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Susan D. Simmons
James W. Keenan
Simmons & Simmons Keenan & Ooten
Elizabeth, West Virginia Fayetteville, West Virginia
Attorney for Appellant Attorney for Appellee
The Opinion was delivered PER CURIAM.
JUDGE RISOVICH, sitting by temporary assignment.
2. The important facts in determining the domicile of a person who has more than one residence are the physical character of each, the time spent and the things done in each place, and whether or not there is an intention to return to the original domicile. Syllabus Point 4, Shaw v. Shaw, 155 W. Va. 712, 187 S.E.2d 124 (1972).
This is an appeal from the Circuit Court of Calhoun County. The circuit court dismissed a divorce complaint based on the ground of lack of jurisdiction. Before this Court, Mr. Ronald L. Predmore, plaintiff below/appellant (hereinafter referred to as Mr. Predmore), contends that the Circuit Court of Calhoun County had jurisdiction over the proceeding. Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we affirm the decision of the Circuit Court of Calhoun County.
Mr. Ronald L. Predmore and Mrs. Kim M. Predmore, defendant below/appellee (hereinafter referred to as Mrs. Predmore), were married on September 4, 1993, in Deerpark, New York.See footnote 1 1 Mr. and Mrs. Predmore had two children born out of wedlock.See footnote 2 2 After their marriage, the couple left New York.See footnote 3 3 Mr. Predmore testified at the hearing that the couple lived in Jackson County, West Virginia from July, 1996 to July, 1997.
When the couple left Jackson County they relocated to Mr. Predmore's mother's home in Calhoun County. Thereafter, the couple moved to Virginia leaving their children in Calhoun County.
While living in Virginia, Mrs. Predmore obtained a domestic violence Order of Protection against Mr. Predmore. At some point, Mrs. Predmore left Mr. Predmore in Virginia. She returned to Calhoun County and retrieved her children. She then left for New York.See footnote 4 4 Mr. Predmore returned to Calhoun County.
On December 10, 1997, Mr. Predmore filed the instant divorce complaint in Calhoun County. In his complaint, Mr. Predmore alleged that the couple resided in Calhoun County prior to their separation. Mrs. Predmore filed a pro se answer from New York. In the answer Mrs. Predmore contested having lived in Calhoun County. She stated: The residency in question to my knowledge, we resided at 34 Robin Lane, Ripley, W.V., at the Jackson County Housing. Not where the Plaintiff stated.
The family law master conducted a hearing on the issue of jurisdiction in the
Circuit Court of Calhoun County. Mrs. Predmore did not attend the hearing. Instead, her
counsel was present and challenged jurisdiction. At the conclusion of the hearing the family
law master ruled that jurisdiction was not established in Calhoun County.See footnote 5
The circuit court
adopted the family law master's recommendation and dismissed the divorce complaint for
lack of jurisdiction.
He testified that while residing in Jackson County, he and Mrs. Predmore received mail in
Calhoun County at his mother's home. There was some testimony that the couple had lived
in Calhoun County for two days before leaving their children with Mr. Predmore's mother
and moving to Virginia.See footnote 6
The circuit court determined that the evidence presented did not
comply with the jurisdictional requirements of W. Va. Code § 48-2-8:
Plaintiff and Defendant never cohabited in Calhoun County, West Virginia, under the meaning of this statute. Clearly, the Defendant never intended to remain a resident of Chloe, or she would not have moved, posthaste, to New York. The plaintiff has never established Chloe [as] his domicile either. There simply has been no action on the part of the Plaintiff which would indicate his intent to remain in Calhoun County. His infrequent trips to Calhoun County do not demonstrate to this Court that he has intended to make Chloe his domicile.
In addition to arguing that his evidence did establish jurisdiction, Mr. Predmore contends that the only evidence to contradict his proffer, was the non-evidentiary hearsay statements by Mrs. Predmore's counsel. This argument suggests that Mrs. Predmore presented no evidence to contradict Mr. Predmore's testimony. Therefore, jurisdiction was established by Mr. Predmore's testimonial evidence. There are two problems with Mr. Predmore's argument. First, the circuit court did have evidence submitted by Mrs. Predmore. That evidence consisted of her pro se answer denying that the parties lived in Calhoun County and her assertion that their last domicile in West Virginia was in Jackson County. Second, assuming that Mrs. Predmore submitted no evidence, Mr. Predmore is required to present some evidence to establish jurisdiction within the Circuit Court of Calhoun County. The evidence proffered by Mr. Predmore was insufficient for the circuit court to establish jurisdiction in Calhoun County.See footnote 7 7 In view of the evidence in the record, we are unable to conclude that the circuit court's factual determination was clearly erroneous and that its legal conclusion was an abuse of discretion.