Opinion
Record No. 1283-94-1
Decided: March 21, 1995
FROM THE CIRCUIT COURT OF YORK COUNTY, G. Duane Holloway, Judge
Jonathan A. Smith-George (I. Leake Wornom, Jr.; Patten, Wornom Watkins, L. C., on brief), for appellant.
Anthony L. Montagna, Jr. (Anthony L. Montagna, III, on brief), for appellee.
Present: Judges Barrow, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
We affirm the trial court's dismissal of the bill of complaint for divorce for lack of jurisdiction. The evidence supports the court's finding that neither the husband nor the wife, both German citizens residing in Virginia, was domiciled in Virginia at the commencement of the suit.
To maintain an action for divorce, one of the parties must be and have been "an actual bona fide resident and domiciliary" of Virginia for at least six months before the commencement of the suit. Code Sec. 20-97. "Domicile is residence at a particular place, accompanied by an intention to remain there for an unlimited time." State-Planters Bank and Trust Co. of Richmond v. Commonwealth, 174 Va. 289, 295, 6 S.E.2d 629, 631 (1940). An intent to remain in Virginia permanently or indefinitely establishes domicile. Howe v. Howe, 179 Va. 111, 118, 18 S.E.2d 294, 297 (1942). The burden of showing a new domicile rests on the party alleging it. State-Planters, 174 Va. at 295, 6 S.E.2d at 631.
Although the trial court made an explicit finding that the wife intended to return to Germany, it made no express finding regarding the husband's intent. However, viewed as a whole, the evidence supports a finding that the husband did not intend to remain in Virginia indefinitely. The husband and wife are both citizens of Germany, eligible to vote in Germany, and own property in Hamburg, Germany. They were married in Germany and their son was born there. The wife has a job in Hamburg for which she must request annually to be retained. When they came to Virginia, seven years before the husband filed for divorce, they intended to return to Germany. After three years, they purchased a residence in Virginia on which they paid real estate and personal property taxes. Their son attends school in Virginia. After filing for divorce, the husband moved to New York.
Implicit in the court's dismissal for lack of jurisdiction is its finding, based on these facts, that the husband failed to prove that he intended to remain in Virginia indefinitely. We cannot say that, as a matter of law, the evidence required the trial court to find that the husband was domiciled in Virginia. Therefore, we affirm the trial court's dismissal of the husband's suit for divorce.
Affirmed.