Zimmerman v. Zimmerman

• Decision Date: 16 January 1945
• Citation: 175 Or. 585,155 P.2d 293
• Parties: ZIMMERMAN <I>v.</I> ZIMMERMAN
• Court: Oregon Supreme Court

175 Or. 585

155 P.2d 293

ZIMMERMAN

v. ZIMMERMAN

Supreme Court of Oregon.

Argued December 5, 1944.

Affirmed January 16, 1945.

Divorce

1. The words "resident" and "inhabitant", as used in statute requiring plaintiff to be an inhabitant of state at commencement of divorce suit and for one year prior thereto, and providing that such residence should be sufficient to give court jurisdiction, are used interchangeably.

Domicile

2. At common law, "residence" indicates merely a factual place of abode and is not synonymous with "domicile".

Divorce

3. Where neither party is domiciled within state, no divorce can validly be granted.

Divorce

4. The words "resident" and "inhabitant", as used in statute requiring plaintiff in divorce suit to be an inhabitant of state at commencement of suit and for one year prior thereto, should be construed to mean "domicile".

Domicile

5. Every person has at all times one domicile, and no person has more than one domicile at a time.

Domicile

6. Except in certain instances, when a person has one home and only one home, his domicile is the place where his home is.

Domicile

7. A "home" is a dwelling place of a person, distinguished from other dwelling places of that person by intimacy of the relation between person and the place.

Domicile

8. In determining whether a dwelling place is a person's "home", consideration should be given to its physical characteristics, time he spends therein, things he does therein, persons and things therein, his mental attitude toward the place, his intention when absent to return to the place, and elements of other dwelling places of the person concerned.

Domicile

9. A "domicile of choice" is the domicile acquired, through exercise of one's own will, by person who is legally capable of changing his domicile.

Domicile

10. To acquire a "domicile of choice" a person must establish a dwelling place with intention of making it his home.

Domicile

11. The fact of physical presence at a dwelling place and the intention to make it a home must concur, and, if they do so, even for a moment, the change of domicile takes place.

Domicile

12. To acquire a "domicile of choice" in a place, a person must be physically present there, but a home in a particular building is not necessary for acquisition of a domicile.

Domicile

13. A person cannot change his domicile by removal to a new dwelling place without intention to make the new dwelling place his home.

Domicile

14. The intention required for acquisition of a "domicile of choice" is an intention to make a home in fact, and not intention to acquire a domicile.

Domicile

15. For acquisition of a "domicile of choice" the intention to make a home must be an intention to make a home at the moment, not to make a home in the future.

Domicile

16. A person cannot acquire a "domicile of choice" by any act done under legal or physical compulsion.

Domicile

17. Soldier or sailor, if he is ordered to a station to which he must go and live in quarters assigned to him, cannot acquire a domicile there though he lives in assigned quarters with his family; but if he is allowed to live with his family where he pleases, provided it is near enough to his post to enable him to perform his duties, he can acquire a domicile where he lives.

Domicile

18. The constitutional provision that no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in service of United States is declaratory of the common law and, notwithstanding the constitutional provision, it is still open to a soldier to establish domicile if court finds requisite qualifications elsewhere.

Domicile

19. Under constitutional provision that no soldier shall be deemed to have acquired a residence in state in consequence of

having been stationed within the state, mere fact of having been stationed in state would not permit court to deem that a soldier had acquired domiciliary rights; but if soldier was permitted to, and in fact did, establish a home in state, outside of a military reservation, with requisite animus manendi, he might be deemed to be a resident.

Domicile

20. The word "deemed", as used in constitutional provision that no person shall be deemed to have gained or lost a residence by his presence or absence while employed in service of United States, and in constitutional provision that no soldier shall be deemed to have acquired a residence in the state in consequence of having been stationed within state, should be construed as creating only a disputable, and not a conclusive, presumption.

Domicile

21. The constitutional provision that no soldier shall be deemed to have acquired a residence in state in consequence of having been stationed within state does not prevent acquisition of a domicile by a soldier under rules of common law.

Divorce

22. In divorce action, plaintiff's testimony that he was, in fact, living in and had been a resident of state for more than year, was sufficient to raise prima facie case of domicile; but testimony that plaintiff was in armed forces of the United States, had been drafted in Ohio and sent by military authority to a permanent station in Oregon, was sufficient to overcome the prima facie case.

Domicile

23. Mere fact of living in a state at a station therein under military compulsion does not satisfy factual requirements for a "domicile of choice", even if the animus manendi be shown.

Divorce

24. Evidence that plaintiff was originally domiciled in Ohio where he was drafted into armed service of the United States, and that he was thereafter sent to naval station in Oregon under government orders where he had been stationed for more than a year, was insufficient to disclose jurisdictional fact of domicile in Oregon, so as to authorize bringing of divorce action, in absence of showing that plaintiff had taken up an abode away from his station or had been permitted by military authorities to choose or establish such abode.

                  Distinction between "residence" and "domicile," note, 26 A.L.R
                188. See, also, 17 Am. Jur. 593
                  27 C.J.S., Divorce, § 71
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

WALTER L. TOOZE, Judge.

Suit by Richard H. Zimmerman for divorce. From a decree dismissing complaint on ground that plaintiff had not established requisite residence in state, the plaintiff appeals.

AFFIRMED.

Nels Peterson, of Portland (Green & Landye, L.A. Recken, Harvey Benson, and Francis Krause, all of Portland, on the brief), for appellant.

Nadine B. Shaw, Deputy District Attorney, of Portland (James R. Bain, District Attorney, of Portland, on the brief), for respondent.

BRAND, J.

Suit by Richard H. Zimmerman against Betty Jane Zimmerman for divorce. From a decree dismissing the complaint on the ground that the plaintiff, a member of the armed forces of the United States, had not established the requisite residence in the state of Oregon, the plaintiff appeals.

On July 5, 1944, the plaintiff filed in the circuit court for Multnomah county, Oregon, a complaint in the usual form, seeking a divorce on the ground of desertion alleged to have occurred in June, 1943. After service upon her, the defendant was adjudged in default for want of appearance. However, at the trial the State of Oregon appeared and contested the suit on the ground that plaintiff, who was in the military service of the United States, had failed to establish residence within the state of Oregon for the statutory period of one year. O.C.L.A. § 9-910.

From the testimony of the plaintiff, it appears that the parties were intermarried on December 27, 1941, at Washington Court House, Ohio. The plaintiff testified in general terms that he has been a continuous resident of the state of Oregon for more than one year immediately prior to the filing of the complaint, and now is such a resident. He lived in Oregon in the years 1938 and 1939, "and went home in '40." At the time he lived here, it was his intention to make Portland his home. He has never abandoned that intention. However, he returned to Washington Court House, Ohio, and was living there when drafted into the armed forces of the United States. He testified that he was not a resident of the state of Oregon when he entered military service. During parts of 1940 and 1941 he was living in Washington Court House, Ohio, where he married the defendant and remained until drafted into the service. Four months after he entered the service he was sent to Oregon and is stationed at Swan Island, a "permanent station," in Portland, Oregon.

He testified, in substance, that at all times since he was stationed in Oregon he has been able and willing to maintain a home for himself and wife and intended to do so. At the time of the alleged desertion in May, 1943, plaintiff was living in Portland and was in the military service. The desertion consists in the refusal of the defendant to come to and live with the plaintiff. The defendant has never left Ohio since the marriage.

The foregoing constitutes all of the evidence relative to the question in issue. The trial court, relying upon provisions of the Oregon constitution and a decision in 3rd Oregon, held that "no member of the armed forces can, while a member * * * establish a domicile in the State of Oregon * * *."

BRAND, J.

We will consider, in order, the jurisdictional requirements for divorce, the established rules of the common law relative to domicile, the bearing of those rules upon suits for divorce and their particular application in the case of persons in military service. We will then consider the effect of Sections 4 and 5 of Article II of the Oregon Constitution and apply the ascertained rules to the facts of the pending case.

The statute provides:

"In a suit for the dissolution of the marriage contract, the plaintiff therein must be an inhabitant of the state at the...