10 A.2d 888 | Pa. Super. Ct. | 1939
Argued November 16, 1939. This action in divorce was brought by a husband against his wife on the grounds of (1) cruel and barbarous treatment and (2) indignities to his person such as to render his condition intolerable and life burdensome. The master recommended the libel be dismissed. The court sustained exceptions in part to the master's report, granting a divorce for indignities only. The respondent appealed.
It is unnecessary for us to discuss the merits of the case as the decree of the court below must be reversed for want of jurisdiction, as the libellant failed to prove that he had acquired a bona fide residence in this Commonwealth at least one whole year immediately previous to the filing of his libel, as is required by the Pennsylvania Divorce Code of May 2, 1929, P.L. 1237, section 16 (23 PS sec. 16).
The libellant was born May 22, 1888, in Philadelphia. In 1895, when he was seven years old, his family moved to Merchantville, New Jersey, where the libellant continued living, with his parents, for twenty-two years. He registered and voted in Merchantville, became a member of a church, and joined a fraternal organization there.
In 1917 he joined the United States Marines at Philadelphia, stating that Merchantville was his place of residence. He reported for duty at the Marine Barracks in Philadelphia, and lived there fourteen months until July, 1918, when he was assigned to Quantico, Virginia. Thereafter he was transferred to different stations, returning to Quantico in 1925. In November of that year he married the respondent, a resident of *342 New York City, in Washington, D.C. Immediately after the marriage, he returned to Quantico and his wife to New York. It was her custom for several months to spend her week-ends in Washington with her husband at different hotels. In January, 1926, they started to live together continuously, first in Fredericksburg and then in Quantico. September of that year he was assigned to Cuba and his wife then went back to New York. Thereafter he was located in different stations in this country and abroad, and at times she for brief periods joined him.
In 1930 the parties were living in Shanghai, where they remained until October, 1932, when they returned to the United States. After a short stay in California they went to New York, he reporting for duty at the Brooklyn Navy Yard. Very shortly thereafter he obtained a leave of absence of ten days, which he spent with his parents in Merchantville.
In January, 1933, he was assigned to the Philadelphia Navy Yard. The first two weeks he lived with his wife at the St. James Hotel. They then moved to a furnished apartment on Baltimore Avenue, Philadelphia, which he rented on a monthly lease. They remained there until June 13, 1933, when he was assigned to duty in a CCC Camp in Kentucky. His wife again went to New York, taking with her their belongings, with the exception of some of her husband's effects which were sent to Merchantville, and his uniforms, books, and certain of his clothing which he sent to a locker in the Philadelphia Navy Yard.
After serving in CCC Camps in Kentucky and Ohio he returned to the Philadelphia Navy Yard in February, 1934, and was assigned to the barracks, where he lived until August, 1935. During this last period he visited his parents in Merchantville two and three times a week, staying overnight on each occasion. On the 19th of December, 1934, he filed his libel in divorce.
During all this period of service he was never assessed *343 nor did he pay any taxes, except an income tax in Philadelphia on two occasions, dates not given, and once when he was located in St. Thomas, Virgin Islands.
We said in Starr v. Starr,
There is no doubt that the libellant was originally a resident of New Jersey, as a "minor child has the same domicile as that of his father:" Restatement, Conflict of Laws, sec. 30, Comment (c);Raymond v. Leishman,
When a residence is once acquired, it is presumed to continue until it is shown to have been changed, and when a change is alleged, the burden of proving it rests upon the one making the allegation, and two things are indispensable thereto: First, a residence in a new locality, and, second, the intention to remain there. "Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior domicile for another. Until the new one is acquired the old one remains:" Barclay's Estate,
The domicile of a soldier in military service generally *344 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:" 19 C.J. p. 418, sec. 39; Beale, Conflict of Laws (1935) p. 155.
The learned court below did not discuss, and we are not sure, therefore, whether it considered the question of its jurisdiction. The master was in error when he stated that the libellant gave his address as Philadelphia when he entered the Navy. His testimony (240a) shows that he gave his residence as Cove Road, Merchantville, New Jersey. The master's erroneous conclusion that the Pennsylvania courts had jurisdiction may be attributable to this inadvertent misstatement of fact. The libellant's testimony was rather vague concerning the time his residence began in Philadelphia. He certainly did not definitely state that he regarded himself a resident of Philadelphia prior to January, 1933, as is disclosed by his testimony, reading as follows:
"By the Master:
"Q. There is one thing further about this question of residence that I would like to ask you: Why do you consider Pennsylvania your place of residence?
"A. Because that is where my station and duty is.
"Q. When did you first determine that Pennsylvania was your residence?
"A. The 4th of January, 1933 — the first?
"Q. Yes.
"A. May 22, 1888.
"Q. You did not have capacity to think at that time.
"A. I considered when I arrived here on January 7, 1933 — the 1st of January, 1933, is when I considered I came to Philadelphia as a resident because I was stationed in the City at the Navy Yard."
Furthermore, declarations alone of domicile are self-serving and insufficient; they must be followed by acts which are in accordance with the declarations: Dorrance's Estate,
Even if we assume the libellant began to live permanently in Philadelphia in 1934 when he last returned, it would be unavailing in this proceeding to establish jurisdiction, as, in that event, he had not resided within the Commonwealth one whole year prior to the filing of the libel in December, 1934.
We do not regard this case as strong in its facts as that ofNixon v. Nixon,
In Gearing v. Gearing,
The appellant argues that as League Island, on which the Philadelphia Navy Yard is located, was ceded to the United States by the Act of February 10, 1863, P.L. 24, and the supplement of April 4, 1866, P.L. 96 *347
(
Decree of the court below is reversed, and it is ordered that the libel be dismissed for want of jurisdiction, at the appellee's costs.