Michael Frederick Jones v. Rebecca Lynn Webb Jones ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia
MICHAEL FREDERICK JONES
MEMORANDUM OPINION * BY
v. Record No. 2003-02-1 JUDGE D. ARTHUR KELSEY
MARCH 18, 2003
REBECCA LYNN WEBB JONES
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
Roy H. Lasris (Lasris & Vannan, P.C., on
briefs), for appellant.
James A. Carter, II, for appellee.
Michael F. Jones contends that the trial court lacked
jurisdiction under Code § 20-97 to adjudicate this divorce
proceeding because his wife, Rebecca L. Jones, was not a
Virginia domiciliary during the six months preceding her filing
of the bill of complaint. Finding no error in the trial court's
decision, we affirm.
I.
Michael and Rebecca Jones were married in Tennessee in
1994. They lived in Tennessee at the time of the marriage, and
both became employees of Cable Com, Inc. In 1998, the parties
purchased a home in Lancing, Tennessee. At about the same time,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Cable Com transferred them to Florida. They lived in the
Lancing home "for maybe twelve nights total" before moving to
Florida.
While in Florida, the couple obtained a bank account at a
local branch of NationsBank (now Bank of America) and purchased
a boat, which they registered in Florida. The couple, however,
retained their Tennessee drivers' licenses and vehicle
registration. They also listed their Lancing house as their
home of record for employment purposes.
In 1999, the couple accepted an assignment to a Cable Com
job in Virginia. As far as Rebecca knew, the Cable Com contract
in Virginia was "indefinite [in] nature." As a result, she
intended to "remain in Virginia indefinitely" until her job
required her to move again. Michael and Rebecca rented a house
in Williamsburg for approximately one year and transferred their
bank account to a local Virginia branch of NationsBank. Rebecca
testified that she intended to pay income tax on her Virginia
taxable income, though no evidence of actual payment appears in
the record.
On August 5, 2000, Michael moved out of the Williamsburg
home and later moved back to Tennessee. Rebecca remained in
Virginia and moved into an apartment with a one-year lease term.
On August 11, 2000, Rebecca filed a bill of complaint for
divorce a vinculo matrimonii in York County Circuit Court. She
alleged, among other things, that she had "been an actual bona
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fide resident and domiciliary of the Commonwealth of Virginia
for at least six (6) months next preceding the commencement of
this suit." Michael filed an answer unconditionally admitting
this allegation.
Four months later, during a pendente lite hearing in
December 2000, Rebecca sought exclusive possession of the
Lancing house. During the hearing, Rebecca stated her desire to
return to Tennessee when her job assignment in Virginia ended.
Based on this contention, Michael objected to jurisdiction
pursuant to Code § 20-97, which provides that "[n]o suit for
annulling a marriage or for divorce shall be maintainable,
unless one of the parties is and has been an actual bona fide
resident and domiciliary of this Commonwealth for at least six
months preceding the commencement of the suit." The trial court
deferred ruling and directed that Rebecca be deposed on the
issue of domicile.
During her deposition, Rebecca acknowledged that Tennessee
was still her home of record for employment purposes. She also
retained her Tennessee driver's license, renewed her automobile
registration in Tennessee, and identified Tennessee as the place
where she kept her vehicle for insurance purposes.
Despite repeatedly referring to Tennessee as her "home,"
Rebecca clarified that she considered Tennessee to be her "heart
home," the place she was "born and raised." In this sentimental
sense, she explained, "home will always be Tennessee . . . [n]o
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matter where I'm at." "That is where I grew up. But I live
here." With respect to the house in Lancing, Rebecca explained
that she and her husband "have never lived there" and used it
mostly as a vacation home. All utility bills for the Lansing
house were sent to the couple's Virginia address.
When directly questioned about her intent when she came to
Virginia, Rebecca testified:
Q: Okay, when you first came to Virginia,
did you consider Virginia then to be
your home?
A: Yeah.
Q: Okay. And so on October 8th of 1999,
you believe you established a
residency, a domicile in Virginia?
A: Yes. We leased a house here.
* * * * * * *
Q: All right. When you filed the Bill of
Complaint in Virginia, did you intend
to be a Virginia resident and
domiciliary and to use the court of
Virginia when you filed for divorce
here?
A: Yeah.
Q: And why did you do that?
A: Because I live here. I mean, I can't
go back to Tennessee, you know, and –
that doesn't make any sense. I live
here.
Rebecca also testified that, after her separation, Cable Com
gave her an opportunity to move to California, Kansas, or
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Louisiana. When she learned that Michael was leaving the state,
Rebecca elected to remain in Virginia.
At a later ore tenus hearing, the trial court reviewed
Rebecca's deposition and took additional testimony on the
domiciliary issue. At the conclusion of the hearing, the court
overruled Michael's objection to jurisdiction and found, "upon
consideration of the testimony and the depositions," that
Rebecca met the requirements of Code § 20-97.
II.
For purposes of Code § 20-97, the "determination of
domicile and bona fide residence is a mixed question of law and
fact, reviewable on appeal." Adoteye v. Adoteye, 32 Va. App.
221, 226, 527 S.E.2d 453, 456 (2000). Though the "fact finding
component of that determination is given deference," we review
the law component de novo. Id. Applying this standard of
review, we find no error in the trial court's ruling.
"Domicile contemplates living in a place with the intent to
remain there permanently or for an indefinite period of time."
Adoteye, 32 Va. App. at 226, 527 S.E.2d at 455-56 (quoting Rock
v. Rock, 7 Va. App. 198, 202, 372 S.E.2d 211, 213 (1988)). Once
acquired, domicile "continues to exist until another is acquired
elsewhere." Talley v. Commonwealth, 127 Va. 516, 520, 103 S.E.
612, 614 (1920). To acquire a new domicile, "there must be an
actual abandonment of the old domicile, coupled with an intent
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not to return to it, and also a new domicile acquired at another
place, which can only be done by the union of intent and
personal presence." Id. "Intent is to be inferred from
declarations and from conduct." Guilfoil v. Hayes, 169 Va. 548,
556, 194 S.E. 804, 807 (1938) (quoting Bowen v. Commonwealth,
126 Va. 182, 190, 101 S.E. 232, 234 (1919)). When in conflict,
evidence of "acts and conduct showing intent" may outweigh
inconsistent "declarations or expressions of intent." Id.Under Code § 20-97, the requisite intent to be a Virginia
domiciliary must exist during the six-month period immediately
preceding the commencement of the suit. If Rebecca genuinely
had this intent but decided to abandon her Virginia domicile the
day after filing suit, she nonetheless would satisfy the
statutory requirements under Code § 20-97. Our focus,
therefore, must be on Rebecca's intent during the six months
preceding the filing of her divorce complaint.
We begin with Rebecca's declarations of domiciliary intent.
In 1999, she left an ongoing job in Florida to come to Virginia.
Rebecca testified that she "established a residency, a domicile"
in Virginia and considered it to be her new home. The trial
court could, and no doubt did, discount her sentimental remarks
about Tennessee as merely an expression of an emotive bond with
that state —— the place where she was born and raised.
In addition to reviewing Rebecca's deposition, the trial
court heard additional testimony at the ore tenus hearing. No
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transcript of that hearing appears in the record. The trial
court's statement of facts, however, states that its decision
rested on "consideration of the testimony and the depositions."
We place great weight on a chancellor's ore tenus findings,
which are "peculiarly entitled to respect for he saw the
parties, heard the witnesses testify and was in closer touch
with the situation than the [appellate] Court, which is limited
to a review of the written record." Ferguson v. Grubb, 39
Va. App. 549, 557, 574 S.E.2d 769, 772 (2003) (citations and
internal quotation marks omitted).
We next turn to Michael's declarations concerning Rebecca's
domiciliary intent. In the trial court, Michael made an
unqualified admission in his responsive pleading of Rebecca's
Virginia domiciliary status. Michael argues on appeal, and we
certainly agree, that he cannot consent to subject matter
jurisdiction of the court. 1 The trial court, however, did not
treat Michael's concession as a waiver of his challenge to
jurisdiction. Nor do we. It is simply an evidentiary admission
by a litigant to be given whatever weight the fact finder
1
See generally Commonwealth v. JOCO Found., 263 Va. 151,
160, 558 S.E.2d 280, 284 (2002); Nelson v. Warden, 262 Va. 276,
281, 552 S.E.2d 73, 75 (2001). It is because subject matter
jurisdiction "involves a court's power to hear a case" that
challenges to it "can never be forfeited or waived." United
States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781, 1785 (2002).
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determines just —— much like a party admission in a deposition
or one made from the witness stand. Cf. Davis v. Davis, 206 Va.
381, 384, 143 S.E.2d 835, 837 (1965) ("Thus corroborated, the
testimony of both the parties to the suit was entitled to be
given practical effect, especially since there is not the
slightest suggestion of collusion in the record.").
After all, at the time of the admission, Michael knew of
the Tennessee vacation home, the vehicle registration, and the
discussions he had with his wife about the move to Virginia.
Knowing that, Michael still admitted without qualification that
she was a Virginia "resident and domiciliary" during the six
months prior to the divorce complaint. If Rebecca's intent were
different, Michael was certainly in a position to know. We thus
find his admission has evidentiary weight and can be considered
along with the other facts of the case.
Finally, we consider Rebecca's conduct as it relates to her
domiciliary intent. We agree with Michael that her Tennessee
vehicle registration, her employment home of record, her
sentimental attachment to Tennessee, and similar facts together
raise a permissible inference that Virginia was a temporary
sojourn for Rebecca. We do not believe, however, that this
inference —— however strong it may be —— precludes as a matter
of law the finding of Virginia domiciliary status given the
other facts and circumstances in this case. In themselves,
these discordant facts are not enough to require a fact finder
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to disbelieve Rebecca's declared intent and those additional
circumstances (such as Michael's concession) that corroborate
her domiciliary intent.
III.
In sum, the evidence supports the trial court's conclusion
that Rebecca Jones was a domiciliary of Virginia during the six
months preceding the filing of her complaint. For this reason,
the trial court correctly concluded that it had jurisdiction
under Code § 20-97 to adjudicate this divorce case.
Affirmed.
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