The Washington times., 1934-07-30
ILLEGAL NEWS--RUL|NCS
Motion for Dismissal Based on Question
Of Fact Held Improper in Divorce Suit

@
can be made available under our
Federal practice only by answer.
See Stewart VS.. Masterson 131 U.
s. ISL; SO L. Ed. ia; Card VS..
Standard Cool Co. 202 Fed 351.
Therefore it is evident that the
question as to the Jurisdiction of
this court to grant the relief
prayed for in the bill Of COM
plant has not been properly
raised and hence that the motion
to dismiss should be overruled.
Coming now, however, to a con-
Sideration of the question as to
whether or not an Army officer
may under proper circumstances
acquire legal domicile within the
District of Columbia, unQueStion-
ably an Army officer may acquire,
and in the instant case the de-
fendant has acquired legal domi'
cile in the District of Columbia,
which is sufficient to meet the re-
quirements of section 971, of the
District of Columbia Code. AL.
though generally the domicile of
soldier in the military services re-
mains unchanged, new domicile
may be acquired if both the fact
and the intent concur. See 19
C. J. 419; Elk parte White, 228
Fed. 88; Ames VS.. Duryea, 6 LanS.
155, 157, affirmed 81 N. Y. 609;
Matter of Grant, SO Misc. 257, LA
N. Y. S. SGT; Matter of Cunning
ham, As Misc. 206: 81 N. Y. S.
974; Wood VS.. Fitzgerald, 3 Or.
568; Williams VS.. Saunders,
Cald. Reports go CTennD; Mooar
VS.. Harvey, 1913 Mass. 219; Elk parte
White, 228 Fed. 88.
In re Grant, supra, the court
held as follows:
"The ordinary modern rule
that a soldier does not change
his dOmicile by foreign service
is in any event mere preSump-
ton which may be rebutted in
any case; it is not properly
rule of law, citing Ames VS.. Dur
yea, supra"
In the case of Dicks VS.. Dicks,
decided by the Supreme Court of
Georgia and reported in lot S. w.
245, the court held that an officer
residing at Camp Benning,
Georgia, a Government Army post,
cannot acquire domicile therein,
unless permitted to do so by the
United States. The courts deci-
sion was based on the theory that
the Federal Government has ex-
elusive jurisdiction over Army
reservations, and determines who
shall reside therein. The court
goes on to say that "in this re-
spect and other respects Army
reservations differ from the Dis
trict of Columbia. The right Of
the soldier born in South Carolina
to change his domicile to the Dis
trict of Columbia would hardly be
questioned"
The court furthermore says "the
status of the District (meaning
the District of Columbia) differs
from that of the ordinary Army
post in that any person may re-
side within the former, and if a
citizen Of the United States, he
may acquire a domicile in the
District (meaning the District Of
Columbia)."
In Harris v. Harris decided by
the Supreme Court of Iowa and
reported in 215 N. w. 661, cited
by the defendant, again the ques-
ton involved was whether or not
an officer stationed on Army
post, even when he establishes
his family there, acquires a domi-
cile there. The court held to
the contrary, but goes on to say
If a soldier stationed at a Army
post is permitted to live outside
the post it was held in re Cum
ningham, supra, that such per-
son might acquire domicile
there There seems to be no doubt
that soldier may acquire a new
domicile apart from the Army and
the fact that he cannot stay in
the new home if called away to
the Army does not prevent his
forming the animuS manendi and
acquiring the domicile there" cit
ing Mooar v. Harvey. 1913 Mass.
219: Hodgson v. de Beauchesne,
IL Moore P S. 1856; President of
the U. S. v. Drummond, 33 Beaver
449: Atty. Gen. v. Pottinger, 80
L. j. eX 284.
A mans residence is where he
dwells with his family. In deter
mining the question of residence,
intention of the party cannot con-
troll the fact. Robinson v. Robin
son, 2 App. D. C. los.
Assuming that defendant has
properly presented his contention
to the court, that he has at all
times maintained his legal domi-
cile in the State of Pennsylvania,
the law is we'll settled that mere
floating intention to return to a
former domicile is not sufficient
in the eyes of the law. Newman
v. U. S., 43 App. D. C. SO.