Bryant v. . Bryant

Supreme Court of North Carolina

Bryant v. . Bryant

45 S.E.2d 572, 228 N.C. 287, 1947 N.C. LEXIS 345

CourtSupreme Court of North Carolina

DecidedDecember 10, 1947

StatusPublished

Cited by8 cases

This text of 45 S.E.2d 572 (Bryant v. . Bryant) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bryant v. . Bryant, 45 S.E.2d 572, 228 N.C. 287, 1947 N.C. LEXIS 345 (N.C. 1947).

Pincite

Opinion

DeviN, J.

By motion in the cause the defendant sought to vacate the divorce decree theretofore rendered on the ground that at the time plaintiff instituted his action he was not and had not been for six months a resident of North Carolina as required by Gr. S., 50-6. Properly the procedure for obtaining relief on the ground alleged was by motion in the cause. Simmons v. Simmons, ante, 233.

However, the controverted issue raised by defendant’s motion as to the residence of plaintiff at the time of his divorce action seems to have been determined against the defendant by the findings of fact.

In order to constitute residence as a jurisdictional fact to render a divorce decree valid under the laws of this State there must not only be physical presence at some place in the State but also the intention to make such locality a permanent abiding place. There must be both residence and animus manendi. Reynolds v. Cotton Mills, 177 N. C., 412, 99 S. E., 240; Roanoke Rapids v. Patterson, 184 N. C., 137, 113 S. E., 603; S. v. Williams, 224 N. C., 183 (191), 29 S. E. (2d), 744. To establish a domicile there must be residence, and the intention to make it a home or to live there permanently or indefinitely. S. v. Williams, supra. *290 • Tbe court found tbe facts as to plaintiff’s actual residence in Robeson County, North Carolina, for more than tbe statutory period, and further found that at tbe time be expressed tbe intention of remaining in Robeson County, saying be bad moved- there to stay. Tbe fact that plaintiff, for tbe purpose of obtaining automobile license and ration cards stated bis residence as Conway, South Carolina, was some evidence on tbe question of domicile but not necessarily conclusive. Welch v. Welch, 226 N. C., 541, 30 S. E. (2d), 457.

"While there was evidence from which a contrary decision might have been rendered, tbe record also discloses evidence in full support of tbe findings made by tbe court. Hence, tbe conclusion reached below that plaintiff bad been a resident of Robeson County for more than six months next preceding tbe commencement of this action will be upheld-. In re Hamilton, 182 N. C., 44, 108 S. E., 385; Stokes v. Cogdell, 153 N. C., 181, 69 S. E., 65.

Judgment affirmed.

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DeviN, J.

By motion in the cause the defendant sought to vacate the divorce decree theretofore rendered on the ground that at the time plaintiff instituted his action he was not and had not been for six months a resident of North Carolina as required by Gr. S., 50-6. Properly the procedure for obtaining relief on the ground alleged was by motion in the cause. Simmons v. Simmons, ante, 233.

However, the controverted issue raised by defendant’s motion as to the residence of plaintiff at the time of his divorce action seems to have been determined against the defendant by the findings of fact.

In order to constitute residence as a jurisdictional fact to render a divorce decree valid under the laws of this State there must not only be physical presence at some place in the State but also the intention to make such locality a permanent abiding place. There must be both residence and animus manendi. Reynolds v. Cotton Mills, 177 N. C., 412, 99 S. E., 240; Roanoke Rapids v. Patterson, 184 N. C., 137, 113 S. E., 603; S. v. Williams, 224 N. C., 183 (191), 29 S. E. (2d), 744. To establish a domicile there must be residence, and the intention to make it a home or to live there permanently or indefinitely. S. v. Williams, supra. *290 • Tbe court found tbe facts as to plaintiff’s actual residence in Robeson County, North Carolina, for more than tbe statutory period, and further found that at tbe time be expressed tbe intention of remaining in Robeson County, saying be bad moved- there to stay. Tbe fact that plaintiff, for tbe purpose of obtaining automobile license and ration cards stated bis residence as Conway, South Carolina, was some evidence on tbe question of domicile but not necessarily conclusive. Welch v. Welch, 226 N. C., 541, 30 S. E. (2d), 457.

"While there was evidence from which a contrary decision might have been rendered, tbe record also discloses evidence in full support of tbe findings made by tbe court. Hence, tbe conclusion reached below that plaintiff bad been a resident of Robeson County for more than six months next preceding tbe commencement of this action will be upheld-. In re Hamilton, 182 N. C., 44, 108 S. E., 385; Stokes v. Cogdell, 153 N. C., 181, 69 S. E., 65.

Judgment affirmed.

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45 S.E.2d 572, 228 N.C. 287, 1947 N.C. LEXIS 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryant-v-bryant-nc-1947.

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