2010 VT 38


Conley v. Crisafulli
(2009-368)
 
2010 VT 38
 
[Filed 14-May-2010]
 
NOTICE:  This opinion is subject
to motions for reargument under V.R.A.P. 40 as well as formal revision before
publication in the Vermont Reports.  Readers are requested to notify the
Reporter of Decisions, Vermont Supreme Court, 109 State Street, Montpelier, Vermont05609-0801 of any errors in order
that corrections may be made before this opinion goes to press.

 
 

2010 VT 38

 

No. 2009-368

 

Kathleen Conley


Supreme Court


 


 


 


On Appeal from


     v.


Bennington Family Court


 


 


 


 


Rino Crisafulli


March Term, 2010


 


 


 


 


David A. Howard, J.


 

Patricia G. Benelli
of Dakin & Benelli, P.C., Chester, for Plaintiff-Appellee.
 
Richard J. Windish and Susan J.
Manley of Hayes & Windish, Woodstock, for 
  Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
REIBER, C.J.  Husband appeals the decision of the Bennington
Family Court granting a divorce and denying his motion to dismiss wife’s
divorce action for lack of jurisdiction.  Husband alleges that wife, who
admits to moving to Vermont in order to get a
divorce, does not possess the requisite intent to abandon her New
 York domicile such that the Vermont
trial court had jurisdiction over her divorce proceeding.  We affirm.
¶ 2.            
Husband and wife resided as a married couple in New York.  In 2007, wife filed for
divorce in New York.[1]  In 2008, wife moved to Bennington County, Vermont,
where she rented an apartment.  Wife continued to work in Albany, New York,
however, commuting between her apartment and her office.  Additionally,
she continued to teach an exercise class in Albany
twice a week, and on those nights she stayed at her mother’s house in New York.  Later
that year, wife moved to have the New
  York divorce suit dismissed.  Once the New York suit was dismissed, wife then filed for divorce
in Vermont.
 Husband responded by filing a motion to dismiss for lack of jurisdiction,[2] claiming that wife moved to Vermont for
the sole purpose of taking advantage of Vermont’s divorce laws and that wife
was therefore not a resident of Vermont for purposes of Vermont family court
jurisdiction.  After a hearing on the issue, the trial court denied
husband’s motion for dismissal based upon a finding that wife was a Vermont resident and
that the trial court therefore had jurisdiction.  Husband moved to take an
interlocutory appeal, but the trial court denied the motion.  After wife
had resided in Vermont
for a year, the trial court entered a final order of divorce.[3]  Husband now appeals the divorce and
argues that the trial court erred in denying his motion to dismiss for lack of
jurisdiction.  According to husband, wife does not have the requisite
intent to give up her New York
domicile.
¶ 3.            
Husband’s sole argument on appeal is that the trial court should have
granted his motion to dismiss for lack of jurisdiction.  We review a trial
court’s denial of a motion to dismiss for lack of subject matter jurisdiction
“de novo, with all uncontroverted factual allegations of the complaint accepted
as true and construed in the light most favorable to the nonmoving party.”
 Town of Bridgewater v. Dep’t of Taxes, 173 Vt. 509, 510, 787 A.2d 1234, 1236 (2001) (mem.); see generally V.R.C.P. 12(b)(1).  A court may consider evidence outside the
pleadings in resolving a motion to dismiss for lack of subject matter
jurisdiction, and we review these factual findings for clear error.  See Makarova v. United States, 201 F.3d 110, 113
(2d Cir. 2000) (discussing standard of review for motions to dismiss for lack
of subject matter jurisdiction under F.R.C.P. Rule 12(b)(1)).
¶ 4.            
In Vermont,
domicile is a question of fact.  Duval v. Duval, 149 Vt. 506, 510, 546 A.2d 1357, 1360 (1988), overruled on
other grounds by Shute v. Shute, 158 Vt. 242, 607 A.2d 890 (1992).[4]  Findings of fact will not be set
aside on appeal unless they are clearly erroneous.  Id.  Deference is given to
the trial court due to the “unique position of the trial court to assess the
credibility of the witnesses and the weight of all the evidence presented.”
 Bonanno v. Bonanno, 148 Vt.
248, 250-51, 531 A.2d 602, 603 (1987).
¶ 5.            
Vermont
family court jurisdiction can be invoked after six months of residency:
 
A complaint for divorce or annulment of marriage may be brought if either party
to the marriage has resided within the state for a period of six months or
more, but a divorce shall not be decreed for any cause, unless the plaintiff or
the defendant has resided in the state one year next preceding the date of
final hearing.  Temporary absence from the state because of . . . employment
without the state . . . or other legitimate and bona fide
cause, shall not affect the six months’ period or the one year period specified
in the preceding sentence, provided the person has otherwise retained residence
in this state. 
 
15 V.S.A. § 592.
 However, “[r]esidency, for purposes of divorce
jurisdiction, is more than mere presence within the state.”  Duval, 149 Vt.
at 509, 546 A.2d at 1360.  In the context of a divorce proceeding,
the concept of residency “is encompassed within the legal definition of
domicile.” Id.
¶ 6.            
As the trial court noted, domicile is an “abode animo
manendi, a place where a person lives or has his
home, to which, when absent, he intends to return and from which he has no
present purpose to depart.”  Tower v. Tower, 120 Vt. 213, 221, 138 A.2d
602, 607 (1958).  To change domicile, “there must be a relocation to the new residence and continued dwelling
there, coupled with an intention of remaining there indefinitely; neither
physical presence alone nor intention alone is sufficient to effectuate a
change of domicile.”  Duval, 149 Vt.
at 509, 546 A.2d at 1360 (citing Walker v. Walker, 124 Vt. 172, 174, 200 A.2d 267, 269 (1964)).
 This Court has further clarified that “[a]n essential ingredient of the
intent to acquire a new domicile is the intent to give up the old
domicile.”  Walker, 124 Vt. at 174, 200 A.2d at 269.
¶ 7.            
Husband alleges that wife lacks the “essential ingredient” of intent—the
intent to give up her old domicile—and that her actions to acquire a new
domicile are a sham.  Wife asserts that her words and actions show
that she has in fact abandoned her New York
domicile in favor of becoming a domiciliary of Vermont.
¶ 8.            
As we have noted, “the troublesome aspect of domicile is that it deals
not only with acts, but with states of mind.”  Duval,
149 Vt. at
509, 546 A.2d at 1360 (quotations omitted).  In previous cases
dealing with the issue of domicile, this Court has stated that intent may be
proven “by the acts as well as the words of the person involved.”  Bonneau
v. Russell, 117 Vt.
134, 137, 85 A.2d 569, 571 (1952).
¶ 9.            
In the context of determining domicile for personal jurisdiction, Vermont courts have found
certain facts determinative, including the state where the individual has his
or her driver’s license, registration, property, and job.  See, e.g., Godino v. Cleanthes, 163 Vt. 237, 240, 656
A.2d 991, 993 (1995) (holding that “[d]efendant’s
retention of the home, license, and registration evidence the . . . intent to
keep the [Vermont] domicile” despite her residing in Florida for a year and a
half before the lawsuit and seeking state services, leasing an apartment, and
holding a full-time job in Florida); Duval, 149 Vt. at 510-11, 546 A.2d
at 1360-61 (describing similar factors that would help to determine domicile in
child custody cases).
¶ 10.         Importantly,
this Court has stated that motive in moving to take advantage of more favorable
divorce laws does not “frustrate[] the attempt to
alter domicile.”  Walker, 124 Vt. at 175, 200 A.2d at 270.  The reason for a change in domicile
does not matter as long as the intent to establish the new domicile is valid.
 Id.
 Motive, however, may “bear on the question of the validity of the
intention to unconditionally assume the new domicile.”  Id.
¶ 11.         In
this case, the trial court found that wife gave up her New
 York domicile and intends to remain in Vermont indefinitely.  In reaching this
conclusion, the trial court relied on its findings that wife has lived in
Vermont since June 2008, has a Vermont operator’s license, voted in Vermont in
2008 and 2009, paid Vermont taxes, and currently leases a residence in Vermont
which she intends to renew.  Additionally, the trial court determined that
wife’s testimony supported an intent to remain in Vermont.  The
record reveals that, on at least two occasions during the hearing below, wife
stated that she has “no current plans to move out of Vermont” and has no plans to move following
the divorce. Thus, although the trial court recognized that wife “openly
acknowledges that her sole reason for coming to Vermont was to take advantage
of Vermont’s no-fault divorce law,” that wife has family and a job in New York,
and that wife spends two nights per week at her mother’s home in Albany after
teaching exercise classes, the trial court still came to the conclusion that
wife intends to remain in Vermont.  In the final order of divorce, the
trial court found again, based on evidence provided during the divorce hearing,
that wife was a Vermont
resident.
¶ 12.         We
find no clear error in the trial court’s findings.  The factors the trial
court used to make its findings were similar to those used in previous cases
involving divorce, child custody, and personal jurisdiction.  Based on the
evidence provided, it was not clear error for the trial court to find that wife
“does intend to give up her New York domicile
and to remain in Vermont
indefinitely.”
¶ 13.         Husband
argues that upholding the trial court’s ruling would be tantamount to condoning
or even encouraging forum shopping.  Wife has every right, however, to
move to another state because she prefers its laws.  If wife qualifies as
a resident according to Vermont law, as we find that she does, wife deserves
the benefits of being a resident—including invoking the jurisdiction of
Vermont’s courts.
¶ 14.         In
summary, the trial court found that wife intended to become a domiciliary of Vermont and to abandon her New York domicile, and we find no clear
error in this finding.  We therefore defer to the trial court’s judgment
and affirm the divorce order and the ruling denying husband’s motion to dismiss
for lack of subject matter jurisdiction. 
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 





[1] 
Causes of action for divorce in New
  York are fault-based. In Vermont, divorce is
available without a finding of fault.  See 15 V.S.A. § 551(7) (stating that divorce may be granted “[w]hen a
married person has lived apart from his or her spouse for six consecutive
months and the court finds that the resumption of marital relations is not
reasonably probable”).


[2] 
Husband’s motion alleged a lack of subject matter jurisdiction and a lack of
personal jurisdiction, as well as improper venue.  Wife initially filed
for divorce in Washington County,
 Vermont.  Wife believed it
to be the appropriate forum based on her participation in Vermont’s
“Safe at Home” program, which provides program participants with, among other
protections, a substitute Montpelier (WashingtonCounty) Post Office box address in order
to maintain the confidentiality of their actual addresses.  See 15 V.S.A.
§§ 1150-1160.  The parties agreed to a venue transfer to BenningtonCounty, where wife actually
resides.  Because we affirm the decision of the trial court denying the
motion to dismiss for lack of subject matter jurisdiction, finding that wife is
domiciled in Vermont,
we also hold that the trial court had personal jurisdiction to grant the
divorce.  See Poston v. Poston, 160 Vt. 1, 5, 624 A.2d 853, 855
(1993) (“Each state, by virtue of its command over its domiciliaries
and its large interest in the institution of marriage, can alter within its own
borders the marriage status of the spouse domiciled there, even though the
other spouse is absent.” (quotation omitted)).
 


[3] 
The trial court granted the divorce based on its finding that wife and husband
had lived apart for six consecutive months and that the resumption of marital
relations was not reasonably probable.


[4] 
Shute recognized that the alternate ground provisions of the Vermont
Uniform Child Custody Jurisdiction Act (UCCJA) conflicted with the home state
preference of the federal Parental Kidnapping Prevention Act (PKPA) when the
child has a home state other than Vermont. 
158 Vt. at
247, 607 A.2d at 893.  The Shute court
held that the PKPA preempted the UCCJA provisions that conflicted with the PKPA
such that the best interest of the child was no longer controlling in a custody
case if the child had a home state.  Id.  Shute therefore overruled Duval to the extent that Duval “expressed no clear preference for home state jurisdiction
when Vermont
is not the child’s home state.”  Id.
at 248, 607 A.2d at 894.  The language in Duval
concerning determinations of domicile, however, is still good law.



