Hawkins v. Winstead

*14 HOLDEN, C.J. This is an application for a writ of mandate to require' and direct Hon. Charles E. Winstead, one of the judges of the District Court of the Third Judicial District of the state of Idaho in and for Ada county, to take jurisdiction of the divorce suit of Hawkins v. Hawkins, commenced in said district court by the applicant herein against his wife, Laura Hawkins, August 24, 1942. An alternative writ issued to which the defendant answered denying jurisdiction on the ground applicant was not a resident of the State of Idaho at the time he filed his complaint. The facts appear to be substantially as follows: That May 22,1941, applicant, while a private in the United States Army, stationed at Langley Field, Virginia, married; that immediately thereafter he was transferred to Westover Field, Massachusetts, and in January, 1942, was again transferred and assigned to the air base at Gowen Field, near Boise, in Ada County, Idaho; that shortly after being transferred to Gowen Field applicant was granted permission by his .commanding officer to live in Boise, pursuant to which he rented a room in Boise, made his home and lived there and off the Gowen Field Base, reporting for duty at Gowen Field as required; that applicant decided to make Boise his future home to return to whenever he should be discharged from and his services no longer required in the Army; that with that bona fide purpose and intent, applicant registered in the City of Boise as a voter and elector; that following the filing of the complaint in divorce, as aforesaid, summons issued; that pursuant to an appropriate order therefor, summons was served by publication and that defendant Laura Hawkins was, and is, in default; that in the divorce suit applicant submitted proof in support of his complaint and rested, whereupon defendant judge being in doubt as to whether a person serving in the armed forces of the United States (as was and is the applicant herein) could establish a new residence while so serving his country, reserved the matter of passing on that question; that thereafter, to-wit, October 23, 1942, the defendant judge entered an order in effect holding that a person could not, while serving in the armed forces, establish a new residence, and, therefore, that the.court was without jurisdiction, and on that ground denied the divorce. Sec. 5 of art. VI, of the constitution of the State of Idaho provides: *15 “[Sec. 5.] Residence for voting purposes not lost or gained. — For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of this state, or of the United States, nor while engaged in the navigation of the waters of this state or of the United States, nor while a student of any institution of learning, nor while kept at any alms house or other asylum at the public expense.” [Immediately following statehood the legislature adopted this section, without any change, now sec. 33-403,1.C.A.] Sec. 31-701, I.C.A., as amended by chap. 94, S.L. 1937, p. 132, provides: “Section 1. That Sec. 31-701, Idaho Code Annotated, be and the same is hereby amended to read as follows: “31-701. Residence Required by Plaintiff. — A divorce must not be granted unless the plaintiff has been a resident of the state for * * six full weeks next preceding the commencement of the action.” If service in the armed forces of the United States is not in and of itself, under sec. 5, supra, a bar to establishing a new residence, then and in such case, under sec. 31-701, supra, residence in this state “for six full weeks next preceding the commencement of the (divorce) action” is sufficient. Therefore, we address ourselves to the consideration of sec. 5, supra. • First: It will have been noted that sec. 5, supra, goes solely and only to the matter of gaining or losing residence for voting purposes, not to the matter of establishing a new residence for the purpose of prosecuting a suit for divorce. Secondly: Can the courts, absent both constitutional and statutory law (sec. 33-403, I.C.A., being identically like sec. 5, supra), concerning the matter of establishing a new residence for the purpose of prosecuting a suit for divorce, enact that service in the United States Army shall constitute a bar to the establishment of such new residence? Of course not. There being, then, neither a constitutional nor statutory bar to establishing a new residence while serving in the armed forces of the United States, it follows that applicant could establish a new residence in the State of Idaho while serving in the United States Army. In support of this view, we direct attention *16 to the very recent case of Gipson v. Gipson (Supreme Court of Florida, en banc) 10 So. (2d) 82, where that court held: “To effect a change of domicile there must be a removal and an intent. That the former is accomplished because of the performance of duty (as is true of the applicant herein) by one in the service of his country is immaterial where, as in the instant case, the latter is established. In such circumstances the rule that there must be concurrence of factum and animus is satisfied.” And in Kankelborg v. Kankelborg (Supreme Court of Washington) 90 P. (2d) 1018, 1019, that court held: “The domicile of a soldier or sailor in the military or naval service of his country generally 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. A new domicile may, however, be acquired if both the fact and the intent concur. “An officer or a private may acquire a domicile outside his military or naval station, the fact of change being established by independent evidence.” To the same effect 19 C.J. 418; 28 C.J.S., sec. 12, p. 28; Ex Parte White, 228 F. 88; Wood v. Fitzgerald, 3 Ore. 568, Johnston v. Benton, (Cal. App.) 239 P. 60. But it is insisted that under the rule announced by this court in Powell v. Spackman, 7 Ida. 692, 65 P. 503, applicant could not establish a new residence while serving in the United States Army and thus give the court jurisdiction of his divorce suit. The question presented in that case was: “Can this residence (referring to voting residence) be acquired by a person who is an inmate of an almshouse or of an asylum kept at public expense, while residing in such almshouse or asylum ? * * * “It will be seen that the specific inquiry here is whether a resident of some county other than Ada county can take up his abode in the soldiers’ home, in soldiers’ home precinct, in Ada county, intending to make that his home permanently, and with the intention of abandoning his former residence, and by continuous presence in said soldiers’ home for thirty days (he having been in the state six months prior thereto), acquire the right to vote in said precinct. The stipulation of facts in this case shows that the votes in question were cast by inmates of the soldiers’ *17 home, who, ‘during all the time of their residence in Ada county, .... were maintained in the said soldiers’ home at the public expense.’ With all due deference to the inmates of said soldiers’ home, there can be no question but what it is an ‘asylum,’ maintained ‘at the public expense.’ ^ si* “In People v. Hagan the question arose whether an inmate of a hospital, who performed certain labor there, was ‘kept at the public expense.’ The court, inter alia, said: ‘The question, then, is, Was the relator “kept” (that is, support ed —Silvey v. Lindsay, 107 N.Y. 60, 13 N.E. 446) in the hospital? If so, he neither gained nor lost a residence by reason of his presence there while being so kept or supported . . . But, if he was simply an inmate of the hospital under a bare license — that is, with mere permission to use it as an asylum — then, clearly, he could not gain a residence there while enjoying the maintenance it afforded him . . . It was, in part, at least, to prevent such institutions from being utilized for political purposes, that this provision of the constitution was adopted.’ ” The court then held: “A constitutional provision which provides that ‘for the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence . . . while kept at any almshouse or other asylum at public expense,’ ‘preserves the voting status of the inmates of a soldiers’ home at the time of their entry thereto, and such inmates cannot acquire, by reason of their presence in such soldiers’ home, and while kept at public expense, the right to vote in the county and precinct in which such institution is located.” It will be noted the decision in Powell v. Spackman, supra, was rested primarily on two propositions: 1. That the soldiers’ home was an almshouse; next, that sec. 5, supra, was adopted to keep such institutions — almshouses and soldiers’ homes — from being used for political purposes. Therefore, it is at once clear the question presented in the case at bar was not presented in Powell v. Spackman. Furthermore, if Powell v. Spackman, supra, is subject to the construction placed upon it by defendant, who, however, does not contend the decision was right, then the decision of this court in that case was wrong and ought to be, and *18 hereby is, overruled. The decision was wrong in that it placed veterans living at the Soldiers’ Home on a level with paupers living in an almshouse. Such veterans were not, and the veterans now living at the Soldiers’ Home, are not, paupers, and we refuse to brand them as such. Not only did Powell v. Spackman do that, but it also disfranchised the brave veterans then living there who had offered their lives for their country, and if adhered to in this case would disfranchise the valiant veterans now living in the Soldiers’ Home, who likewise offered their lives for their country. It is further contended Reubelmann v. Reubelmann, 38 Ida. 159, 220 P. 404, supports the proposition that a person cannot establish a new residence in this state for the purpose of prosecuting a suit for divorce while serving in the United States Army. It appears Mary E. Reubelmann commenced a suit for divorce in Pocatello in Bannock County, against her husband, Louis Reubelmann; that she had lived with her husband in Pocatello from 1887 to November 1919; that in November, 1919, she went to California where she remained until February, 1921; that her husband, Louis Reubelmann, contended she had lost her residence in the State of Idaho by going to California and remaining without the state for the period above stated. The court, in passing upon that contention, said this: “The only question about this point (going to and remaining in California) is whether respondent (Mary E. Reubelmann), by going to California in November, 1919, and remaining there almost all the time up to February, 1920, lost her legal residence in Idaho. We think she did not. It is shown that appellant went to California immediately after respondent went and that for about two months after their arrival there they lived together as husband and wife. He returned to Idaho in January, 1920, while she remained in California until October, 1.920, when she returned to Idaho for about ten days. She then went back to California and remained until' February, 1921, when she returned to Pocatello and began this action for divorce. No special reason is assigned for her stay in California, but the record shows her to have been in a nervous condition, which might have necessitated the move. There is nothing whatever in the record to suggest her lack of residence in Idaho at the time this action began except the fact that, after more than thirty years of continuous residence in this state, she was actually without the state for the period stated.” *19 Upon that state of facts this court held (we quote from paragraph three of the headnotes, which accurately states the holding of the court) : “The temporary absence from this state of one domiciled here will not be held a change of residence, unless to the factum of residence elsewhere be added the animus manendi, for a domicile, having once been acquired, continues until a new one is actually acquired animo et facto.” It is apparent the court was not called upon in Reubelman v. Reubelmann, supra, to interpret sec. 5, supra, nor to determine whether a person could establish a new residence in the State of Idaho for the purpose of prosecuting a suit for divorce while serving in the United States Army. Hence, Reubelmann v. Reubelmann is not in point here. We conclude appellant could establish a new residence in Ada County, Idaho, and, therefore, that the District Court in and for that county has jurisdiction of the divorce suit of Hawkins v. Hawkins. Peremptory writ must issue and it is so ordered. Dunlap, J., concurs.