243 N.C. 24 | N.C. | 1955
The only question for determination on this appeal is whether the finding of the court below, that plaintiff was a citizen and resident of Madison County, North Carolina, at the time she instituted this action, is supported by competent evidence.
There is nothing in the evidence adduced in the trial below to support the finding that this plaintiff, on account of the visits of the defendant to Tennessee and his conduct toward her in that State, made arrangements to spend all of her nights at her father’s home in Madison County and to commute daily from that point to her employment in Greene-ville, Tennessee. On the contrary, the evidence is to the effect that by reason of his visits to see her in Tennessee, she instituted an action in Tennessee for absolute divorce on 16 April, 1955, in which action she filed a duly verified complaint under oath in which she swore that she was a citizen and resident of Greene County, Tennessee. However, according to the plaintiff’s affidavit filed in her behalf in the hearing below, being unable to obtain service on the defendant in Tennessee, upon advice of her counsel, she came to North Carolina for the purpose of instituting this action in Haywood County, North Carolina, the
In her affidavit, referred to above, she states that while she was employed in Greeneville, Tennessee, and commuted back and forth from Greeneville to Johnson City, “she maintained her home with her father in Madison County, North Carolina, and returned to her said home during the week-ends.” Even so, she then proceeded to negative any contention that she had been at all times a citizen and resident of North Carolina. She says, . . this affiant in the latter part of April, 1955, made plans to start spending all of her nights in her father’s home in Madison County, North Carolina, as soon as she had completed her course and to commute daily from her father’s home to her employment in Greeneville, Tennessee, and in this manner to have her residence in the State of North Carolina; that after making this decision to establish and maintain her residence at the home of her father in Madison County, North Carolina, and after having taken steps to put this decision into effect, this affiant went to Haywood County, North Carolina and conferred with counsel . . . relative to bringing a legal action against the defendant in Haywood County, North Carolina; that . . . (counsel) advised this affiant to go to . . . an attorney at Marshall, and get him to bring her action in Madison County . . .” (Emphasis added.)
A careful consideration of all the evidence disclosed on this record leads us to the conclusion that it will support, at most, nothing more than an intention on the part of the plaintiff to establish her residence in Madison County, North Carolina, after she completed her training in Tennessee, and there is no evidence tending to show that such training had been completed at the time this action was instituted. Moreover, intent alone is not sufficient to establish a legal residence or domicile by choice. Horne v. Horne, 31 N.C. 99; Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R. 284; Roanoke Rapids v. Patterson, 184 N.C. 135, 113 S.E. 603. There must be both residence and animus manendi. Bryant v. Bryant, 228 N.C. 287, 45 S.E. 2d 572.
Furthermore, there is no evidence which tends to show that when the plaintiff instituted this action on 30 April, 1955, she had taken any of the steps outlined in her affidavit by which she proposed or intended to establish her residence in North Carolina. At the time of the hearing below, she may have moved to her father’s home and consummated her
The motion for change of venue should have been allowed.
The ruling of the court below is
Reversed.