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WILLIAM G. ZINN v. GLADYS J. ZINN (04/13/84)

filed: April 13, 1984.

WILLIAM G. ZINN
v.
GLADYS J. ZINN, APPELLANT



No. 427 Harrisburg 1982, Appeal from the Order of the Court of Common Pleas of York County, Civil, No. 79-S-2393.

COUNSEL

Richard K. Renn, York, for appellant.

Steven K. Portko, York, for appellee.

Wickersham, Del Sole and Montemuro, JJ.

Author: Montemuro

[ 327 Pa. Super. Page 129]

This is an appeal from a decree granting plaintiff husband a divorce on the ground of indignities.*fn1 Appellant wife's initial contention is that this Commonwealth has no subject matter jurisdiction over this action. Having conducted a de novo review of the record, Moslen v. Moslen, 260 Pa. Super. 508, 394 A.2d 1042 (1978); we find it inadequate

[ 327 Pa. Super. Page 130]

    to resolve this question. We must reverse and remand for further hearing.

Appellee was born and raised in Pennsylvania. He then joined the United States Air Force and has never returned to Pennsylvania to reside, but has been stationed all over the world. Appellee has always designated Pennsylvania as his legal residence. Appellant was born in England and has never lived in Pennsylvania. After the parties were married on October 1, 1960, they resided together in Texas, Japan, Germany, Nebraska, the Phillipines, Greece, and back to Germany again. Upon nearing retirement from the Air Force, appellee selected transfer to Florida. The parties separated on January 13, 1979, and this action was filed on July 12, 1979. At the time the complaint was filed, appellee was living off-base in Florida and appellant was living in Delaware.

Pennsylvania has jurisdiction over this divorce if, at the time the action was filed, appellee had been a "bona fide resident" of this Commonwealth for a period of at least one year. 23 P.S. § 16 (repealed).*fn2 "Bona fide residence" means domicile; i.e., actual residence coupled with the intention to remain there permanently or indefinitely. McKenna v. McKenna, 282 Pa. Super. 45, 422 A.2d 668 (1980). Mere absence from a domicile, however long continued, cannot effect a change of domicile; there must be an animus to change the prior domicile for another. In re McKinley's Estate, 461 Pa. 731, 337 A.2d 851 (1975). Furthermore, there is a presumption that the original domicile continues and a person asserting a change of domicile must demonstrate such change by clear and convincing proof. Id.; McKenna v. McKenna, supra.

Since the concept of change of domicile requires some free exercise of will on the part of the person involved, McKenna v. McKenna, supra; the domicile of servicemen generally remains unchanged when temporarily

[ 327 Pa. Super. Page 131]

    stationed at a particular place while in the line of duty. Wallace v. Wallace, 371 Pa. 404, 89 A.2d 769 (1952); Turek v. Lane, 317 F.Supp. 349 (E.D.Pa. 1970). Thus, a serviceman's domicile is presumed not to change from his domicile at the time of enlistment. Turek v. Lane, supra. There is no doubt, however, that a serviceman may acquire a new domicile at any point during his military service if the circumstances show an intent to abandon his original domicile and adopt the ...


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