Bustamante v. Bustamante , 1982 Utah LEXIS 915 ( 1982 )

HALL, Chief Justice

(dissenting):

I do not join the majority because it pursues a nonissue in reaching its conclusion that the case should be remanded for a second determination of the residency issue.

The trial judge did not determine the issue of residency as a matter of law. Rather, being fully advised in the law, he treated the issue as factual in nature.¹ His denial of jurisdiction to plaintiff came only after the taking of evidence, followed by a finding of fact that she did not intend to remain indefinitely in this country and therefore was not a Utah resident as required by U.C.A., 1953, 30-3-1. The evidence presented does not warrant any interference with that finding by this Court.

The standard for review of factual findings in equity cases has been stated recently by this Court:

... [D]ue to the prerogatives and advantaged position of the trial judge, we indulge considerable deference to his findings. Where the evidence is in dispute, we assume that he believed that which is favorable to his findings, and we do not disturb them unless it clearly preponderates to the contrary. [Citations omitted.]

Tanner v. Baadsgaard, Utah, 612 P.2d 345, 346 (1980). Thus, it is incumbent upon this Court to accept the trial court’s factual finding as to her intent unless the evidence clearly preponderates against that finding.

In order to meet the bona fide residency requirement of Section 30-3-1, plaintiff had the burden of proving to the trial court that during the three months preceding the filing of her complaint she had intended to remain indefinitely in Utah. Plaintiff offered nothing more than her own testimony to show such an intention on her part. She testified that she had come to Utah with the purpose of establishing her home here and that her husband had promised at that time to buy her a house in Utah. She acknowledged, however, that she held only a tourist visa and that she had obtained other such visas on previous occasions for the purpose of traveling outside El Salvador.

In contrast, defendant, her husband, testified that plaintiff had come to this country with the purpose of supervising their 16-year-old daughter while she finished her schooling in the United States. He repeatedly denied ever having promised to buy his wife a house in Utah, and he testified that she had never expressed to him any intention of remaining here permanently:

Q: When did you learn that it was your wife’s intention to stay here in the United States?

A: Well, the first time that I heard that was in court....

In addition to his own testimony, defendant offered as evidence a copy of the plaintiff’s application for extension of her visa, executed one month prior to the date of her complaint. The application states as plaintiff’s reason for initially coming to the United States “to visit family” and as her reasons for requesting the extension: “I would like to stay and spend Christmas with my family. Right now the political situation of the country is too unstable.” Under the heading “present nonimmigrant classification” is written the word “turist [sic].” The form also contains the statement, “I intend to depart from the United States on 12-31-80.” Defendant offered as further evidence copies of plaintiff’s passport and visa, which classify her as a tourist and nonimmigrant.

Plaintiff testified that she had no home to return to in El Salvador. This appears to contradict the allegation in her complaint that property accumulated by the parties during their marriage included “a farm and house in San Salvador, El Salvador, Central America, with an approximate value of $700,000.00.” Defendant testified that he and his wife do not hold title to any home in El Salvador, but he explained that the home in which the family had lived for 25 years is still owned by one of his sons and occupied by another son. He stated that even while his wife had been living in that home, ownership had been held jointly by himself and two of the children. From this testimony, it appears that plaintiff lost no legal interest in the home when she came to the United States, having previously held none, and that she still has family ties to the home as before.

Plaintiff attempts to strengthen her claim of residency by alleging that she owns property in Utah, maintains local bank accounts and uses a Provo mailing address. Plaintiff fails to cite any support in the record for these allegations. Regarding the ownership of property in Utah, she testified at trial, “I don’t have any property here. My husband does.” Even if the trial court had found the above allegations to be true, it still could not have concluded that plaintiff was a bona fide resident unless it was also convinced of her intention to remain in Utah.

Faced with conflicting evidence as to plaintiff’s intention concerning residency, the trial court had the duty to evaluate the credibility of the witnesses’ testimony and of the statements contained in defendant’s exhibits. The court determined that the most reliable evidence consisted of the statements in plaintiff’s application for visa extension, that she planned to return to El Salvador. Accordingly, it found that plaintiff did not possess the necessary intent to be classified as a bona fide resident. The court had before it sufficient evidence on which to base this finding, and there is no reason for this Court to substitute its own assessment of the evidence for that of the trial court. Plaintiff’s testimony, which constitutes the only evidence in her favor, clearly does not preponderate against the result reached by that court.

Accordingly, the trial court’s order of dismissal based on lack of jurisdiction should be affirmed.

DURHAM, J., does not participate herein.

1 . The majority correctly reaches the same con-elusion after its canvass of the cases.