Opinion
No. 3549.
Decided June 28, 1945.
In a libel for divorce, the granting of libelee's motion to dismiss, based upon the contention that the libelant had not established a domicile in this state, included a finding by the trial Court that the libelant had not sustained his burden of proof.
LIBEL FOR DIVORCE. The libelee filed an answer in the form of a motion to dismiss, contending that the libelant had not established a domicile in this state. After hearing, the Court made the following order: "Motion granted. Libel dismissed." The libelant excepted.
The libelant is an officer in the United States Army and entered the armed forces on February 16, 1941. He was then domiciled in Mississippi, where his wife and child are now living. He came to Manchester on February 6, 1944, under orders, and has been living at 97 Sunnyside Avenue since March 1, 1944. His testimony on the issue of intent was as follows:
"Q. On the 10th day of February, 1945, when your libel was filed, you were living here in Manchester? A. Yes, sir. Q. Have you any intention of changing your address? A. No, sir. Q. Where is going to be your address in the future? A. Manchester, New Hampshire. Q. When did you make that decision? A. When I first came here I was associated with officers who lived here. From business acquaintances I had jobs offered to me. This is my home. This will be my home in the future. I never expect to return to Mississippi."
Transferred by Wheeler, J.
William G. McCarthy (by brief and orally), for the libelant.
Chretien Craig, for the libelee.
It is unnecessary to decide how far the general rule relating to the acquisition of a domicile by a soldier on military duty would here be followed. With reference to that rule, see Restatement, Conf. of Laws, s. 21, comment c; Anno. 129 A.L.R. 1387, 1388; 28 C. J. S. 28, note 12; West v. West, 35 Haw. 461, and cases cited.
A domicile is "the place in which, both in fact and intent, the home of a person is established" (Foss v. Foss, 58 N.H. 283, 284), and "whether or not a new domicile has been acquired is primarily a question of fact under all the circumstances of the particular case" (Bailey v. Bailey, ante, 259, 261).
The Presiding Justice was not obliged to believe the libelant's assertion that he regarded Manchester as his home, and the dismissal of the libel, after the Court had taken the libelant's testimony under advisement, included a finding that the plaintiff had not sustained his burden of proof. Kidd v. Trust Co., 75 N.H. 154, 155, and cases cited.
Exception overruled.
MARBLE, C. J., was absent.