Andris v. Andris

309 S.E.2d 570 (1983)

Joseph J. ANDRIS, III
v.
Lynda B. ANDRIS.

No. 8218DC1273.

Court of Appeals of North Carolina.

December 20, 1983.

Greeson & Turner by Joseph E. Turner, Greensboro, for defendant-appellant.

McNairy, Clifford & Clendenin by Locke T. Clifford, Greensboro, for plaintiff-appellee.

ARNOLD, Judge.

In an action for a divorce in this state, either the plaintiff or defendant must have 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. The word "resident" has been interpreted to mean the equivalent of "domicile." Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942). See Lee, North Carolina Family Law § 42 (1979). In order to establish a domicile, a party must make a showing of both actual residence in the new locality and the intent to remain there permanently. State v. Williams, 224 N.C. 183, 29 S.E.2d 744 (1944).

In the case at bar, defendant contends that plaintiff has failed to establish a North Carolina domicile in that, although he may have the requisite intent, he has not proven actual residence in this state. We find that the trial court properly found that plaintiff is domiciled in North Carolina.

The evidence introduced at trial showed that: 1) plaintiff changed his voter registration from Pennsylvania to Guilford County, 2) plaintiff filed a North Carolina income tax return for the year 1981, 3) plaintiff changed his permanent address with the Navy to his father's address in Greensboro as of 1 August 1981, 4) plaintiff opened a bank account in Greensboro in August of 1981 and has maintained it since that time, 5) plaintiff has changed the registration of his motor vehicle from Pennsylvania to North Carolina and has paid North Carolina property taxes, 6) plaintiff has resided at his parent's house whenever on leave from the Navy, and 7) plaintiff has severed all ties with the State of Pennsylvania. In short, plaintiff has done everything possible to establish a residence in North Carolina. The transient nature of his career with the United States Navy prohibits him from doing anything further.

Defendant cites the case of Martin v. Martin, 253 N.C. 704, 118 S.E.2d 29 (1961), to support her contention that plaintiff has not established a residence in North Carolina. In that case the court found that evidence that a United States Army officer stationed in North Carolina, who had registered his car and paid income tax in North Carolina and had obtained a North Carolina driver's license, was not conclusive on the question of legal residence, but was sufficient to be submitted to the jury. In addition, the court held that, in determining domicile for divorce actions, "mere presence is insufficient." 253 N.C. at 709, 118 S.E.2d at 33.

The court's holding in Martin does not preclude a finding that the trial court properly concluded that plaintiff was domiciled in North Carolina. Plaintiff has established more than mere presence in this state. A finding that he failed to meet North Carolina residency requirements would, in effect, penalize plaintiff for having chosen a military career, since he has done everything possible to make this state his actual residence. We hold that the trial judge properly found that plaintiff is domiciled in North Carolina.

Defendant also contends that the trial court erred in concluding that it had jurisdiction over her person when there had been no finding that she had any contact with North Carolina. We agree that the court improperly found jurisdiction over defendant, but find that this error was insignificant in that G.S. 50-6 allows a divorce proceeding "on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months." (Emphasis added). See Fleek v. Fleek, 270 N.C. 736, 155 S.E.2d 290 (1967).

We hold that the order of the trial court denying defendant's motion to dismiss is

Affirmed.

HEDRICK and BECTON, JJ., concur.