Opinion
December 27, 1949.
In an action for divorce plaintiff wife moved for temporary alimony and counsel fees. Defendant made a cross motion to dismiss the complaint on the ground that the court does not have jurisdiction of the subject of the action because plaintiff is a nonresident of this State. Plaintiff's motion was denied and defendant's cross motion granted. Order reversed on the law and the facts, with $10 costs and disbursements, defendant's cross motion is denied, without costs, with leave to answer within ten days from the entry of the order hereon, and plaintiff's motion granted, but remitted to Special Term to fix the amount of counsel fees and temporary alimony. Defendant is domiciled in this State and was personally served with process in this State. The sole ground for defendant's cross motion to dismiss the complaint, and the determination of the Special Term, was that, since the parties were not married in this State and plaintiff entered the United States on a transit visa, she may not acquire the domicile necessary to maintain this action. Although residence, as used in section 1147 of the Civil Practice Act, means domicile or permanent abode ( de Meli v. de Meli, 120 N.Y. 485, 491; Clapp v. Clapp, 272 App. Div. 378), plaintiff may maintain this action, even though she is not domiciled in this State, because it affirmatively appears that she was actually sojourning or dwelling here at the time the offense was committed and when the action was commenced. (Civ. Prac. Act, § 1166; Gray v. Gray, 143 N.Y. 354, 359.) In any event, the mere fact that plaintiff entered the United States on a transit visa does not establish as a matter of law that she may not acquire a domicile. ( Schwallbach v. Schwallbach, 84 N.Y.S.2d 345, affd. 276 App. Div. 825.) Where the jurisdiction of the court is challenged because of plaintiff's nonresidence, the question should not be determined on affidavits, but should be reserved for the trial. ( Schwartz v. Schwartz, 253 App. Div. 924, and cases therein cited.)
In my opinion the record before the court establishes prima facie that at the time of the commencement of the action plaintiff was a resident of the State of New York (Civ. Prac. Act, §§ 1147, 1166);
Mere presence in the jurisdiction is not sufficient, even when coupled with a wish or desire to remain there when such desire is thwarted by a legal disability. The fact that the disability may possibly at some future time be removed, is insufficient to establish present residence or domicile. While the law undoubtedly is that domicile is a matter of intention, plaintiff may not be heard to express an intention contrary to present legal ability. (5 A.L.R. 298.) "It is a general rule that the domicil of one who is in itinere from an old to a new home continues to be the old domicil till the new one is reached." (5 A.L.R. 296.) Until a new domicile is acquired, the old one remains. ( Mitchell v. United States, 88 U.S. 350.) (See 1 Beale on Conflict of Laws, § 20.2: "An intent to change one's home may be conditional upon the happening of a future event.") There is no change of domicile until the event occurs. [ 194 Misc. 505.] [See post, p. 918.]