Wiseman v. Wiseman

• Decision Date: 07 September 1965
• Parties: , 216 Tenn. 702 Hazel Rogers WISEMAN, v. Louis Andrew WISEMAN.
• Court: Tennessee Supreme Court

Page 892

393 S.W.2d 892

20 McCanless 702, 216 Tenn. 702

Hazel Rogers WISEMAN, v. Louis Andrew WISEMAN.

Supreme Court of Tennessee.

Sept 7, 1965.

W. G. McDonough, McMinnville, for appellant.

Haston & Haston, McMinnville, for appellee.

BURNETT, Chief Justice.

This appeal has its origin in a divorce action instituted by complainant-appellant Hazel Rogers Wiseman against defendant-appellee, Louis Andrew Wiseman.

The bill, filed in the Circuit Court of Warren County, Tennessee, prayed for a divorce, custody of the children, support, certain personal property mentioned in the bill, and injunctive relief.

To this bill the defendant filed a plea in abatement directed to the jurisdiction of the Court to grant the relief prayed for in the bill. The trial court sustained this plea and dismissed the complainant's bill. Complainant then filed a motion for a new trial challenging the court's action in sustaining the plea and was overruled.

Whether or not the trial judge was in error in sustaining the plea in abatement and dismissing the bill is the question now before this Court. The facts are stipulated and the matter resolves itself into a single legal question: whether or not this action can be maintained under the facts and circumstances of this case as they appear in the record.

In the view which this Court takes of this appeal, the following are the pertinent facts:

(1) The defendant is now and has continuously been in the United States Air Force since his induction in July of 1948. Prior to this time he was a resident of Warren County, Tennessee, living in that county at the home of his parents. During the defendant's military career he has had some ten or more duty assignments encompassing a geographic span from Okinawa to England abroad and from California to Washington, D. C., in the United States, and is presently stationed at Columbus Air Force Base in Mississippi. The record does not show that the defendant has ever purchased property or registered to vote in the locale of any of his various duty assignments. The record does show, however, that the defendant has made statements to the effect that he was a Tennessee resident during his tour of duty in Mississippi. The defendant was personally served with process pursuant to this action while on leave from his military assignment in Mississippi in Warren County, Tennessee.

(2) The complainant was a resident of Warren County, Tennessee, prior to her marriage to the defendant in December, 1948. Since her marriage to the defendant she has accompanied her husband to his various duty stations, returning to Warren County, Tennessee, whenever familial pleasure, convenience or necessity dictated. Since 1960 she has been in Mississippi with her husband except during his leaves, all of which have been spent in Tennessee. The grounds for divorce alleged by complainant arose outside the State of Tennessee.

(3) The children of this marriage and the property mentioned in the bill were in Mississippi at the time the suit was filed.

(4) There is in effect an order issuing from the Chancery Court of Lowdes County, Mississippi, the subject of which being the custody and care of the children, the parties having been separated since August of 1963.

It is the opinion of this Court that the trial court was in error in dismissing the bill of the complainant for want of jurisdiction over the subject matter.

The general rule is that if either or both of the parties is a domiciliary of a state, then there exists a sufficient relationship between the state and the marital status to make it reasonable for the state to affect the marital status. See 27A C.J.S. Divorce § 71, page 246.

In Tyborowski v. Tyborowski, 28 Tenn.App. 583, 192 S.W.2d 231, the Tennessee jurisdictional standard is clearly stated:

'To give jurisdiction to the courts of this State in actions for divorce, one or both the parties must be domiciled in the State.'

[See also Gettys v. Gettys, 71 Tenn. 260, Brown v. Brown, 155 Tenn. 530, 296 S.W. 356.]

"Domicile' is defined as the place 'where a person has his principal home and place of enjoyment of his fortunes; which he does not expect to leave, except for a purpose; from which when absent, he seems to himself a wayfarer; to which when he returns, he ceases to travel." Snodgrass v. Snodgrass, 49 Tenn.App. 609, 611, 357 S.W.2d 829, 831; Tyborowski v. Tyborowski, supra; White v. White, 40 Tenn. 404.

The reason that courts of a state have a valid basis of power to affect a marital res if one of the parties is domiciled in the state is that there exists a sufficient relationship or contact between the state and the marriage such that it is reasonable for the state to affect the marital res; the state having a valid interest in the domestic status of its domiciliaries. This proposition is eloquently stated by Mr. Justice Frankfurter:

'Domicil implies a nexus between person 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.' Williams v. State of North Carolina (II) 325 U.S. 226, 65 S.Ct. 1097, 89 L.Ed. 1577.

The predominant issue on this appeal is whether such a nexus exists between these parties and the State of Tennessee.

There is no question but that the defendant was, previous to the time he was inducted into military service in 1948, a domiciliary of Warren County, Tennessee. He lived in that county with his parents; there was his domicile of origin. Since 1948, he has moved from place to place pursuant to orders from the United States Air Force. The rule as pertains to such situations is generally stated in Sturdavant v. Sturdavant, 28 Tenn.App. 273, 189 S.W.2d 410:

"The domicile of a soldier or a sailor in the military or naval service of his country generally remains unchanged, domicile being neither gained nor lost by being temporarily stationed in the line of duty at a particular place, even for a period of years, and even though he establishes his family where he is stationed." (Emphasis added.)

[See also 17 Am.Jur., § 297, p. 460.]

As stated previously, the domicile of origin of this defendant was in Warren County, Tennessee. There is a presumption that everyone retains this domicile until a new one is acquired. Sparks v. Sparks, 114 Tenn. 666, 88 S.W. 173; Layne v. Pardee, 32 Tenn. 232, 235. The presumption is therefore that the defendant has retained his domicile of origin in Warren County. This presumption, however, is not conclusive and may be overcome as stated in Tyborowski v. Tyborowski, supra:

'A solidier can abandon his domicile of origin and select another, yet, in order to show a new domicile during the term of enlistment, there must be the clearest and most unequivocal proof.'

In determining whether or not a change of domicile has been made, it is proper to consider the conduct and declarations of the party whose domicile is in question, and all other facts that throw light on the subject. Sparks v. Sparks, supra.

Since the reason for the defendant's absence from Tennessee has been his being stationed in other locales under military orders, there is no proof in the record to rebut the presumption that the defendant has retained his domicile of origin in Warren County, Tennessee. Rather than being rebutted, the presumption is fortified by his frequent returns to this State on his leaves and his own sworn statement that he was a 'resident of the State of Tennessee.' This sworn statement was made in an answer in the separate maintenance proceedings between these parties in Mississippi. This Court does not view this statement as res judicata that the defendant was a Tennessee resident, since that particular suit was dismissed on a different ground, but as some evidence tending to show that the defendant still looked on Tennessee as his permanent home, his domicile.

Under the facts and circumstances before this Court we find that the defendant's domicile is in Tennessee.

Standing alone, the fact that the defendant is a comiciliary of this State will not support the finding of jurisdiction over the subject matter in the Circuit Court of Warren County in this particular case. Since the complainant bases her action for divorce on grounds which arose outside the State of Tennessee, she must comply with T.C.A. § 36-803, the jurisdictional prerequisite to the maintenance of this type of action. This statute reads:

'A divorce may be granted for any of the aforesaid causes, though the acts were committed out of the state, or the petitioner resided out of the state at the time, no matter where the other party resides, if the petitioner has resided in this state one (1) year next preceding the filing of the bill or petition.'

The defendant contends that the proper intepretation of this statute requires that the petitioner be actually corporally present in this State for one year immediately preceding the filing of the bill, and that since his wife was physically present in Mississippi during the one year preceding the filing of her bill, she had not complied with the statute. This...