Domestic Relations – Divorce – Civil Practice – 6 Months’ Residence – Military

Huston v. Huston (Lawyers Weekly No. 11-16-0525, 17 pp.) (Sam Ervin IV, J.) Appealed from Cumberland County District Court. (George J. Franks, J.) N.C. App. Unpub. Click here for the full-text opinion.

Holding: Even though the plaintiff-husband – a native of Alabama –  first tried to get a divorce in Alabama, since the husband has lived in North Carolina for years and intends to remain here, the trial court correctly found that it had jurisdiction over the husband’s claim for an absolute divorce.

We affirm the divorce judgment.

Facts

Both parties are Alabama natives. The plaintiff-husband is in the U.S. Army and has been stationed in N.C. for all but six months since 2000.

The parties married in 1999 and lived in North Carolina until after they separated in 2008.

On Feb. 16, 2009, the wife filed an action in Cumberland County District Court, seeking custody of the couple’s four children, child support, alimony, and equitable distribution. On March 11, 2009, the court awarded temporary custody, post-separation support and temporary child support to the wife, and the wife received permission to return to Alabama to live with her parents. The wife has resided in Alabama since that time.

On May 8, 2009, the husband filed a petition for divorce in the Circuit Court of Colbert County, Alabama. The husband alleged that “he has been a bona fide resident of the state of Alabama although domiciled in other states.” After the parties failed to reach a settlement at a mediation session, the Alabama divorce petition was dismissed.

On Oct. 7, 2009, the husband filed this action for divorce. The wife filed an answer denying that the husband was domiciled in North Carolina.

The trial court found that the husband was a resident of North Carolina and granted the divorce.

Discussion

Under G.S. ¤ 50-6, a plaintiff seeking an absolute divorce must establish both that he or she has physically resided in North Carolina for at least six months before initiating a divorce proceeding and that he or she intends to make North Carolina his or her permanent home for the indefinite future.

Under G.S. ¤ 50-18, individuals who have resided or been stationed in North Carolina for at least six months in connection with the performance of their military duties satisfy the applicable residence requirement. The plaintiff must still satisfy the “intent to remain” requirement.

As a result, a showing that the husband intended to remain in North Carolina was a necessary component of his divorce claim, regardless of whether he was proceeding under to ¤ 50-6, as the trial court assumed, or under ¤ 50-18.

The question before us is whether, based upon the totality of the circumstances, the trial court erred by concluding that the husband satisfied the residence requirement.

The wife does not challenge the sufficiency of the evidence to support the trial court’s findings of fact. Thus, the trial court’s findings are binding.

We must decide whether the trial court’s findings of fact support its determination that the husband met the residence requirement. The trial court found that the parties lived in North Carolina prior to the filing of the wife’s action for custody and support, File No. 09 CVD 1460; that the parties “owned real property located at 2805 Bardolino Drive” in Fayetteville; that the husband has “continued to reside in North Carolina since the filing of” File No. 09 CVD 1460; that the husband is “currently residing in Raleigh;” that the husband “has a North Carolina driver’s license and has registered his vehicles in the State of North Carolina;” that the husband “paid property tax, both real and personal, in the State of North Carolina;” and that “it was [the husband’s] present intent to remain a resident of North Carolina for the indefinite future and  he  currently continues to reside in North Carolina.” Therefore, the trial court provided ample support for its determination that the husband met the residence requirement.

The fact that the trial court mentioned both the necessity for six months residence in North Carolina and the husband’s “present intent to remain a resident of North Carolina for the indefinite future” clearly shows that the trial court used the correct legal standard in making these findings and conclusions. Thus, the trial court’s order adequately addressed the residence issue.

The wife appears to argue that the residency allegations concerning in the husband’s Alabama divorce petition, coupled with the fact that the husband was registered to vote and had paid income taxes in Alabama, precluded a finding that the husband satisfied the residence requirement of G.S. ¤¤ 50-6 and 50-18.

The wife’s argument overlooks the fact that, while the husband’s allegation that he was a “bona fide” Alabama resident and the fact that he was registered to vote and had paid taxes in Alabama were all relevant to the residence inquiry, those facts, standing alone, did not conclusively resolve the residence issue or preclude the trial court from determining, on the basis of the totality of the circumstances, that the husband met the N.C. residence requirement.

As we have already determined, the trial court’s findings of fact amply support its determination that the husband had resided in North Carolina for more than six months preceding the filing of this divorce action and that he intended to remain in North Carolina indefinitely, which is all that the law requires.

Affirmed.