Kopasz v. Kopasz

MOORE, P. J.

Defendant appeals from a decree of separate maintenance awarded to his wife Edith on the grounds of the husband’s cruelty and desertion. He set up as an affirmative defense to the action a purported divorce decree he had previously obtained in the State of Nevada on July 3, 1945. This defense was rejected. The Nevada decree was held to be invalid and of no force or effect on the theory that the Nevada court was without jurisdiction. Such determination was based upon the trial court’s finding that appellant had never established a bona fide domicile in our sister state.

Appellant contends that the finding is unsupported by the evidence. Thus the primary issue is whether there is sufficient, substantial evidence in the record that will support the judgment. It is a truism that a finding on the issue of domicile, based upon conflicting evidence, is conclusive upon this court.

(Re Winzeler’s Estate,

42 Cal.App.2d 246, 249 [108 P.2d 720];

Estate of Peters,

124 Cal.App. 75, 77 [12 P.2d 118].)

Appellant and respondent have known each other since 1939 in New York. They were married November 5, 1942, at appellant’s army station in Colorado. After residing in Denver with her husband for 10 days, respondent returned to New York to complete her nurse’s training. Appellant was transferred to Camp Warren, Wyoming, at which location the

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parties lived together during March and April, 1943. On June 12,1943, appellant was sent to Las Vegas, Nevada, where his duty lasted until October. He was then sent to Camp Lee, Virginia, but returned to Las Vegas in March, 1944, for further military service and there remained until May of the same year when he was transferred elsewhere. His only subsequent visits to Nevada occurred in April, 1945, for the purpose of filing his divorce action, and again in July, 1945, to attend the divorce trial.

Appellant’s claim to domicile in Nevada is based upon such military residence there from June to October, 1943, and from March to May, 1944. Without question he could have established a domicile there, since the state of one’s domicile is primarily determined by one’s intention. Enlistment in the military service and compliance with the army’s orders with respect to locality of military service does not necessarily effect a change of the soldier’s legal domicile even though he be transported 2,000 miles from his place of enlistment.