Munsee v. Munsee ( 1961 )

CROCKETT, Justice

(concurring specially) .

It seems to me that the term “actual and bona fide” as applied to the residence for the purpose of divorce under our statute need not be so inscrutable or mysterious if we set aside legal niceties and think in terms of the ordinary and usual understanding of the words as they would be used by our legislature. I say this in an awareness of the multifarious interpretations and applications of the words “residence” and “domicile” given by the courts under varying statutes, purposes and fact situations. See 37 Words & Phrases, p. 317 et seq.

Undoubtedly the phrase was intended to mean one’s real residence,¹ as distinguished from a false, pretended or pseudo residence such as is sometimes adopted by divorce seekers in an effort to avoid unpleasant publicity on the home grounds; or to obtain other advantages such as making it difficult for the defendant to appear, or to effectively defend; or where it is thought that a more favorable judgment may be had in regard to property rights, alimony or children.

It is plainly apparent that our statutes in requiring residence for a divorce to be “actual and bona fide,” means something more than mere residence as sometimes understood.² It would seem to mean “residence” with the intent that it be one’s home or domicile.³ But even under that restrictive requirement, everyone should be entitled to have such a residence somewhere. This is so however frail or unsubstantial what one considers his residence may be; and it is likewise so even though he may not be able to be constantly present physically at that place. E. g., a soldier, sailor, or a person in foreign service, though required to be afar, may have an actual and bona fide residence for such purpose at the place he so intends and regards as his home, if the facts so constituting residence exist.

It is evident that it is because the matter of one’s intention is so subjective and changeable that our statutes require the residence to be both actual and bona fide. It is essential that one have not only the intent but there must be some physical manifestation of it. He must have some definite place where he can “hang his hat” which he intends to be and regards as his residence and home; and that he have no other such place. But the basis for so finding need not be limited exclusively to any particular fact or facts.

A number of circumstances may bear upon the problem, such as that the place in question is where: one was born; and/or spent his childhood; attended school; either lives or has lived and has a place to return to; that he owns or rents the place; that he has free access to it; that his parents, or his own family are there; that his children attend public school there; that he receives mail; is employed; operates a business; is registered for selective service there; that his driver’s license or automobile title or registration, or other personal credentials bear that as his home address; or that he pays income taxes there; or that he votes there, even though by absentee ballot.⁴ Although each of these and perhaps other factors may be considered in making the determination, it does not follow that the presence of any one of them alone would compel a finding of such residence; and similarly, the absence- of any one or more of them would not necessarily preclude such a finding.

I agree that the question as to whether a party has an actual and bona fide residence is a question of fact which it is the prerogative of the trial court to determine. In doing so it is his responsibility to consider all of the pertinent facts and circumstances. In order to justify a finding of such residence there must be the party’s-declared intent, together with some other overt indications which associate or connect him with an actual place of residence, such as one or more of the factors listed above.. If so, and the court is persuaded that such residence is proved, his finding cannot be-disturbed. On the other hand, if the court refuses to so believe, even though some-of such factors be present, his ruling can be overturned only if the evidence is so credible and persuasive that all reasonable minds: would conclude otherwise.

But the court’s prerogative of determin--ing the facts is subject to the condition-that they should be determined under correct principles of law. When the court indicates an erroneous legal concept as a basis-for the determination, so that it appears-that if he had the correct one in mind the-determination may have been otherwise, the-finding should not be permitted to stand.. For this reason I concur in the order remanding the case for a further hearing on the question of residence. But I think it should be in the light of the principles above-stated.

1 . See State ex rel. Laughlin v. Washington State Bar Ass’n, 1947, 26 Wash.2d 914, 176 P.2d 301, 309.

2 . See Kidman v. Kidman, 1945, 109 Utah 81, 164 P.2d 201.

3 .See statement in Commonwealth ex rel. Cronhardt v. Cronhardt, 1939, 135 Pa. Super. 117, 4 A.2d 589, 591.

4 „ For examples of such factors that may bo so considered see: Succession of Purdy v. Klock, 1934, 179 La. 902, 155 So. 394 (where one lives); Cline v. Knight, 1943, 111 Colo. 8, 137 P.2d 680. 146 A.L.R. 1281 (where one’s children attend school); Coffey v. Board of Election Commissioners, 1940, 375 Ill. 385, 31 N.E.2d 588 (where one receives mail); Hall v. Hall, 1870, 25 Wis. 600 (where one pays taxes); State ex rel. Ferebee v. Dillett, 1942, 240 Wis. 465, 3 N.W.2d 699 (where one votes); State ex rel. Taubman v. Davis, 1918, 199 Mo.App. 439, 203 S.W. 654 (where one operates a business) ; Arcadia Knitting Hills v. Minowitz, D.C.E.D.Penn.1943, 51 F.Supp. 601 (where one is registered for selective service).