Opinion
No. 44032.
June 20, 1966.
Appeal from Chancery Court, Washington County, S.B. Thomas, Chancellor.
Lake, Tindall, Davison McGee, Greenville, for appellant.
No attorney for appellee.
This is an appeal from a decree of the Chancery Court of Washington County, dismissing a bill for divorce filed by appellant, Edward Kimber Bannan, against his wife, Mrs. Sharon Christy Bannan.
Appellant is a career naval officer, having been graduated from the United States Naval Academy at Annapolis in 1959. When he entered the Academy in 1955, he was 18 years of age and lived with his parents who were then residents of New Jersey. He has served continuously since his graduation as a commissioned officer in the Navy.
In January 1960, he was married at Annapolis, Maryland. In March 1960, his parents moved to Greenville, Washington County, Mississippi, where they have made their home ever since. Under orders of the Navy, he has been stationed, from time to time, in various parts of the country. On August 25, 1965, he filed a bill for divorce in the Chancery Court of Washington County alleging that his wife had been guilty of willful, continued and obstinate desertion for more than a year.
The court heard the case and found that the proof established the ground for divorce alleged in the bill, so as to entitle him to a divorce, but dismissed the bill upon the ground that the court did not have jurisdiction because appellant had not established that he was, and had been for more than a year, a resident of Washington County, Mississippi.
The case was uncontested and appellee has not appeared here, nor has any brief been filed on her behalf in this Court.
The bill alleges:
"* * * (Appellant) is a graduate of the United States Naval Academy and an officer of the regular Navy, whose designated permanent address is that of his parents in the City of Greenville, Washington County, Mississippi, has been such since the year 1960, and complainant alleges, therefore, that he is a resident citizen of Washington County, Mississippi, and has so resided, and has been such for more than one year prior to the commencement of this suit."
Appellant's testimony relevant to the question of residence or domicile is undisputed and is as follows:
Q. Now, where do they (his mother and father) presently reside?
A. Greenville, Mississippi.
Q. When did they move to Greenville, Mississippi?
A. In March of 1960.
Q. March of 1960 — and have they resided here permanently since that time?
A. Yes, sir.
Q. And that is in Washington County?
A. Yes, sir.
* * * * * *
Q. Now, at any time during that time (1961), did you come to Mississippi with your wife?
A. Yes, sir, when I finished my term at Beeville, we came between stations, going from Beeville, Texas, to California. We spent three weeks in Greenville, Mississippi, living with my parents. We brought quite a bit of our household goods and left them.
Q. They were living here (Greenville) at the time?
A. Yes, sir.
Q. Did you have any intent as to your residence, your permanent residence, and domicile at that time?
A. Yes, sir. When we were living in Florida, neither of us had a permanent residence listed, so when my folks moved to Mississippi, they lived on Leslane, in Greenville, and I listed that as my legal residence.
Q. Do you have any document of any kind showing that address?
A. Yes, sir, I have a driver's license I took out when I came back from overseas, and I went back to the Naval Academy, and I took a Maryland driver's license, and I listed as my legal address 1526 Leslane, Greenville, Mississippi.
Q. What is the date of that license, when was it issued?
A. March 29, 1961.
* * * * * *
Q. Now, Lt. Bannan, what, if anything, was done as to any statement to the Navy as to your residence, and at what time was it done?
A. At the time you had to fill out an emergency data form — that is the one I can think of right off-hand — to put in your flight jacket, if you were killed during aviation, and listed your legal residence, what town, and mine was listed as Greenville, Mississippi. This was done in Florida during 1960, and again it was filled out in Beeville, Texas, and brought up to date with the entry of one child, and my legal residence was given as my parents' residence on Leslane (in Greenville).
Q. In other words, that was entered on official Navy records as your domicile and permanent residence?
A. Yes, sir.
Official documentary evidence introduced and appearing in the record, giving 1526 Leslane, Greenville, as appellant's home address, includes his motor vehicle operator's license expiring March 1963, and his Navy record emergency data signed July 5, 1961.
There is nothing to indicate an intention on the part of appellant at any time to establish or claim any place other than Greenville as his residence or domicile.
The places where he lived during the years since his graduation from the Naval Academy, other than Greenville, were his duty stations. He did not go to Greenville under orders. Except for his duty stations, his only home, in the non-technical sense of that word, was with his parents. He left his furniture with them and obviously considered their Greenville home as his "legal residence." This is language a layman would use in referring to his domicile. For a man whose life is under the orders of a military service, we think that there was little more that he could have done to indicate an intention to make Greenville his home. This is supported by his uncontradicted testimony and by all of the relevant circumstances. A man must have a domicile somewhere, and we think the evidence was sufficient to show an abandonment of his domicile of origin and the selection of Greenville as his domicile of choice. It would indeed be an unwarranted hardship upon those who make a career of the military service to exact so strict a standard of them or to impose such rigid requirements, as to make it virtually impossible for them to establish a legal residence or domicile and enjoy the important privileges and advantages which would result.
There is no suggestion in this case that there was a violation of Mississippi Code Annotated section 2736(b) (1956), which provides that if the proof shows that a residence was acquired in the state for the purpose of securing a divorce, the court shall not take jurisdiction, but shall dismiss the bill.
We think that the domiciliary requirements of the divorce statute were sufficiently met by the evidence, and that the bill should not have been dismissed. This does no violence to established law relating to the acquisition of a domicile, and relates merely to the interpretation of uncontradicted testimony, and to the quantum of proof required under the circumstances of this case.
The decision in Smith v. Smith, 194 Miss. 431, 12 So.2d 428 (1943), which is suggested as having been the basis for the chancellor's conclusions, turned upon the fact that the presence of Smith at the place claimed as his domicile was not voluntary, but came about under the compulsion of military orders.
The chancellor has held, upon the evidence, that appellant is entitled to a divorce, and the cause is remanded for the entry of a decree of divorce and the making of an allowance for the support of the minor children of the parties, as prayed in the bill.
Reversed and remanded for further proceedings consistent with opinion of the Court.
All Justices concur, except INZER, J., who dissents.
With due deference to my colleagues, I must dissent with the majority decision in this case.
It is my opinion that the effect of the majority opinion is to hold that a person in military service who is over twenty-one years of age and married, and whose domicile is in a state other than Mississippi, may change his domicile and make the home of his parents in this State his domicile, by designating their address as his permanent address. This holding is not in keeping with the former decisions of this Court.
It is stated in the majority opinion that the indication is that the trial court relied on the case of Smith v. Smith, 194 Miss. 431, 12 So.2d 428 (1943). This indication evidently comes from the brief of appellant because the record does not reflect that the court relied upon this case. In any event, this Court's holding in Smith, supra was that there was no evidence of any affirmative acts by Smith indicating a present intent to establish a domicile in Mississippi. The same is certainly true in this case. The Court said in that regard:
To constitute complainant an actual bona fide resident of Forrest County there must have been, (1) an actual residence voluntarily established in said county, (2) with the bona fide intention of remaining there, if not permanently, at least indefinitely. While complainant's own testimony as to his intention is relevant, the unwisdom of accepting as sufficient a mere assertion thereof is recognized in the requirement that it be competent only when it is employed as an incident, albeit a necessary incident, to give meaning to the act of setting up residence. (194 Miss. at 434, 12 So.2d at 429.) (Emphasis added.)
Appellant cites and relies upon Skelton v. Skelton, 236 Miss. 598, 111 So.2d 392 (1959), wherein the following statement is found:
The proof shows that prior to this last enlistment in the coast guard the appellee had spent his leaves with his parents at Gulfport, Mississippi; that he had been formerly registered for the selective draft service with the local draft board at Gulfport; that he had worked part of the time between one enlistment and another as an employee of the Mississippi State Highway Commission at Gulfport; and that when he registered for the enlistment which resulted in his being assigned to Honolulu, Hawaii, he went from Gulfport to the City of New Orleans, Louisiana, for enlistment since that was the nearest naval base at which he could enlist for coast guard service and gave Jones Street, Gulfport, Mississippi, as his address and place of residence. He testified that it has been his intention all the while that upon retirement from the coast guard service he will return to Gulfport to live. We have concluded that since the appellee had been away from Florida since August 6, 1956 and was entitled to select a domicile and place of residence somewhere, and has never been a registered and qualified elector anywhere we are unable to say that the trial court was manifestly wrong in retaining jurisdiction of this suit for divorce. (236 Miss. at 601-602, 111 So.2d at 393.) (Emphasis added.)
It is my interpretation of the law from the foregoing and other decisions of this Court that the finding of the chancellor relative to the facts in this case should not be reversed unless he was manifestly wrong. The majority opinion, in effect, holds that the evidence in this case is subject to interpretation. This being true, the chancellor had the duty to interpret the evidence, and in so doing, he could consider not only what appellant said, but also what he did not say. The evidence shows that at the time appellant's parents moved to Mississippi, he was over twenty-one years of age, married and resided in Florida, where he had been sent on Naval order. His domicile was fixed at that time in New Jersey. It cannot be said that the fact that his parents moved to this State in any way affected appellant's domicile. After his parents moved to Mississippi, appellant listed his permanent address as that of his parents for the reason, as he stated, that neither he nor his wife had any permanent address. The proof in this case shows that at the time this was done, he had never been in Mississippi, and he does not say that he had any intention of making Mississippi his home then or in the future; it was evidently done for convenience. Insofar as the record reveals, the only time that appellant ever spent in Mississippi prior to filing this suit was a three-week period he spent in Greenville visiting his parents between duty assignments. He does not say that he had at that time decided to make Greenville his permanent home; neither does he say that he intended to return and make it his home. In addition to these facts, the chancellor could consider that appellant's father's testimony failed to show any act or statement of his son that would indicate an intention on the part of his son to make Mississippi his home.
The fact that Mrs. Bannan did not contest this suit in the trial court or file a brief in this Court is not controlling. The State of Mississippi has an interest in all divorce cases; it favors marriage, and is interested in the permanency of all marriages. The duty rests upon the trial court as a representative of the State to see that public interest is fully protected. In uncontested divorce cases, the court must look after the public interest as best it can, and in all divorce cases, the court must, among other things, be careful to see that it has jurisdiction of the parties and subject matter of the suit. Thus, in dismissing the bill of complaint in this case, the chancellor was exercising a duty placed on him by law, and this Court should not reverse his findings unless it appears that he was manifestly wrong. Amis, The Law of Divorce and Separation in Mississippi Chapter 1 § 17 (1935).
The majority opinion did not hold that the chancellor was manifestly wrong in his interpretation of the evidence; it merely interpreted the evidence most favorable to the appellant. It is my opinion that when the evidence in this case is objectively examined, it may be readily seen that the chancellor reached the right conclusion. His evaluation of the evidence should control, and his action in dismissing the bill of complaint in this case was not error.
For the reasons stated, I must disagree with the decision in this case, not because I think it will in any way affect the decision reached, but in hope that in future cases involving the same issues, that this Court will relegate this case to its proper place, the library of forgotten cases.