Grange Mutual Casualty Co. v. Brinkley , 182 Ga. App. 273 ( 1987 )

Birdsong, Chief Judge,

concurring specially.

The majority opinion opines that Robertson v. Lumbermen’s Mut. Cas. Co., 160 Ga. App. 52 (286 SE2d 305) (1981) may be read to authorize the proposition that one who does not physically maintain permanent residence nor who does not utilize living accommodations in a home may never, regardless of other circumstances, be considered as a resident of that household. (The emphasized language does not appear in the Robertson decision.) Any statement that never admits the possibility of an exception is overbroad. Consequently, should one reading the Robertson decision attempt to impute so broad an interpretation to the definition of residence in the same household, I concur such an interpretation is incorrect, is not in that case, and is not warranted by the facts or the law of that case. In Robertson, the husband’s residence in his wife’s home had been precluded by court order while divorce proceedings were in progress, separate residences had been established, and there is in Robertson no residual vestiges of joint residence other than the rebutted inference of residence arising from an existing (i.e., non-dissolved) marriage. Thus insofar as any part of the Robertson case (or any other case) ever can be subject to a dogmatic, non-violable perfection, never subject to any exception, such a possible interpretation should be negated by this court. Insofar as Robertson in Division 1 on pp. 53-54 holds that the facts and law shed light on the intent of the parties and where those facts reasonably establish an intent to live separately and the facts do not show even an inferential desire to return as manifested by long absence and no utilization or reservation of living accommodations, then I do not concur that the definition of residence in Robertson should be overruled.

I am authorized to state that Judge Sognier and Judge Beasley join in this special concurrence.

Decided March 19, 1987. Richard A. Rominger, Randolph H. Donatelli, for appellant. Carmel W. Sanders, Karen D. Barr, John T. Woodall, for appellee.