COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Kelsey and Senior Judge Willis 

Argued at Chesapeake, Virginia 

MICHAEL FREDERICK JONES 

 MEMORANDUM OPINION* BY 

v. Record No. 2003-02-1 JUDGE D. ARTHUR KELSEY 

 MARCH 18, 2003 

REBECCA LYNN WEBB JONES 

FROM THE CIRCUIT COURT OF YORK COUNTY 

N. Prentis Smiley, Jr., Judge 

 Roy H. Lasris (Lasris & Vannan, P.C., on 

briefs), for appellant. 

 James A. Carter, II, for appellee. 

 Michael F. Jones contends that the trial court lacked 

jurisdiction under Code § 20-97 to adjudicate this divorce 

proceeding because his wife, Rebecca L. Jones, was not a 

Virginia domiciliary during the six months preceding her filing 

of the bill of complaint. Finding no error in the trial court's 

decision, we affirm. 

I. 

 Michael and Rebecca Jones were married in Tennessee in 

1994. They lived in Tennessee at the time of the marriage, and 

both became employees of Cable Com, Inc. In 1998, the parties 

purchased a home in Lancing, Tennessee. At about the same time, 

 

 * Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
Cable Com transferred them to Florida. They lived in the 

Lancing home "for maybe twelve nights total" before moving to 

Florida. 

While in Florida, the couple obtained a bank account at a 

local branch of NationsBank (now Bank of America) and purchased 

a boat, which they registered in Florida. The couple, however, 

retained their Tennessee drivers' licenses and vehicle 

registration. They also listed their Lancing house as their 

home of record for employment purposes. 

In 1999, the couple accepted an assignment to a Cable Com 

job in Virginia. As far as Rebecca knew, the Cable Com contract 

in Virginia was "indefinite [in] nature." As a result, she 

intended to "remain in Virginia indefinitely" until her job 

required her to move again. Michael and Rebecca rented a house 

in Williamsburg for approximately one year and transferred their 

bank account to a local Virginia branch of NationsBank. Rebecca 

testified that she intended to pay income tax on her Virginia 

taxable income, though no evidence of actual payment appears in 

the record. 

On August 5, 2000, Michael moved out of the Williamsburg 

home and later moved back to Tennessee. Rebecca remained in 

Virginia and moved into an apartment with a one-year lease term. 

On August 11, 2000, Rebecca filed a bill of complaint for 

divorce a vinculo matrimonii in York County Circuit Court. She 

alleged, among other things, that she had "been an actual bona

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fide resident and domiciliary of the Commonwealth of Virginia 

for at least six (6) months next preceding the commencement of 

this suit." Michael filed an answer unconditionally admitting 

this allegation. 

Four months later, during a pendente lite hearing in 

December 2000, Rebecca sought exclusive possession of the 

Lancing house. During the hearing, Rebecca stated her desire to 

return to Tennessee when her job assignment in Virginia ended. 

Based on this contention, Michael objected to jurisdiction 

pursuant to Code § 20-97, which provides that "[n]o suit for 

annulling a marriage or for divorce shall be maintainable, 

unless one of the parties is and has been an actual bona fide 

resident and domiciliary of this Commonwealth for at least six 

months preceding the commencement of the suit." The trial court 

deferred ruling and directed that Rebecca be deposed on the 

issue of domicile. 

During her deposition, Rebecca acknowledged that Tennessee 

was still her home of record for employment purposes. She also 

retained her Tennessee driver's license, renewed her automobile 

registration in Tennessee, and identified Tennessee as the place 

where she kept her vehicle for insurance purposes. 

Despite repeatedly referring to Tennessee as her "home," 

Rebecca clarified that she considered Tennessee to be her "heart 

home," the place she was "born and raised." In this sentimental 

sense, she explained, "home will always be Tennessee . . . [n]o 

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matter where I'm at." "That is where I grew up. But I live 

here." With respect to the house in Lancing, Rebecca explained 

that she and her husband "have never lived there" and used it 

mostly as a vacation home. All utility bills for the Lansing 

house were sent to the couple's Virginia address. 

When directly questioned about her intent when she came to 

Virginia, Rebecca testified: 

Q: Okay, when you first came to Virginia, 

did you consider Virginia then to be 

your home? 

A: Yeah. 

Q: Okay. And so on October 8th of 1999, 

you believe you established a 

residency, a domicile in Virginia? 

A: Yes. We leased a house here. 

* * * * * * * 

Q: All right. When you filed the Bill of 

Complaint in Virginia, did you intend 

to be a Virginia resident and 

domiciliary and to use the court of 

Virginia when you filed for divorce 

here? 

A: Yeah. 

Q: And why did you do that? 

A: Because I live here. I mean, I can't 

go back to Tennessee, you know, and – 

that doesn't make any sense. I live 

here. 

Rebecca also testified that, after her separation, Cable Com 

gave her an opportunity to move to California, Kansas, or 

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Louisiana. When she learned that Michael was leaving the state, 

Rebecca elected to remain in Virginia. 

At a later ore tenus hearing, the trial court reviewed 

Rebecca's deposition and took additional testimony on the 

domiciliary issue. At the conclusion of the hearing, the court 

overruled Michael's objection to jurisdiction and found, "upon 

consideration of the testimony and the depositions," that 

Rebecca met the requirements of Code § 20-97. 

II. 

 For purposes of Code § 20-97, the "determination of 

domicile and bona fide residence is a mixed question of law and 

fact, reviewable on appeal." Adoteye v. Adoteye, 32 Va. App. 

221, 226, 527 S.E.2d 453, 456 (2000). Though the "fact finding 

component of that determination is given deference," we review 

the law component de novo. Id. Applying this standard of 

review, we find no error in the trial court's ruling. 

"Domicile contemplates living in a place with the intent to 

remain there permanently or for an indefinite period of time." 

Adoteye, 32 Va. App. at 226, 527 S.E.2d at 455-56 (quoting Rock 

v. Rock, 7 Va. App. 198, 202, 372 S.E.2d 211, 213 (1988)). Once 

acquired, domicile "continues to exist until another is acquired 

elsewhere." Talley v. Commonwealth, 127 Va. 516, 520, 103 S.E. 

612, 614 (1920). To acquire a new domicile, "there must be an 

actual abandonment of the old domicile, coupled with an intent 

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not to return to it, and also a new domicile acquired at another 

place, which can only be done by the union of intent and 

personal presence." Id. "Intent is to be inferred from 

declarations and from conduct." Guilfoil v. Hayes, 169 Va. 548, 

556, 194 S.E. 804, 807 (1938) (quoting Bowen v. Commonwealth, 

126 Va. 182, 190, 101 S.E. 232, 234 (1919)). When in conflict, 

evidence of "acts and conduct showing intent" may outweigh 

inconsistent "declarations or expressions of intent." Id. 

Under Code § 20-97, the requisite intent to be a Virginia 

domiciliary must exist during the six-month period immediately 

preceding the commencement of the suit. If Rebecca genuinely 

had this intent but decided to abandon her Virginia domicile the 

day after filing suit, she nonetheless would satisfy the 

statutory requirements under Code § 20-97. Our focus, 

therefore, must be on Rebecca's intent during the six months 

preceding the filing of her divorce complaint. 

We begin with Rebecca's declarations of domiciliary intent. 

In 1999, she left an ongoing job in Florida to come to Virginia. 

Rebecca testified that she "established a residency, a domicile" 

in Virginia and considered it to be her new home. The trial 

court could, and no doubt did, discount her sentimental remarks 

about Tennessee as merely an expression of an emotive bond with 

that state —— the place where she was born and raised. 

In addition to reviewing Rebecca's deposition, the trial 

court heard additional testimony at the ore tenus hearing. No 

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transcript of that hearing appears in the record. The trial 

court's statement of facts, however, states that its decision 

rested on "consideration of the testimony and the depositions." 

We place great weight on a chancellor's ore tenus findings, 

which are "peculiarly entitled to respect for he saw the 

parties, heard the witnesses testify and was in closer touch 

with the situation than the [appellate] Court, which is limited 

to a review of the written record." Ferguson v. Grubb, 39 

Va. App. 549, 557, 574 S.E.2d 769, 772 (2003) (citations and 

internal quotation marks omitted). 

We next turn to Michael's declarations concerning Rebecca's 

domiciliary intent. In the trial court, Michael made an 

unqualified admission in his responsive pleading of Rebecca's 

Virginia domiciliary status. Michael argues on appeal, and we 

certainly agree, that he cannot consent to subject matter 

jurisdiction of the court.1 The trial court, however, did not 

treat Michael's concession as a waiver of his challenge to 

jurisdiction. Nor do we. It is simply an evidentiary admission 

by a litigant to be given whatever weight the fact finder 

 

1 See generally Commonwealth v. JOCO Found., 263 Va. 151, 

160, 558 S.E.2d 280, 284 (2002); Nelson v. Warden, 262 Va. 276, 

281, 552 S.E.2d 73, 75 (2001). It is because subject matter 

jurisdiction "involves a court's power to hear a case" that 

challenges to it "can never be forfeited or waived." United 

States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781, 1785 (2002). 

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determines just —— much like a party admission in a deposition 

or one made from the witness stand. Cf. Davis v. Davis, 206 Va. 

381, 384, 143 S.E.2d 835, 837 (1965) ("Thus corroborated, the 

testimony of both the parties to the suit was entitled to be 

given practical effect, especially since there is not the 

slightest suggestion of collusion in the record."). 

After all, at the time of the admission, Michael knew of 

the Tennessee vacation home, the vehicle registration, and the 

discussions he had with his wife about the move to Virginia. 

Knowing that, Michael still admitted without qualification that 

she was a Virginia "resident and domiciliary" during the six 

months prior to the divorce complaint. If Rebecca's intent were 

different, Michael was certainly in a position to know. We thus 

find his admission has evidentiary weight and can be considered 

along with the other facts of the case. 

Finally, we consider Rebecca's conduct as it relates to her 

domiciliary intent. We agree with Michael that her Tennessee 

vehicle registration, her employment home of record, her 

sentimental attachment to Tennessee, and similar facts together 

raise a permissible inference that Virginia was a temporary 

sojourn for Rebecca. We do not believe, however, that this 

inference —— however strong it may be —— precludes as a matter 

of law the finding of Virginia domiciliary status given the 

other facts and circumstances in this case. In themselves, 

these discordant facts are not enough to require a fact finder 

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to disbelieve Rebecca's declared intent and those additional 

circumstances (such as Michael's concession) that corroborate 

her domiciliary intent. 

III. 

In sum, the evidence supports the trial court's conclusion 

that Rebecca Jones was a domiciliary of Virginia during the six 

months preceding the filing of her complaint. For this reason, 

the trial court correctly concluded that it had jurisdiction 

under Code § 20-97 to adjudicate this divorce case. 

 Affirmed.

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