boddy said:
What is the name of your state? TX
Does anybody know of a web site that I can access for information about
a particular court case. The case is Tucker v Tucker, 277 CAL. Rptr 403
(Court app. 1991). I'm currently in a situation with an ex-wife that deals with a jurisdictional issue with the state of California. Any information would be greatly appreciated.
My response:
For jurisdictional purposes, "domicile" requires both physical presence (residence) within the forum state and the intent to remain there indefinitely. [Smith v. Smith (1955) 45 Cal.2d 235, 239, 288 P.2d 497, 499; see
Marriage of Dick (1993) 15 Cal.App.4th 144, 153, 156, 18 Cal.Rptr.2d 743, 746, 749;
Marriage of Tucker (1991) 226 Cal.App.3d 1249, 1258-1259, 277 Cal.Rptr. 403, 408]
The maintenance of a "residence" within a state is not the equivalent of establishing a "domicile" there.
"Residence" is simply a place where a person lives, even temporarily, and regardless of intent to remain. A person may have several residences at any point in time; but he or she may have only one domicile at a given time. [Smith v. Smith, supra;
Marriage of Tucker, supra, 226 Cal.App.3d at 1258, 277 Cal.Rptr. at 408; see also Marriage of Amezquita & Archuleta (2002) 101 Cal.App.4th 1415, 1419, 124 Cal.Rptr.2d 887, 889]
Neither physical presence in nor absence from the alleged domiciliary state is alone dispositive. [See Marriage of Amezquita & Archuleta, supra, 101 Cal.App.4th at 1421, 124 Cal.Rptr.2d at 890--H remained domiciled in New Mexico even though stationed in Calif. on military assignment for several years]
Several factors may be probative of the essential "intent to remain"--including the situs of:
• home ownership/current residence;
• bank accounts;
• voter registration;
• driver's license and car registration;
• club, church and political memberships;
• tax return filings;
• mail receipt;
• business affiliations. [See Marriage of Leff (1972) 25 Cal.App.3d 630, 642, 102 Cal.Rptr. 195, 202-203;
Marriage of Tucker, supra, 226 Cal.App.3d at 1259, 277 Cal.Rptr. at 408-409; Marriage of
Dick, supra, 15 Cal.App.4th at 152, 156-157, 18 Cal.Rptr.2d at 746, 749; Harding v. Harding, supra, 99 Cal.App.4th at 636, 121 Cal.Rptr.2d at 457-458]
When several domestic relations-related issues are joined against a nonresident military member, two different jurisdictional standards might apply; in turn, California courts may both have jurisdiction over nonpension issues in the dissolution proceeding and at the same time lack jurisdiction to divide the military member's pension under the USFSPA. [Marriage of Hattis, supra, 196 Cal.App.3d at 1170, 242 Cal.Rptr. at 415;
Marriage of Tucker, supra, 226 Cal.App.3d at 1256, 277 Cal.Rptr. at 406-407]
A motion to quash service of summons is not required to preserve the USFSPA jurisdictional defense . . . since the defense is more akin to the doctrine of forum non conveniens (which need not be raised before filing a responsive pleading) than to any lack of personal jurisdiction. [
Marriage of Tucker, supra, 226 Cal.App.3d at 1256-1257, 277 Cal.Rptr. at 407-408 & fn. 1- - H preserved USFSPA objection by allegations in response and accompanying declaration (also commenting that USFSPA actually provides military personnel with an objection "which goes to the subject matter jurisdiction of the court and which in general may be raised at anytime")]
Indeed, unless the issue is raised within the 30-day response period (by motion to quash the proceeding, any defect in the § 2320 residency requirements is waived. [See
Marriage of Tucker (1991) 226 Cal.App.3d 1249, 1256, 277 Cal.Rptr. 403, 407]
IAAL
