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# 52 - Oregon Dissolution Jurisdiction: Residency vs. Domicile (ORS 107.075)

Monograph # 52                                                       August, 2009 -- ver. 1.6

OREGON DISSOLUTION JURISDICTION:
“RESIDENCY” vs. “DOMICILE” (ORS 107.075)

© Lawrence D. Gorin, Attorney at Law, Portland, Oregon

THE STATUTE

    ORS 107.075 (2).  When [irreconcilable differences are alleged as the ground for marital dissolution] * * * at least one party must be a resident of or be domiciled in this state at the time the suit is commenced and continuously for a period of six months prior thereto.

INTRODUCTION


    Although the text of ORS 107.075 appears clear and unambiguous in providing two separate and alternative bases for jurisdiction in marital dissolution cases (residency or domicile), Oregon case law tells us that the critical jurisdictional factor for marital dissolution purposes is “domicile,” not “residency.” 

    NOTE:  Application of modern-day rules of statutory construction to ORS 107.075  may yield a different result.  See PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993).  But until and unless that occurs, prior case law is controlling.

    In the context of ORS 107.075, being a “resident of Oregon" --- in the sense of one's physical presence within the state --- continuously for a period of six months prior to commencement of a proceeding for dissolution of marriage, in and of itself and without more, is not an independent basis for Oregon jurisdiction.  Under ORS 107.075, as construed by our appellate courts, without “domicile” in this state there can be no Oregon jurisdiction for marital dissolution purposes, regardless of “residency.”  This article attempts to explain the reasons for this conclusion.

HISTORICAL BACKGROUND

    ORS 107.075(2) in its present form was originally enacted in 1971.  Oregon Laws 1971, ch 280, § 5.  However, the language requiring that one party be a “resident of or be domiciled in” the state was first enacted by Oregon Laws 1965, ch 603, § 3.  Prior to that time the requirement was that the plaintiff be “an inhabitant of the state at the time the suit is commenced” and for one year prior thereto.  Former ORS 107.060.  The earlier language was construed in Zimmerman v. Zimmerman, 175 Or 585, 155 P2d 293 (1945), which held that the terms “resident” and “inhabitant” were used interchangeably and that both meant that the plaintiff must be domiciled in this state.  As explained in Pirouzkar and Pirouzkar, 51 Or App 519, 521-522, 626 P2d 380 (1981), this conclusion was based on the belief that domicile was a constitutional requirement for a state court’s exercise of jurisdiction for purposes of divorce.

    Indeed, as the United States Supreme Court has stated, in Williams v. North Carolina, 325 US 226, 65 S Ct 1092, 89 L Ed 1577 (1945), “Under our system of law, judicial power to grant a divorce - jurisdiction, strictly speaking - is founded on domicile.” 325 US at 229.  

    NOTE: Nonetheless, a divorce decree based on an unchallenged finding of requisite jurisdictional grounds rendered by a state court in a proceeding in which the defendant appeared and participated and was accorded full opportunity to contest the jurisdictional issues, and which is not susceptible to collateral attack in the courts of the state that rendered the decree, will be accorded full faith and credit by the courts of other states and will not be subject to collateral attack.  Sherrer v. Sherrer, 334 US 343, 68 S Ct 1097, 92 L Ed 1429 (1948).  In Sherrer, former husband, having appeared and participated in a Florida divorce proceeding, was barred from subsequently attacking the validity of the Florida divorce decree in an action brought in Massachusetts in which he alleged that wife had never established Florida as her state of domicile.

    In construing and interpreting ORS 107.075(2) in Pirouzkar and Pirouzkar, the Court of Appeals looked to the legislative history of ORS 107.075 and prior appellate court decisions, noting that the courts of Oregon have uniformly held that the term “resident of” as used in a jurisdiction statute means “domiciled in.”  Consequently, the court concluded that the provision of ORS 107.075 that appears to allow a party to satisfy the jurisdictional requirement simply by being a “resident of” Oregon continuously for six months is not an independent basis for jurisdiction.  Rather, what ORS 107.075 requires is domicile, with at least one party being domiciled in this state for six continuous months at the time of the filing of a marital dissolution petition.  Pirouzkar, 51 Or App at 523.

“DOMICILE” vs. “RESIDENCY”

    Distinction needs to be made between “domicile” and “residency.”  While domicile requires residency in order to be established, residency does not require domicile.  A person may be a “resident” of Oregon continuously for six or more months yet not be “domiciled” in this state.  However, a person cannot be domiciled in Oregon without ever having been a resident of Oregon.  To be domiciled in Oregon, the person must have resided here at some point in time that coincided with the intent to remain here permanently, to the exclusion of permanent residency in some other state.

    “Domicile” is a matter of individual choice and intent.  A person becomes “domiciled in this state” by residing in Oregon, however briefly, with the concurrent intent to remain in Oregon permanently and with no intent to permanently live elsewhere.  “To constitute domicile there must be both the fact of a fixed habitation or abode in a particular place and an intention to remain there permanently or indefinitely.”  Elwert v. Elwert, 196 Or 256, 265, 248 P2d 847, 36 ALR2d 741 (1952).

    A person who has never resided in Oregon cannot become “domiciled in this state,” regardless of the person’s future intent to do so.  Nor can a person become domiciled in this state simply by residing here, regardless of the length of stay, without the intent to remain here permanently to the exclusion of permanently residing elsewhere.  In essence, the equation is as follows:  Residence + Intent = Domicile.

    “Domicile, therefore, is made up of residence and intention.  Neither, standing alone, is sufficient for the purpose.  Residence is not enough, except as it is co-joined with intent, which determines whether its character is permanent or temporary; and clearly a mere intent cannot create a domicile.”  Elwert, 196 Or at 265, citing and quoting Reed’s Will (Pickering v. Winch), 48 Or 500, 503, 87 P 763 (1906).

    A person can have only one domicile at any one time, and until a new domicile is established, the previous domicile continues.  Doyle v. Doyle, 17 Or App 529, 522 P2d 906 (1974).  Consequently, if a person who is domiciled in this state departs Oregon and resides elsewhere, Oregon remains the person’s state of domicile so long as the absence from Oregon  is not coupled with an intent to establish a new domicile elsewhere.  Similarly, a person who is a domiciliary of some other state will continue to be a domiciliary of the other state even if the person moves to Oregon and commences to reside in this state, unless the residency in this state is coupled with the intent to abandon the former state of domicile and acquire Oregon as the person’s new state of domicile.

    For a change of domicile to occur, there must be (1) a change of residence from one place to another; (2) an intention to acquire a new domicile, and (3) an intention to abandon the old domicile.  Elwert, 196 Or at 265.  

    In Zimmerman v. Zimmerman, 175 Or 585, 155 P2d 293 (1945), the Oregon Supreme Court explained that residence and domicile, for Oregon divorce purposes, are not concepts that are independent from one another.  “To acquire a domicil [sic] of choice, a person must establish a dwelling-place with the intention of making it his home.  The fact of physical presence at a dwelling-place and the intention to make it a home must concur; if they do so, even for a moment, the change of domicil takes place."  175 Or at 592.

    Zimmerman also explains that a person cannot establish or change domicile without having the legal capacity to do so.  In Zimmerman, the husband came to Oregon from Ohio due to military assignment and was stationed at the Swan Island naval shipyard in Portland.  He resided on base for several years and then filed for divorce from wife, who remained in Ohio.  Husband claimed Oregon as his state of domicile.  Trial court and Supreme Court said no, explaining that, for military personnel, there is a further limitation:

    “To acquire a domicil [sic] of choice, one must have legal capacity so to do.  Conversely, a person can not acquire a domicil of choice by any act done under legal or physical compulsion. * * * [A] soldier or sailor, if he is ordered to a station to which he must go and live in quarters assigned to him, cannot acquire a domicil there though he lives in the assigned quarters with his family; for he must obey orders and cannot choose to go elsewhere.  If, however, he is allowed to live with his family where he pleases provided it is near enough to his post to enable him to perform his duty, he can acquire a domicil where he lives.”  175 Or at 593.

    Under Oregon law, residency, in the sense of physical presence at some point in time, however brief, is essential to domicile.  To acquire a domicile by choice, "it is universally held * * * that two essentials must concur and combine: (1) residence (bodily presence) in the new locality, and (2) an intention there to remain, to the exclusion of a domicile elsewhere.” Smith v. Smith, 205 Or 650, 655, 289 P2d 1086 (1955).  

ORS 107.075 - DOMICILE DOMINATES

    Pirouzkar and Pirouzkar, 51 Or App 519, 523, 626 P2d 380 (1981), perhaps best illustrates the Oregon rule that domicile rather than residency is the critical and essential jurisdictional element of ORS 107.075.  In Pirouzkar, both parties were “nonimmigant aliens” from Iran.  At the time wife filed her petition for marital dissolution in March, 1980, the parties had been residing in Eugene, Oregon, continuously for nearly three years.  They owned a home, held jobs, paid taxes, and their children attended school.  Nonetheless, in accord with case law interpretation, the trial court concluded that domicile, not residency, was the necessary element for Oregon jurisdiction under ORS 107.075.  The trial court then held that wife, because of her nonimmigrant alien status under federal law, was not and could not be an Oregon domiciliary and on that basis dismissed wife’s petition.  Wife appealed.  The Court of Appeals agreed that the critical and necessary element of ORS 107.075 is domicile, not residency, but then reversed the trial court’s dismissal, concluding that wife had the legal capacity to establish herself as an Oregon domicile and that she had in fact done so.  Further, “federal immigration law does not prevent the states from allowing a nonimmigrant alien such as wife to establish a domicile of choice for purposes of jurisdiction.”  51 Or App at 525.

    NOTE:  Author’s Comment.  The text of ORS 107.075(2) plainly and unambiguously states that at least one party to the dissolution proceeding “must be a resident of OR be domiciled in this state at the time the suit is commenced and continuously for a period of six months prior thereto.”  In construing this language as not establishing two independent bases for jurisdiction (residency OR domicile), the court in Pirouzkar relied directly on legislature history and effectively disregarded the plain words of the statute.  In the years since Pirouzkar was decided in 1981, the methodology employed by the courts for statutory interpretation, and the use of legislative history in doing so, has significantly changed.  Under the methodology outlined in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993), the text of a statute is the starting point for judicial interpretation and presents the best evidence of the legislature’s intent.  Legislative history will be considered by the court, as required by a 2001 amendment to ORS 174.020(3), but will be given only such weight, if any, as the court considers appropriate.  Ultimately, as explained in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009), “When the text of a statute is truly capable of only one meaning, no weight can be given to legislative history that suggests -- or even confirms -- that legislators intended something different.”  346 Or at 173.  While the interpretation of ORS 107.075 as expressed in Pirouzkar remains as binding case law, it is the author’s opinion that the current methodology for statutory construction, if applied to ORS 107.075, would most likely result in a different conclusion.

CONCLUSION

    In sum, notwithstanding the text of ORS 107.075, being a resident of Oregon continuously for six months prior to filing a petition for dissolution of marriage is by itself insufficient to establish Oregon jurisdiction for marital dissolution purposes.  The Oregon residency must be accompanied by “domicile,” i.e., the intent to remain permanently or indefinitely in Oregon to the exclusion of a domicile elsewhere.  Further, while at least one party to a marital dissolution proceeding in Oregon must be domiciled in this state when the petition for dissolution is filed and must have been so domiciled continuously for six months prior thereto, it is not necessary for the party so domiciled to be physically present or residing in Oregon when the dissolution petition is filed, nor even at any time during the preceding six months.  The concepts may be summarized as follows:

    1.  For purposes of jurisdiction of an Oregon court to render a valid judgment dissolving a marriage, Oregon must be the state of domicile of at least one party at the time the suit is commenced and must have been so continuously for a period of six months prior thereto.

    2.  A person is “domiciled in this state,” as that phrase is used in ORS 107.075(2), if the person resided in Oregon at some point in time, however briefly, that coincided with the person’s intent to remain in Oregon permanently, to the exclusion of a domicile elsewhere, and that intent continued intact and unabated for at least six continuous months prior to the filing of a petition for dissolution of marriage, notwithstanding the person’s absence from Oregon and residency in some other state.

    3.  Once domicile is Oregon is established, such domicile continues even if the person leaves Oregon and resides elsewhere, so long as the absence from Oregon is not accompanied by an intent to abandon Oregon as the person’s state of domicile.

    4.  If a person is a domicile of some other state, mere physical presence (residency) in Oregon, even though continuous for a period of six months, does not satisfy the jurisdictional “residency requirement” of ORS 107.075 unless such residency is accompanied by an intent or remain in Oregon permanently or indefinitely, to the exclusion of the person’s former state of domicile.

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Lawrence D. Gorin
Attorney at Law
6700 S.W. 105th Ave., Suite 320
Beaverton, Oregon 97008
Telephone: 503-716-8756
E-mail:  LDGorin@pcez.com
Website:
http://ldgorin.justia.net/index.com