Opinion
June 9, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Allen T. Compton, Colorado Springs, for plaintiff in error.
Rector, Kane, Donley & Wills, Leo W. Rector, Colorado Springs, for defendant in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Roberta D. Collins brings this writ of error seeking reversal of a judgment granting a divorce to her husband, Garland L. Collins.
In his complaint for divorce, the husband alleged that he was a resident of the State of Colorado, presently residing in El Paso County. He alleged as grounds for the divorce extreme and repeated cruelty committed in the State of Colorado. Defendant answered; denied these allegations; and affirmatively alleged lack of jurisdiction.
The case was tried to the court as a contested action and both parties appeared and testified. The court granted a decree of divorce to the husband and ordered him to pay child support and attorneys fees.
In its decree, the court found that it had jurisdiction and that a divorce should be granted to the plaintiff upon the statutory grounds of mental cruelty committed within the State of Colorado.
The sole ground upon which the wife seeks reversal is that the evidence presented by the husband was legally insufficient to support the court's finding that it had jurisdiction.
This the jurisdiction of the court to enter the decree of divorce was dependent upon the husband's residence in the state is not disputed. In finding that it had jurisdiction, the court necessarily determined that the husband was a resident of this state.
At the time of the commencement of this action in August of 1967, the husband was a sergeant in the United States Army and had been stationed at Fort Carson, Colorado, since December of 1965. While stationed at Fort Carson, he had at times lived on the base and at other times lived in an apartment in Colorado Springs. When the case was tried in April of 1968, he was still on duty at Fort Carson. Prior to coming to Colorado, he had served in the armed forces for sixteen years and had been stationed in Vietnam, Germany, Korea, Texas and Kansas.
The evidence at the trial did not disclose where he resided before he came to Colorado. There is no evidence that he acquired a legal residence in any of the place where he was stationed before he came to Colorado. The evidence indicated that he intended to remain in Colorado for an indefinate time and until his military obligations required him to move. He had no fixed or certain purpose to return to any former place of abode.
The essential fact that changes a place of abode to a place of residence is the absence of any intention to live elsewhere. Williamson v. Osenton, 232 U.S. 619, 34 S.Ct. 442, 58 L.Ed. 758. The record discloses the essential concurrence of physical presence and the requisite intention to establish a legal residence in Colorado.
The judgment is affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.