Opinion
No. 35246.
March 15, 1943.
1. DIVORCE.
To constitute complainant an actual bona fide "resident" within the state for one year next preceding commencement of divorce suit, there must be an actual residence voluntarily established within the state with bona fide intention of remaining there, if not permanently, at least indefinitely (Code 1930, sec. 1415).
2. DIVORCE.
Though complainant's own testimony as to intention is relevant in determining residence, such an assertion of intention is not sufficient in itself to establish "residence" within the state necessary to maintenance of divorce suit (Code 1930, sec. 1415).
3. DIVORCE.
The intent necessary to establish such "residence" within the state as will give court jurisdiction of divorce suit is the intent that an established residence shall be reasonably permanent, and mere intention to establish a residence at some time in the future is not sufficient (Code 1930, sec. 1415).
4. DIVORCE.
Complainant's testimony that he determined that after release from military service he would return to a certain town in same county as camp to which he had been sent from another state and remain there permanently was insufficient to establish such bona fide "residence" within the state as would give chancery court for the county, jurisdiction of suit for divorce from wife who still resides in state from which complainant had come (Code 1930, sec. 1415).
5. DOMICILE.
A "domicile" voluntarily established can be changed only by the voluntary acquisition of a new domicile, and mere intent to acquire a domicile is inchoate, and becomes effective only when there is a voluntary act to which it may give color.
APPEAL from chancery court of Forrest county, HON. BEN STEVENS, Chancellor.
E.J. Currie, of Hattiesburg, for appellant.
The sole question for decision is, we think, whether the facts disclosed by the testimony and evidence in this cause show that the appellant and complainant, H.H. Smith, had been a bona fide resident within the State of Mississippi for at least one year next preceding the date of the filing of his bill of complaint herein.
Code of 1930, Sec. 1415.
There was and is no intimation that the complainant acquired a residence in this state with a purpose of securing a divorce.
We think that a person's bona fide intention will determine his place of citizenship or place of residence, and that his declaration of such intention will control, unless his conduct negatives or rebuts such expressed intention. It is not necessary for a person to be a qualified elector or a property owner in order for such person to be a bona fide actual resident of Mississippi.
Alston v. Newcomer, 42 Miss. 186; Carr-Lowry Lumber Co. v. Martin, 144 Miss. 106, 109 So. 849.
Assuredly, from November, 1940, to February 3, 1942, the appellant was a citizen and resident of either the State of Ohio or of the State of Mississippi. He swore that he had elected in November, 1940, and continuously thereafter, up to the date of his trial in March, 1942, to make Mississippi his place of residence and citizenship. Such proof is undisputed, and the chancellor expressly found that the appellant testified truthfully.
We therefore respectfully submit that the lower court had jurisdiction of the appellant's suit, and that he should have been granted the relief sought, and that he should be granted the appropriate relief in this court.
Appellee not represented in this court.
Appellant filed suit for divorce, and the allegations of his bill were held to have been supported by the proof and a sufficient basis for decree. Relief was denied, however, upon jurisdictional grounds; the chancellor having found that the complainant had not been "an actual bona fide resident within this state for one year next preceding the commencement of the suit." Code 1930, sec. 1415. This is the sole ground of the appeal.
The parties were married in Ohio, and the defendant resided there at the time the bill was filed. Complainant was a member of the National Guard of that state, and as such was inducted into the Army of the United States, and sent to Camp Shelby, Mississippi, near the city of Hattiesburg. Suit was filed in Forrest County, which embraces both localities.
Complainant testifies that shortly after arriving at Camp Shelby he made certain contacts from which he concluded that "it was a fine place to stay." His original term of service was twelve months, and he testified that it was his purpose when he was released from this service to "get employment and reside here permanently." He answered affirmatively the leading question, "You made up your mind that should you survive the war that you would return to Hattiesburg and it is your intention now?" In the meantime he was ordered to duty some 1,100 miles distant, from which point he returned for the trial of the cause. Upon leaving under these orders he left some personal effects in Hattiesburg.
To constitute complainant an actual bona fide resident of Forrest County there must have been, (1) an actual residence voluntarily established in said county, (2) with the bona fide intention of remaining there, if not permanently, at least indefinitely. While complainant's own testimony as to his intention is relevant, the unwisdom of accepting as sufficient a mere assertion thereof is recognized in the requirement that it be competent only when it is employed as an incident, albeit a necessary incident, to give meaning to the act of setting up residence.
A mere intention to establish a residence at some time in the future is not sufficient. The intent necessary is the intent that an established residence shall be reasonably permanent. The intent must be to make a home at the moment and not in the future. Rest. Conflict of Laws, Sec. 20. Complainant's residence in that county was not voluntarily founded by him, but under the compulsion of military orders. In the meantime he is not free to remain in Hattiesburg, and in fact had been stationed elsewhere for some time preceding the hearing. He did not select this place of residence even though it is his intention so to do at some future date when a freedom of choice is accorded him at the completion of his military service. Harris v. Harris, 205 Iowa, 108, 215 N.W. 661; Lowe v. Lowe, 150 Md. 592, 133 A. 729, 46 A.L.R. 983; Pendleton v. Pendleton, 109 Kan. 600, 201 P. 62; Gallagher v. Gallagher (Tex. Civ. App.), 214 S.W. 516; Dicks v. Dicks, 177 Ga. 379, 170 S.E. 245; 17 Am. Jur. Divorce Separation, Sec. 263, p. 287; 27 C.J.S., Divorce, sec. 76, p. 648; Nelson, Divorce and Separation, Secs. 42, 43.
A domicile voluntarily established can be changed only by the voluntary acquisition of a new one. A mere intent is inchoate, and becomes effective only when there is a voluntary act to which it may give color. The inconveniences attendant upon adherence to this principle is an evil lesser by far than those which would be begotten by establishing jurisdiction by what is proposed, rather than by what is done. Lowe v. Lowe, supra.
Affirmed.