# Brief for Petitioner — Rice v. Rice > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA0438614_1179%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Petitioner - **Published:** January 1, 1949 - **Citation:** 336 U.S. 674 ## Text LIBRARY SUPREME COURT, U.& © Pears eee IN. THE "Supreme Court ‘ the Unite States: e ah OCTOBER TERM. 198. ae ae" HER MOUENE. P.. RICE, Petiutaner as ies ; . A /LILLLAN: P.-RICE, Respondent aa ere mee ee ang genera ON WRIT OF CERTIORARI TO THE SUPREME | COl RT OF ERRORS OF THE STATE OF - CONNECTICUT f BRIEF OF THE PETITIONER Danipn D. MorGas, ‘ Tro as Fo Sry mor, ‘ . ; Pp ry ,e 2 ( OURS far Pehihione Q betas INDEX ; 2° SuByecr. LNpex. 7 . i. . %, 0.) PAGE Preliminary AMROIENIS . x. Mh ve ec es omen peers 1 Opinion of the ¢ ourt i SE PO Pare Peer ean ee tS Jurisdiction | pcecd ate od eaten eee z er re irre ae ntetie eres a Statement of the Seeing ere Sad Wine ornate Sarees 2 errors etd Lae ifs i. ee. aan pe ae eee a Argument | Rg apie ee iene eae gata esd ie ate oes IED 0s cs cia lec eet es ala aetiay Pecado ran we ee 1. -The evidence produced by respondent concerning the period of time from the marriage of respondent and * ~-the decedent until February, 144, was irrelevant and immaterial as support for the ttimate conclusion. Guo a 7L. The. evidence produced by respondent concerning the period of time subsequent to February, 144, and all mate conclusion of the trial court.-—— ==" ites t LI. oThe ce wiclusion reached ba the trial c art is hot qustit — | fied by the subordinate facts found 7.020... .. ee ee "IV. The entire opinion of the Shipeenie: | Court of Errors | of the State of Connecticut reveals: t.at the burden >was improperly placed upon petitioner to establish the validity of the Nevada decree.;;. <>... cee Tee | | Conclusion’ Pilea Ska as OREN ee ees: Kee Cases CITED 1. Balda in v. Baldwin, 168 P. 2nd 34 (Dist. Ct. of App. fnd-Dist:, Div. 2. Cal): ..:.. ee eat: Pee Cree Ee et 2. Baldzein v. Baldwin, 28 Cal. 2nd 406, 120_P. znd G70... ; s 3. Commonwealth ¥. Rerfield, 160 Pa, Super. 438, hb A , 2nd 423 sear aE ES ear AP Cig is 7 = eal ee cae “4. Cox v. Cox, 137 N. J. ‘Eq. 241. 44 A Qh 92. 3... 17° 3. Dation\ ten 270 App. Div. 269, 59 N.Y. Supp. 2nd Se eR Rete SORE, eee ws Ppp ao ere evs Gy am he Pseneecin v Pe} on nsyieanta; 825 U0, 82279, 66 8. Ct. 1118 4 » ~ 1 iF @ . proper inferences therefrom: do noi apper the ul ee ° a 10. HL. 12. 1-5, 14. la. “16, Eds 18. 1th. 20. INDEX oan oe.* ‘PAGE Lestin v. Estin, 63 nN re Supp. 2nd 476; 271 App. Div.’ . S29, 66 N.Y. Supp. 2nd 4 21; 206. N.Y. 308, 73°N.-E. ~ ' 2nd 113 ; 333 U. S. —, 68.8, Ct. 1218... 6, Tuners ‘ts «ty MO. Gildersleev'e V. Gildevsteeee. s§ Conn. 68%, 98 A. 684...5° 14 Paddock ¥. Haddock, 207 U.S. 562, 265. Ct R50. 8 Hall v. Hall, 190 Miss: 478, 24 So. 2nd 347-5.02...... < Oo Hollander v. Hollander, V3i N. J. Eq. 70.42 A. 2nd 6486 In-re Paul's Estate, 175 P. 2nd 284 (Dist. Cto of App.. 2nd Dist., Div, 2,Cal.)...... 0.4 Rep ee oe ae ee Oe Krieger v. Krieger, 333 U.S. —, 68.5. Ut. 1221. er Ts Kurski v. Kurski, 185 Mise. 97.55 N.Y. Supp. a 48. 7 McDonald V. Hartford Trust Co. 104 Conn, AGH, PQ (Ore . Aaa Aek ane ene Grrr, armartny we ar ri yar oe nee 16.17 " Meade'v. Mueller, 139 N. J. Eq. 494. 32 Ac Bnd 7 43 ck v. Messenger, USS Towa 367, 176 NW. 26000 1% Mills v.-Mals, 119 Conn. 612,479 A. 5.:.. 0... 00 os4- 145 Morgan, Morggn, 103 Conn, 89 1B NO 2d, we Mutual Life lusurance Co. v. Th Mimon. 45 : PSi Oey WER Oe Ate a pe ogee 49 Reed v. State, 148 Tex. Crime ptr, jg. > W. Pnd 660, 7 I aaa O'Rrie my Si nee i. 132m 12 AVEC WO tr hite 80 U + App. ae 158, 150 FF. ind Williams v. Not th Caroling, 313 U. G: PST 63 S.Ct. 207 6 I “oiams v. North Carolina, 325 U: S. 20h ae 5. (2. Me eee ee ere Vey Ty sas Re ee. £0, 1g, 38 Hdliams \. Osentim, 222 U. S. HTN, 34 S. ¢ t. 142....14,18 ¢ Constitt tion, Siaretes and Orne Nctuorities Crrep 20) Am. dur. 1053- 1035. er i as Sow yee she ep ene 12 Constitution of the Wnited States, Art. IVA Sho. 00......2.5, 98 Vudicial Code $237 (bh). 28 U.S. C: ACS344 (1) A eae eae 2 “Restatement.” ( ‘onflict of Laws, ° , $16. Mustration 4. p. 35... } Poted 15 £22. Comment b, 12. p46 | : gg ) Wigmore on Evidence, 2nd Fal. t828. Strae pp eOs-cb TS Supreme Court of the United States OCTOBER TERM, 1948 NO. 117 ~TLERMOINE PRICE, Petitioner LILLIAN PRICE, 4 Respondent Bs A ON WRIT OF CERTIORARE-TO THE SUPREME: » a ion “COURT OF ERRORS OF NIE STATE OF CONNECTICUT BRIEF OF THE PETITIONER. . : : es . PRELIMINARY STATEMENTS Opinion of the Court Below: The .opinion of the Supreme Court of Errors of the State oft Connecticut tethts case (Ropp Qe be yrs reported in bd | ce as - - ye ° $40), we \ raf ees ° ; ; aid oo Jurisdiction Phe jurisdiction of this Court isainvoked under section 257° 0h) of the Judicial Code (2s US. CA. $344 (b), now 28 LL SL CLA $1252. (3)).- ON tinal, itulgment in this Case Was rendered. Dy the “Supreme Court of Krrors-of thy: State of ( onmnecticnt Ix 1 49 o oe mowieh: said court found there to be no error upon the appeal of : thePease from the Superior { court. ot, the State ot Cannecticut bor, New Haven Countws whertin petitioner specially’ claimedgyt riglit . : : wig ‘og. ies 4 : under Article TV, $1, et the Gonstitution of the United States [by its decision, the ( onnecticut Supreme Court de med px titioner's aim, “Petition: for writ ot ceri artowas Med on fume 2b. ips anal Was allowed hy his . ‘ourt Oi October ‘1 PF sods el} 1) - Yt , : ° ‘ P ; f we: =a . . . a . . . Statement of the Case a ; eh . (in the tollowimg-reenal of the ifets no reference ty Me record dsmade as-to facts ineluded in the Report of the State Relerce oR pp Fey * Reterence to the record is made as te A facts nent cluded in’ saad report.) << : a ri eek Kes spondent and I the decedent, Herbert N Rice. ewer marys ‘ im 427, and trom then until beogitbiad TE2 hived afi and aren New Thaven, Comnectieut Lhe decedent was engaged in the auto trobile }usiness nm New Haven until Pume, Pie. whien, the lta » Wascdisconitinned and most of the equipment, sold orleased, In September, 142. he obtamed w artime chiplovmient ne Spring Held, Massachusetts, and lived m thar, gitvo until March; 144 Is February, 1 ra? the decedent tol d_pentioner thsi he haidl constulte upatiorney in Springticld with reperence toa divorce and that te ATLOTNEN lad: totd him: that it would be NECE>RATY ter Tnrryy toy rake his permanent lpine i) Nevada im order tee he inn ca withie! ivegree there its ‘id 4s tert petitioner that Hye fritenelor! cody cal 1! Nevada permanently whether or not he secured. a divetee there. ] he ‘cessful i nd ad ET Re wit that et he were suecesstui mm SCCUTING a diveres Ne ony lsh petitioner tomarry hinr CRO pp bessiady —-—v a ~ aay ee ee pe see a In Marel, 1944, the decedent left for Nevada, arriving in V Rene on March VST Pie commenced a divorce action «on May 5, 144, inthe Second Judicial Distrret ¢ ‘ourt of the State of Nevada, anand for the ( ounty of Washoe, personal service of said action‘ being § ran on. respondent in Woodbridge, Connecticut, on May Jz. ces ° Respondent's authorized two different atroritys im Reno > at appare ntl Witte rent times to enter a volunt ry appearance fer her in fet fcetion.-both: ot which. authorizations were revoked prior to: th ce tkite on which a de ! alt lecree could, have beeh entered CR. pore) On pane 15; U4 adeeFee Was entered in that.action granting the de ‘edenta divorce from ré aes Not Jater than the das tollow ing chiry of the decree, ecedgnt's Reno attor- nev was advised by the attomey me ate recetved the second authorization to enter a voluntary Y appearance. “tor re spondent that sod authorization had heen re instated. How mee fro tune was Hled GR PP SF he alfcedent netitioe pet raft-the decree, and she ani tee Rene, arrives these yy Tinh 3. 994 Om that..same day, the decedent an petition vc? Were married rae °* 77x Petore the -deerce Was eranted the decedem comeultedd has Nevada attorney with reference to the effect of His takene a wat time pebon Plerlong. California upon his Newacla repmlynie as tu Warted to tramtagn sch residence The Nevada arterney: ex . . plained te the decedent that it would bes “all right for hin take suche a qole ¢ K Y ne). Cin tuiv bo. rented the decedent and petitn mer went to Herlone z ver, Mo appearance - alifornia, where hes both had obtained wartime ‘cinplovment ar, the’ Sierra Irdnance nes of which-the town of Herlong ont Fely ecoms=tsted CR 1) Py). although the deegdetit Comtitedd te pur. rent on the ream he hed rented when he had first come to Ret ’ a4 a Sa Phe two had opened a joint hank account in Reno utah. 144 ‘ Viter they wont ‘to Perlong, the decedent aii? pigrttioner ert eniued fe ceenpy the roomom Repeson week-ends.. br September ~“~ d44, , petitioner sent for furniture that she had stored 4 n “New Haven, Connecticut, and used it to furnish the quarters that were provided for them at the. Sierra Ordnance Depot. In October. 1944, they attempted to register-as voters in Nevada, but could nor. do so because they had not resided in the state for one year. . ——, The decedent and petitioner were working at the Sierra Ord- nance Depot and living in their quarters there and at the time of the decedent?s death, December 23. 1944. . . . ° Teo determine the widow hood status of the parties bo his. action and> questions concerning inherit: mice of the decedent’ < property. respondent bre ght an action in the Supierior. Court f | omnecticut : | for New Haven. County, secking a-judgment declaring herself, to he the widow of the decedent and declaring the Nevada divorce to he colorable™ only. Due tothe death of thestral inde, the record Was referred ty a State Reteiee (Ro pp. 4-5) The Referee sub- netted a Rep rt CR pp. 9-0). which report was accepted hy the Tndge of the Superior Court, who rendered judgment for/r respond: cent. Petitioner appealed. to the Supreme Court of Errors of the, State of Conneeticut (Ro po 42) which heid that there was ‘ne error CROJ p.. 20) ane co aad ind estalfished the gudgment of tig Supe Ror ‘our © ham. > _ Errors Relied Upon The ¢ omnecuent Supreme Court erred in) allowmne the ultimate cenchision of the Superson ourt te he supported by only remote amd irrelevant evi dence. The ‘court erred in holding. that proof. abandonment of a former donticil ‘he a necessary. clement in th proof of a changesef domicil “Phe colt corre holding that the pudgment of the ss ck or (€ «urt contd not he reversed uniess the facts showed as oO matter of dae that bie ei Pit was... domiciled in, Reng ‘The court erred. im allowape th den on Cc oquestion of the validity of tne Nevada decree ie ‘s Sea 4: eSonete Phe court-erred inallaw ing improper inferences frort 3 ao e . . the evidence torstand as a basis for the ultimate conclusion reached > $1. of the. Constitution of the United States. ‘by the Superior Courts. The court further erred in alowing the statement that the decedent went to Nevada fe ir the: sole purpose . of 6btaining a divorce to-stand @s.an unreviewable finding of fact. The sylmination of all of the aboye errors was a: failure on the part of the ¢ ‘onnecticut Supreme Court to give the Nevada decree the full faith and credit to which it was entitled tinder Article IV ARGUMENT Summary: a Petitroner seeks to’show that the evidence preduced Is respord-, cnt Was incompetent te support the ultimate finding and to over- . - . . - ® - come the presumpiton of validity of the Nevada decree and that ‘the only proper inference that could be made, trom such evidence, was thas the Nevada court had jurisdiction to grant the divorcee - to the decedent. “The second point in. the argument ts that Ahe Connecticut Supreme Court. mm sust ining the ultimiat e cone lus sion of the Supe ior Court, utilized citcuitous reasoning and based its — decision on improper inferences from the facts found. l. The evidence produced by respondent concerning the period of tinie from the marriage of respé6ndent and the decedent until Februart, 1944, was irrelevant and immaterial as support for the ultimate conclusion. - The trial court admitted inth evidence a large volume jof testi-: many concerning the relations between respondent and the de- ae: cedent from the tve-ef-their marriage antit ate dk -cedent: Teft for: Nevada, especially with reference to the time subsequent to the date the decedent left New Haven to work 11) Springticld it was ‘ . . - : 4 ° A latmied by respe madent, PEC ved! mtoevidence by thie Super 2 Loourt ind tts reception prstified div the Wonnecticut’ Supreme Ceanuart ° prove the -all ‘gation in respondent’ s complaint that the dee sedlentt did not abandon his Connecticut domicil when he left for. Spring- - field (R. p. 216). Petitioner, contends. that, granting the admis- sibility of-such evidence for said purpose, it is irrelevant and too remote for the purpose of showing that the decedent's domicil.v was not changed to Nevada.. Tt was argued by respondent that ° Sueli evidence w: as pertinent to as the’ question due to’ the concept that domiciPis a question of intent, heyce evidence bei iring on the decedent’ s intention at any time was proper, However, that concept does not rege that no line ,for remoteness or irrelevancy canbe drawn. Domici! is a question of intent, but the.intention to make a certain dw cling place one’s home must concur with actual presence at that place: » Reagon. demands that evidence: concerning a chi ANE ar Jack of Change of damicil be: restricted to events connected with the actual ch: me of residence and Subsequent, to such change. Since Haddock Vv: Haddock 201 U. S. 162, 26S. Ct. B25, was overruled by this .: ourt in Tl itis v. North ‘Carolina, 347 US wt GAS. Ct. 207, the question of change ef domtcil, ‘unfettered by the concept of mi: urimonial domieil and jurisdictional fault, has © emerged as the sole issue in the determination of the validity of most. foreign ex parte “divorces. Decisions of courts of. other States which have had occasion to rule on. the question reveal that evidence relating to the tithe subsequent to the date that the party obt aiming the divoree removed to the State in ‘Which ‘the divorce . _ was obtained is determinative of the question ot the jurisdictional. foundation for the divorce: In Hall v. ‘Hall, 199 Miss: 478, 24 So, 2nd 347, the immediate resumption of residence and a medical practice in Mississippi after-a foreign divorce was held to pasttiy a finding that the divorce was invalid.” In Hollander v. Tollander, USteN. J. Eqs 70: 42 4. 2nd 648) the New Jersey residence of the: narty obtamime the divogce was interrupted only for a period, of | time hitthe more than. the residence’ requirement of the foreign e aie. ate \ fa eS third State soon after obGuriing ~ Sister-State dive ree, _ \. Sad 92. } the: ‘husband mie rely took an extended vacation. ae his pot States similarly, in Cormv. Cox, Asien. J. Eq. 2 ion as school principal. to obtain a foreign divorcee and resumed his posi-. tion inimediately. In both cases the New Jersey court held the divorces to be invalid. - An White v. White, 80 U.S. App. D.C. Lt, 150 bP. 2nd 157, in’ which it-was found that the. deferid: int * . went to the State of Florida solely’ for the purpose of Gbtaining a a divorcee, and With no bona fide intention of reniaining @ iy’said state permanently or indefinitely 9. 0... it was held: thet ‘the foreign divorce was invalid. “W here it Was clear, that the hhus- band remained in the foreign State for afew months ‘iter the divorce decree inerely because of profitable war. work and then ’ returned. to the State of his original domicil’ the I ennsylvania. - court held that the “divorce was invahid ; Commonwealth v. Ber- field, 160° Ba. Super, $38, 51 A. 2nd 523... In Kurski vo K UPSRI, “USS cMise. 1,55 N.Y. Supp. ud 74>, , the husband returned to “New Y ork and his former job six, days after the ‘divorce decree was entered without having severed. his members -hip i a “New York labor tinion ; the divorce Was held to be invalid. In Reed v. State, Hs Tex. Crim. 4s 187 Si W _ 2nd 660, the accused’ s cone" vietion for bigamy was sustained where it. was shown that he had heen domiciled jn Texas both before and’ afier obtaining a.diverce eth coke oe ames SS ~ < [ny ; sonic NX. Pennsylvama \ Bo U. 5; us, Oo SoCo 1s. this Court ‘sustained a ‘decision in. which: ‘the foreten. ‘dishes Was held to be inv. ali Where the hustiand, although he did not return to the’ State of his: pre-diverce donueil, “acquired a domnei) tn. a, A rule derived from. the. hate: cases would require that a divoree is invalid if the residence of the party obtaming the divorce in the State in which i it is Obtamed eoustitutes ‘merely “a tempor: ary: sojourn an ahat State, whichas most adequately proven by faets which show that he left the State soon atter the divorce and) resided and wa- . fomiciled in andther State, eitlter the State of his tormer domicil cor a third State, showing that either his former domicil was not “interrupted or that his stay in the State of the divorce was merely an inierhide in a change of domitil. |The evidence.’ perkuining te ting time subséguent.to and concerning his first ch: ange of residence isthe evidence whieh wotild be material. ey - This as, further emphasized by the cases in. which the sister- State divorces were held to be valid, the ev idence pertaining to the move to the State of the divorce and thereafter showing that the party obtaining the divorce did not reeurn immediately to the State of his former dk mic or move to a third State. In Dalton v. Dalton, 2 270 App. Diy. 269,59 N.Y. Supp. 2nd 6s, the husband i oe wife. separated inf 1938 after living ‘tog tether far +13 years. Vhe husband” went to Hlinois and obtgined a defi iult divorce after living there “four years. “At the time of the institution of. the divorce’ sutt the -husband’ was living, in W ashington, D: C.- The New York cogirt held tie divorce to be valid. In Balddzein V. Balid- aL, 2s Cal znd fO6.. 10 ‘on 2nd. G70, the, hushand obt: uned a divorce in Reno on December. 16, 1939, approximatelyetive montis ° after he hail leit Califoniia. *Bouh before and after the divorce the lursband Hived in a hotel and apartments in Reno. . ft was held. that the jurisdiction of tac Nevi ada, court Was supported by those facts. ee ; ‘ Perhaps the anest sig snitie: ant at all the cases involving this ques- “tion is Eslinn. Estin, W3N.Y- Supp. 2Hd 476, vin that case the * husband commnjenced his residence in’ Reno. i January, 14d, having topped. there on his wi ay to California, Pe commenced a divGree acti e. in April, 1945, ¢ He lived in hotels all the time if Reno, an i he paid poll and property taxes, had: his ‘car registereck , mn ‘and indicat eb & teder al ineome tax returns: that his residence was in Washoe ¢ ‘ounty, Nevada. The wife in. New York, sued. ona prior. New Yorks separation decree, paymenfs under whieh . were ur ride fi uult since the date of the Nevada divorcee o The New , & . . \ \ J « a ; tye i York coum considered two questions: (1) Was the ‘divgre valyl (2) Did the divorce terminate the husband's ob Hie ihtet nd uniler tin separation decree? "The court held: that the diver Was Valid ow The case was appealed on the second issue (271 \iip Liv om 66.N. Y. Supp. 2nd 421; 28 N.Y. 308, 73 Ne Eo and 115) arid was reviewed by this Court on that issne, 5:3, USL as ee 1213, along with the similar case Gf Krie ger Vo Krieger, O33 0 —, 68S. Ct. 1221- whieh second issue is not material nD "A ln the - “first written: opittien’ in the history; of that case. the court: saul (63 N.Y. Supp. 2nd at 482) : Re Ree pP . caer oF rom the. foregoing facts there scemy tebe he ‘doula that the defendant is now and singe January UAT hi ascbeen a bona fide resident of the State*of Nevada and there is ne evidence of-any probative force in P fhe record. which would. indicate anything to the contrary.” ) + bes hyper ‘ inre Pau{'s Estate, 175 P. 2nd ond (Dist. Ct. Of App: 2nd Dit. Diy. 3, Cal. ) contains acts which are strikingly simular te thie cast at bar. Hand W were married int 128 and lived: in Cali fornia, On July 7, 1945, W siarted a divorce: action in ‘aklces iit - and they executed a separation agreenht. - On July, 12: Lyi Li went to Reno; he filed) a complaint for divorce there one “pat 29, 1945, When he @eht to Reno he told friends he Was gon to look for a business location outside California, -Kefore th _ Nevada divorce was granted he wrote to -X; the woman he ~ut séquently married, that he liked Reno’ and was looking. for’ a building to purchase. Prior to the divorce. X went to Rene and had her personal bel mings shipped there: After the divorce ane! - after H and X- were married they returned te H's fornier home _ town in C ‘alifornia to collect money due H fram his former.prartnies on snecine of the winding up of. their business, but HE and > ¥ apparently decided to move back. They were living in ( aliforns: when H died. * W appealed from the appointment of Nas alanis istrator of JP s estate, Although W hai: filed an appearance 3) i . the Nevada divorce action, she was held not to he ‘estopped. from, FF o : Sickr | ; 10 = Pe ‘ = lainting the Mass ada Seon to be itrvalid. for want of jurisdiction hence the case can properly he compared with cases involving é detault @ @#. ‘ . Hae scoalds bring the action, the court held that the above facts sup ported the lower court's finding that [H- shad acquired “a Nevada omic Tf ts not known whether-ortrer the above case has been vorces. g° \iter deciding the preliminary question flat W ippe aled toa higsfier” California court, and ny would *sevve no- pin pose to aisctiss Whether orhot the decision of this ( court an Eesti v ES, 4, vpn, makes the jurisdictional question in the above: case . c ‘ : yew mist : ‘ << os . Because ine eC Sourl is open “to consider claims ..°,. #. thay * bak Qurts of one State have not given the full faith and eredit to’ Paes _jdgine tht of a sister-State that ts required ‘by Art. EV, $1, are PS e coMtiuution. "LP ihams v.. Nor thc ‘arolina, a20°U,S. a 233, 65-S. Ct: 1092, 1096) petitioner contends that the above cases illustrate a rule that is a logical outgrowth ef the second - N « vert which the Nevada decrees -impdrt -rests heavily upon the - . aesailadt." (925 O.-S: ‘at 233, 65 S.Ct. at 1007), and: becauss *saich westae of. jurisdiction: a eet “must be | lett, for fais deter mation hy appropriate thcciterd: and |. a finding pperse othe fecessary foundation: for any valid” sister-Sti ne "yadement — must be} amply supported in evidence = (H25 15, S.20-234, 65'S.4 tat 1697), a-State court mitist caretulls scrutinize all the evidence Offered to. upset a sister-St: ate Jeeree as: - : myoats rel i VANION and! miateriality. Petitroner contends thay “the second HW illia THIS CASE. Supra, requires that, in order to establish a diverce decree, ttmust be shown by material and competent eVvir dence Phar the person whe acquired | the “divorce established cé, homuoil an another ‘state soon thereafter “or réturiied todits former “to ats See tate iter circumat: ANCES that indi¢ate he was either making has. there dnew oor returning tot. The facts of the TH /rames ; We q # « aT Aas My yeh Cct periga facie. case of lack of jurisdictional basis for a sister-State ar { Hadas case, supra. Because “The burden of underminiig” she: . . e &e Mm oe ‘ *_4 case itself bear this out, forthere the guilty parties retarned 10 North Carolina immediately after they. obtained their Nevada decrees (325 U.S. at 235, 65°82 C1 at 1097). ‘TherefOre. the only relevant facts are those whi ch pertain to the decision to make the tirst change ‘of residence and the ‘tite “Subsequent tar suelit de cision; Lacts pertaining to a period prior.te such decision have no place in the proof of the lack of change of domicil. — ft has alre: dy been shown that the decedent's actions and statements prior to his . decision to depart from Springheld were adnaissible only to supp new Paragraph : 3 of respondent's complaint CGR. po 1). BF urthermore, the record: indicates that although said parag raph Wis denied in | petitioner's answer (R. JP. 9). petitioner was prepared to and-did admit that the decedent's s dome was in Connecticut until. the time that. he formed “the Intention of mnaking wes his heme (R* pp. 57-58), Nevertheless, the evidence was admitted over objection of counsel) - ¥ : 2 ¢. ¢ A IH. Theev idence produced m respondent concerning the gira period of time subsequent to February, 1944, and all 4 proper inferences therefrom do not. support the ulti- mate. conclusion of the trial court. The evielence pert: aining to whe al Ve Mentioned period produced . ( a i by the res vondent ap Wy ITSAqtT- ages + x nh ot the reesra. It Col- s¢ a tains a transcript of the Nevada divorce proceedings and’ the deposition of the decedent's attorney in Reno. The facts produced by such evidence are that the decedent intended. » remain in- definiteltsin Nevada and intended not to return to Connecticut, and that he consult lus attorney about the’ effect -on Tis Nevada residence of hit aking a Wat job in Herlong, California. Re- spondent clatms that the’ decedent’ s move to Merlong aifter the divorce indicates that his Nev ada residence did not amount te domicil. However, the decedent's attorney had told hime that i would be “all vieht’ for hime to take. a positiet at, the Sierra te than Nevada, See Dalton v. Dalton, 2 : i ie » ee - 12 Ordnarice Bene: “in Hertone CR. p. 52).. Such evidence -could scarcely permit an inference that the decedent's domicit was there- by changed, especially in view ot the tact that Kiar en consisted of nothing other than the: Army fase (R. po 179), ¢ that prior to his consultation witlf the attorney it hi id been ae CO NX pops. Div. 269, 272, of fea S Jase end GS, 41, and cases cited. . Il. The‘conclusion reached by the trial court is not justi- fied by the subordinate facts found. The Report of the State Refixec CR. pp. 5-7) as amended (R. p. 7) and corrected (R. p. 31) was accepted by the trial court in_ a declaratory judgment (R. p. #1). With the cexception of | Paragraph 5 of the Report. (R. p. 6), wherein it ts stated that the decedent went to Reno “for the sole purpose of obtaining 2... divorce™, Sothe-coneiasion reached in Paragraph 10 Of the Report comes as a complete surprise after the reading of Paragraphs Ito % The only proper evidence produced by respondent upon the question of the decedent's intention is his testunony im the divorce action. and his statement to his) Nevad’ attorney (R. pp. 45-° ioe ‘ 6), the remaining evidence produced “by. respondent having been admissible. for only a ‘special purpose. Hence, the only reason for including the statement in Paragraph + above referred to in the finding must have been the Referee’s appare disbelief of petitioner's statements. Disbelief of statements can- not be raised to the stature of evidence as to the opposite of such statements: This has been the Connecticut rulé. See If raltins shaw v. O'Brien, 130° Conn. 151, 153. 32 -A. end 39, and cases cited. “Tt would seem that the proper effect to be given a disbelief of the statemeyits is to remove them from considetation. See 20 Am. Jur. 1035-1055 as to testimony ini inifestly untrue or contrary to the laws of nature. However, at most the effect could be to 4 > establish an inference im this case thatCone of the motives of the oo “ decedent in going to and rein: ining in Nevada was to vet a-divorce and requrn. to Connecticut. Even if, arguendo; disbelief of the "statements were allowed to raise a suspicion that the decedent's sole motive in gonig to and remaining in Nevada were to obtain a divorce such suspicion should not be allowed the weight necessary to establish ‘the ultimate conclusion reached by the trial court... “Nor will a suspicion of fraud in the prdseeution of a divorce action by ‘such party in the foreign ghia avail to. defeat the foreign decree 2 00 Baldtein \ . Baldwin, 63 Po 2nd 54, 56 (Dist. Ct of App) 2nd: Elis: Div. 2. ary oe sae . w ) ‘ In Meade \ | Mueller. 130 N. J. Eq. 491, 52 Al 2nd*1a7 at 159, the court Aa { “No evidence was prodticed at the he: aringy, excdpt the docu- , meits aboye referred to, tG show that Mrs. Meade at the time the Nevada decree was gir: nted: was not domic eft 3 in Nevada. The defendant's proofs raise a suspicion that the purpose of the wife in going to Nevada was to obtain a divorce and that she did not intend to become ,a permanent resident there. : Mere suspicion, however, is not sufficient to justify this court in declaring that the Nevada decree’ is invalid in this state , . The fact that one of the motives for change of residence is to. take advantage of more liberal laws cannot prevent a change of domicil frem taking place. Restatement. Coirflict of Laces, See. 22, Comment b, 12, pp. 44. With the statement in. Paragraph 5 lof the Report dis regarded, ‘it is apparent that the story told by Paragraphs Pte Sof the Report is consistent only with the conclusion that the decedent moved ta Reno *to remain indefinitely. “The use of, the word’ "iNe definitely’. by the Referee indicates, that he’ felt that’ an intention, to remain indefinitely is something less than the intention necessary ~ to establish a danicit The rtile- of this Court is that an inten: e. . 14 tion to remain ina place indefinitely, coupled with actual residenci in the place, is sufficient to establish a change of domicil. “The. essential fact that raises a change of abode ty a change of domicil is the absence of any intention to live ‘elsewhere. . stSry on Conflict of Lazes,; Sec. 43,—or as. Mr Dicey yaits itin his admirable book-“Plietabsence of any present intention Of not residing permanently or muetontety im the new abode.” We allianis Vo Osentiam, 2 32 S. 619, 624, 34. St. 425 * Furthermore, this was the Connecticut rule ; Gditeesioewe _ GilderMeeve, >> Conn, 659, G4, U2 A, 6S4, G6. The only justt- fication available to the Connecticut Supreme Court of the ultimate finding hased upon the subordinate facts is that the Report dpes ‘not state what the decedent's intention was, but what he said it @vas (CR. p. 215), eventhough: there is no finding that such declata- ‘ tions of imtention Were untrue or disbelieved. The Connecticut Supreme Court justified the’ ultimate finding upon the apparent’ ‘disbelief of those’statements. CR. p. 215) and also held that if the Referee misinterpreted the meaning of the word “indefinitely” it was not prejudicial, because of his apparent disbelief of -the decedent's statement (R. p. 216). Certainly such a misinterpreta- . tiom would be material ; if the Retgree Leheved that the de¢edent intended to’ remain in Nevada indefinitely he would have t6 find that the decedent was domiciled in Nevada. See HWoilliams: \ Oseutuin, supra, Gildersleeve v. Gildersleeve, supra. Further- more, it-1s “evident® that the Connecticut Supreme Court justified | the timate finding: of lack of. domneil by: circuttous reasoning : —, \" the only licaie for saying: that the Referee disbelieved the de- — ae io of tlic Report. © This disbelief is used to” justify the fact that he decedent did not have a bona fide domicil ine Nevada. ) By holding that san inferepge: f from the ultimate fact ‘provides! the necessary subordinate’ facts to justify the ultimate fact. the final - cedent™ s statements is the conclusion reached by him: in Paragraph’. e Oo rear at =. conclusion of the ‘Referee is used by the ‘Con necti cut Supreme Court as a basis” for its own support. ~ T hat the decedent went’to Reno “f ir the sole purpose Of obtain, Jing a divorce? (Ro p. G) is Also considered by: the Connecticut Supreme Court to he a stbordinate fact CR’ pp. 215,216) and used. to justify theultimate cone lusion. It has alte: ady Ste argued that such a findingewas not a proper inference fram, the evidence. However, the decedent's: presence in Nevada \is undisputed, as the only ultimate fact to be founsl or conelu- leaving , ston to be drawn the state of mind of the decedent when he went » Nevada or while he was the re Therefore, to. state that he went there for the s cole purpose of obtaining a divorce is to state that his domicil was not changed. This Court has said that “State courts cannot “‘avoide review by this Court of their. disposition of a constitutional claim beGasting it in the form of.an Sippel icictae finding « of fact ae ; 4 lias voNorth Carolina, 325 UL 226, 23GE 65S. Ct. Lone, Lass, The use’of, such statement as.a tact: al basis for the ultimate ‘conclusion eras a reason for uphold- “ing such conclusion j is apother example of the circuitous reasoni ing employed by the Connecticut Supreme Court in its decision. . The State Referee apparently Jaid undue stress upon the fact that the decedent lived int a rented room in Reno, as the Report finds that. he “never establis hed a home in Reno. He intended to grey eee pi) (TtalieS added) The finding no doybt refers to the fact that do so in ‘the future if he did not like it at Herlong the decedent had statéd-that he desired to Inuld Or. purchase a house building in Rerio CR. pp. m3, LAT). However, one need not “occupy such a dwelling ql: ice in onger to establish a “home” in the denticiliary sense. ys aris “A Teaves the state m which he has been doniiciled and comes to No aleity mm another state. intending to make his home im the emty she lives im temporary lodgings, in hotels and ; clubs) He is “domiciled in NO Restatement. Comics of Laws, $14, Mustration bf “pss . 2 46 ‘ ~ e\ AV. ‘The entire-opinion of the Supreme Court of Errors. ‘of the State of Connecticut reveals that the burden ____ the validity of thie Nevada decree. / (tis quite true that: parts of the opinion of the Connécticut /“ . / Supreme Court contain accurate statements regarding its duty as’ eos a reviewing tribunal. However, the operative holdings of “the opinion, taken separately and- cumiulatively, show that the court - decided that petitioner had failed to est: ablish ‘the Nevada court's” jurisdiction rather than whether or not respondent had_preduced | sufficient evidence to overcome the presumption: “of such. -jurisdic= ‘tion, Ohh page 213 of the Record is the statement : “The question for solution is whether under the applicable principfes of law the referee ‘wast warraiited in. niiking this finding. and whether the court was justified in rendering its judgment thereon.” : ‘ “Then further along are ‘the following quot: ations “CR. Pp. 213, 214): ° ° . “Po constitute domicil the residence at the place chosen ‘for the domici! must be actual, and to the’ facet of residence there must be added the intention of remaining permanently; and .. that place ts thy domicil of the person in which he has’ volun-.. tarily fixed his habitation, not for a mere temporary ‘or special purpose, but with the present intention ‘of, making it ey ae dns home. unless something shalk happen to induce him. to adopt some other permanent home. A/i/ls v. Ais, 119 Conn. G12, 616, 179 ALS.” ‘When’ the parties left this State with the intention of never — “returning, their domicil in Connecticut was not_ thereby changed. The former domicil persists until a new one is - . ne -acquired.. McDonald v. Hartford. Trust Ca., 104 Corn, 169, 1s;, 1382 Ad. 902 7 Mills ve Mills; oe 3 _ Phere- fore proof of the acquisition of a new domicil of. choice is not Ow aseimproperly placed upon petitioner to establish | 5 all HC ADS ser shh el Fa) : 17 o= 5 ‘ © ‘complete. without svidence of the ahandemment of the old’: Morgan vo Morgan, a3 Ce mn. IS, 196 TRON 254. 7 As we stated in the MeDaona’l case. supra, one’s intention in. depart- ing from his domicil, not to return to it ci mstitutes no abargl- ‘onment at that time; ‘the Jaw. does not permit one to abandestis | nor recegnize an abandonment of a domicil until another has - * 4 : been. éstablished lt is then held that petitioner's ‘appeal could pot succeeds 117 view, of the above quotations, “unléss the subordinate facts are sufficient , toestablish as a matter of law that Rice had acquired a new domicil in Nevada.” ¢R. p 214). For subordinate facts to estab- “lish a conclusion aca matter of law they must. be such that they permit of no other conelifsion. ‘This ce rtainly is not the standard set up> by: this Contt in Williams vo North Carolina, 325 13S. 226,65 S$. Ct. 1092. nor is Tt assumed to he by the courts of other States (see I, supra) “Such-a requirement is tantamoeunt:to a shift of the burden of proof ee i To show that the-conclusion was suppotted by the’ subordinate _facts the Connecticut Supreme Court OR. p. 215) briefly recites the-facts, fouiid in Paragraphs 1 to 9 of the Referee’s Report CR. -~ Pp. oe), Stating as “subordinate facts” that the decedent went-to + Reno “tor the-sole purpose of getting a diveree’ and that he lived ima rented room im Reng. The propriety of designating. them subordinate facts has already been discussed (see TIT, supra). i ~ However, the effect thereat is to plac e upon petitioner, thé tm fair burden of disproving. or the pen: uty for having failed to disprove > . re spondent Ss entire case, = o° . * »: a8 The Connecticut Supreme Court implied that the duty of provitrg 6 » tbandonment of the Connecticut domicil’ was necessary to. show | a change of domicil (Ro pp, 2192214)" Likewise. the quotations from Messenger v. Messenger, USS Lowa 367, 373, 176 NW. 260, ° and Cox vo Coat hai No] Ra 241, RES AE AL 2nd 92, indicate that petitioner heed the burden of correborating the statements made by the decedent y vile in Nevada Fhe burden in this case, as 1s o stated inthe second Tf iterates cast vitfrd, Was Upon resp mdent to establish hy ample evidence that the decedent was not domiciled mm Nevada at the time he tommenced the divorce action: The. rule of this Court regarding change of de anicil ys stated in HE viiauns v Osentiom stpra, and ino HW alhanes v. Vor ¢ ‘arena, 324- US eed Dee SC ag SF 2 Lone, CaS n 1 tie NTTUCT irom the charge fo the yury, and the rule reeagnizes only rwo clements: (% j resifence att the. Hew place. aud 2 ua pres sent intention of remaining there: either permanently or inde finitely. A\ssiniing tat trebasatis,_ is 1 to State.et miuitd by t teclarait now unavailable are merely selt Ving statements ina case in whach such shate ot mand is i Issue: it still remains that the test fis tr whether or mot: respondent had Sts stained the: burden amposed upon he n does net mvolve corre horas tiem otesiteh «ts atements hy petitioner Such statem nts constituted svadence of the principal tact in issne and strould not hive been summarily dismissed a as of “quest ronatile evs lential value’ or as” prarels “yf serving statements especially when accomspanted hy evidence ot actions onsistent therewith ~ Mirtwald Bite Muswrane¢ i. Hillmon, 14a-U Bsn. 225264 wee Wigmore on bea ~ dence. 2nd d. 125, SWE2T pp. 105-4 Conclusion 4 ‘ ; - hat respeornderit, erty: a ditigant clamnms Petitroner contends t thatia sTster’ State dhverce decree was tivalid, Was required by Art AN. $4.08 the Consutunon of the United States) as ‘applied by this © Court and hy the courts of other states, to produce material aid comerete evidence that the decedent didi not AC IES a donnesl 1 Nevada Certamty and. predietahility are Of extreme importance | 1 Gases Of, this nature, and it ts ce mended that these teatures will He best preserved within’ the contnes (ot the Constetution, ‘ba requiring that the ststersrate judgment be cons ered & ald until. ane onl runt, ther } prodieed cwidence cbneerning She actions. md statements od the persan yn question tending: stromgdy to: shew 2 “yt that hi- residence WH thie syster st iit Wias-s hely lor-th yi obtaming adhvewce or for other purely teniperary purposes 3 ‘clear Wi this Case that all tei the evi lerice Talls- tar sbeert «ot that eriterion Petitioner, was resessaridy cottimed to phte charm that respondent's evidence Was insiitherent to Support the “ultumate = | conclusion: reachal | “dt ch ithd ke pointed out, diowever, that the | ; evidence produced | by petitioner wastconssstent only wath. ie con clusion that the decedertt was dormnaled tn Nevada Wha _ : ; ‘ ; é aie a decedehitealid and whit he said alter reaching Nevada were te 4 HN port, unt facts, allot which support petitioners chame - it alse should he posted cut that tiie © curtis under uty micite Cerrnee in Tevie wing ‘thie record | than was tReeState Reteree. aye rendé red N this hiding anil conclusion solely ipon a; verittetd trans rapt Gt thee evidence and the exhibits oo Rae oe Po ooo An examination et the entire opimen of the Supreme: Court of 7 y Errors:ot the State ot ¢ onpechicnst in the dight. of the yi lence _ PAL considered reveals sane the Peis aD itliar the (urt tre « to pasty P ce the. ultimate woncdu di hi: ahers Li} pector {amdirt os sapere vial a d. : “ SHogies al and Characte fs ibis Tay eu pire Maat everthing 6 ‘sail m Nevada concern nye ak hvonte. should be « dist Bete Land taketit . be evidegice of the -Gppesite ot what as said Byhally. fi coped a standsoto “the peer Rtn that all Ke Hiens ftakagr bes a chert upen C AMG adview Of lis lawyer Should, whev sucht acres and advice pa : Luin “tee divearce, Te: viewed with SpiciOn uel Chistivastcca prc hon th at cannot be tistatied << ; & eer fore, petitioner Te spect inilis Tests that this ‘ cont “reverse the pudgment of. the Surpretine Fontthof Brees ot the Srate of Comneenent amd alireet entey of pudgment fer person we, , , ‘ £5 : i cs Ives spoetfully sutimitted : ae . ; en Dante D Mon. J; i Je ‘ ye © TP tames be Sey: : : ie . ws. os : (lettre sed for Petitioners --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA0438614_1179%3A3. Public record. Not legal advice.