant wife appeals from an order of the Supreme Court, Nassau County, dated September 11, 1978, which denied her motion to modify the judgment of separation by striking the second decretal paragraph thereof which awarded custody of the parties' minor child to the plaintiff.

Order reversed, on the law and the facts, and defendant's motion is granted, with $50 costs and disbursements.

On May 16, 1977 a judgment was entered granting the plaintiff a separation on the ground of abandonment and giving him custody of the parties' minor child. The judgment was entered following a hearing on the undefended calendar, the defendant having been served only by certified mail and not having answered the complaint.

On January 20, 1977, prior to the certified mail service, defendant had left the marital home, taking the child and her possessions to Kansas, where she resided for approximately 15 months before leaving for California, her present domicile. While in Kansas, she instituted a divorce proceeding against her husband, which resulted in a decree of divorce and a custody determination in her favor. That decree was granted on November 15, 1977, some six months after the New York judgment awarding custody to the plaintiff was entered. Defendant then brought the instant motion to strike the decretal paragraph of the New York judgment giving plaintiff custody of the child, on the ground that service by certified mail alone was insufficient to confer jurisdiction on someone who was no longer a domiciliary of the State of New York. Plaintiff countered by raising two arguments, to wit: (1) during the time that defendant was in Kansas she had remained a domiciliary of New York, never having had the requisite intent to make Kansas her new domicile, and (2) that article 5-A of the Domestic Relations Law, otherwise known as the Uniform Child Custody Jurisdiction Act, should be applied retroactively to the facts at bar, thus giving the New York Supreme Court jurisdiction under section 75-d of the new act.

Under the facts as presented, we cannot agree that the defendant retained her New York domicile, nor can we concur with the plaintiff's second argument. Accordingly, we reverse.

Plaintiff's first point, that defendant maintained her New York domicile during the time she resided in Kansas, so that the certified mail service upon her was sufficient to confer jurisdiction, is belied by the facts.

The issue of domicile is necessarily a question of fact. (See Matter of Ruiz v. Lavine, 49 A.D.2d 1, 370 N.Y.S.2d 710; Ruderman v. Ruderman, 193 Misc. 85, 82 N.Y.S.2d 479, affd. 275 App.Div. 834, 89 N.Y.S.2d 894.) Therefore, we must consider the jurisdictional facts of the present case and weigh them against the balancing considerations in order to determine the domicile of the defendant.

In her affidavit, the defendant stated that she had been domiciled in Kansas from January 25, 1977 through May 15, 1978, when she moved to California. She stated that she left New York with no intention of ever returning on a permanent basis and with the intention of making Kansas her permanent home. Her primary reason for going to Kansas was a valuable employment opportunity which was not available in the New York area. Likewise, her subsequent move to California was for the purpose of advancing her career. While in Kansas she leased an apartment, voted in a Kansas election and registered her vehicle there. Lastly, she noted that her child enrolled in and attended school in Kansas.

Plaintiff, on the other hand, claimed that the defendant's only reason for moving to Kansas was to obtain a favorable divorce and custody arrangement. In support of this he noted that in 1975 the defendant left home for Oregon, hoping to find similar relief. However, she returned to New York after that excursion. Plaintiff bolstered his argument that defendant only went to Kansas for the purpose of securing a divorce with the claim that she committed a fraud on the Kansas court when she stated in her petition for divorce dated February 17, 1977 that she had been a resident of Kansas in excess of 60 days. (The petition was later amended to conform with the proof.) Lastly, it should be noted that the defendant did leave Kansas for California within three months of securing her divorce from the plaintiff.

The burden of proving a change in domicile is on the party asserting the change here, the defendant. (See Ruderman v. Ruderman, 193 Misc. 85, 82 N.Y.S.2d 479, affd. 275 App.Div. 834, 89 N.Y.S.2d 894, Supra.) The standard of proof in such cases is that the evidence establishing such a change must be clear and convincing (Ruderman v. Ruderman, supra, p. 87, 82 N.Y.S.2d p. 481.). Looking at the evidence as a whole, however, we must conclude that the defendant did sustain her burden in this case. While so-called "formal declarations" of domicile such as voter registration or motor vehicle registration have lost their importance in recent years as courts have recognized their self-serving nature, the "informal declarations" and acts of the person have been given greater recognition in resolving the question of domicile. (See Restatement, Conflicts 2d, § 20, "Special Note on Evidence for Establishment of a Domicil of Choice", pp. 81-83; Matter of Bourne, 181 Misc. 238, 41 N.Y.S.2d 336, affd. 267 App.Div. 876, 47 N.Y.S.2d 134, affd. 293 N.Y. 785, 58...