Israel v. Israel

121 S.E.2d 713 (1961) 255 N.C. 391

Frank Lee ISRAEL
v.
Maxine Faye ISRAEL.

No. 99.

Supreme Court of North Carolina.

September 27, 1961.

William J. Cocke, Asheville, for defendant-appellant.

James S. Howell, Asheville, for plaintiff-appellee.

WINBORNE, Chief Justice.

The defendant makes numerous assignments of error. This is the pivotal one: Did the trial court err in instructing the jury as a matter of law that unless plaintiff did intentionally change his home and intend to make some other State his permanent home for an indefinite period of time or for a permanent length of time, that his residence would remain in North Carolina even though he may have been in Korea or various other localities? We think the answer is No.

In Martin v. Martin, 253 N.C. 704, 118 S.E.2d 29, 31, Moore, J., speaking for the Court said, quoting in part as follows: "Jurisdiction in divorce actions is conferred by statute. The requirement that one of the parties to a divorce action shall have resided in the State for a specified period of time next preceding the commencement of the action is jurisdictional. If the element of residence is lacking the court has no jurisdiction to try the action or grant a divorce. Henderson v. Henderson, 232 N. C. 1, 9, 59 S.E.2d 227; Ellis v. Ellis, 190 N.C. 418, 421, 130 S.E. 7. In an action for divorce ``The plaintiff shall set forth in his or her complaint that the complainant or defendant has been a resident of the State of North Carolina for at least six months next preceding the filing of the complaint * * *.' G.S. § 50-8.

"``* * * To establish a domicile there must be a residence, and the intention to make it a home or to live there permanently or indefinitely. State v. Williams, [224 N.C. 183 (1944), 29 S.E.2d 744].' Bryant v. Bryant, 1947, 228 N.C. 287, 289, 45 S.E.2d 572.

"* * * In Williams v. State of North Carolina, 1945, 325 U.S. 226, 229, 65 S. Ct. 1092, 89 L. Ed. 157 it is said: ``Under our system of law, judicial power to grant a divorce—jurisdiction, strictly speaking—is founded on domicil. Bell v. Bell, 181 U.S. 175, 21 S. Ct. 551, 45 L. Ed. 804; Andrews v. Andrews, 188 U.S. 14, 23 S. Ct. 237, 47 L. Ed. 366. The framers of the Constitution were familiar with this jurisdictional prerequisite, and since 1789 neither this Court nor any other court in the English-speaking world has questioned it. Domicil implies a nexus between persons and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. The domicil of one spouse within a State gives power to that State, we have held, to dissolve a marriage wheresoever contracted.'

"``In a strict legal sense that place is properly the domicil of a person where he has his true permanent home and principal establishment, and to which he has, whenever he is absent, the intention of returning, and from which he has no present intention of moving.' 17A Am.Jur., Domicil, § 2, pp. 194-5."

And in Hart v. Queen City Coach Co., 241 N.C. 389, 85 S.E.2d 319, 321, Higgins, J., quotes with approval from Central Manufacturers Mut. Ins. Co. of Van Wert, Ohio v. Friedman, 213 Ark. 9, 209 S.W.2d 102, 1 A.L.R. 2d 557 as follows: "The domicile of a soldier or sailor in the military or naval service of his country generally remains unchanged, domicile being neither gained nor lost by being temporarily stationed in the line of duty at a particular place, even for a period of years. A new domicile may, however, be acquired if both the fact and the intent concur." See also: 19 C.J. 418; 28 C.J.S. Domicile § 12; 17A Am.Jur. Domicile, S. 40, p. 227; Trigg v. Trigg, 226 Mo.App. 284, 41 S.W.2d 588; Kennedy v. Kennedy, 205 Ark. 650, 169 S.W.2d 876.

Thus it appears that the charge was presented to the jury correctly and free of error.

Moreover, all assignments of error brought forth by defendant have been given consideration and fail to show cause for disturbing the decision reached in the court below.

In the judgment below there is

No error.