Lujan-Espinosa v. Lujan-Espinosa

• Court: Superior Court of Guam
• Decided: August 13, 2012
• Docket: DM0708-11
• Status: Unknown

Opinion

IN THE SUPERIOR COURT OF GUAM 2

3 RUFO JOSEPH LUJAN-ESPINOSA, ) ) 4 Plaintiff, ) DOMESTIC CASE NO. DM0708-11 5 ) vs. ) 6 ) DECISION AND ORDER BRITTANEY LEE LUJAN-ESPINOSA, ) 7 ) 8 Defendant. )

9 INTRODUCTION 10 This matter came before the Honorable Judge James L. Canto II on the Defendant's 11 motion to dismiss, filed March 28,2012. Oral arguments were heard on June 7, 2012. Attorney 12 Charles H. McDonald II appeared on behalf of the Defendant and Attorney John C. Terlaje 13 represented the Plaintiff. Having considered the parties' briefs, oral arguments, and the 14 applicable law, the Court now issues the following Decision and Order. 15 BACKGROUND 16 Plaintiff Rufo Joseph Lujan-Espinosa and Defendant Brittaney Lee Lujan-Espinosa were 17 married in Norfolk, Virginia on December 22, 2007. Plaintiff is an active duty member of the 18 U.S. Army and currently stationed in Okinawa, Japan. Defendant is not a member of the U.S. 19 Armed Services but is currently living in Norfolk, Virginia. On October 10, 2011, Plaintiff 20 filed the present complaint for divorce on the basis that he, "is a resident of Guam and is in the 21 armed forces serving in the U.S. Army in Okinawa." (Complaint, ~ 3, Oct. 10,2011.) 22 On March 28, 2012, Defendant moved to dismiss the complaint for lack of jurisdiction 23 under 19 GCA § 8318. Defendant argues that Plaintiff was not physically present in Guam for 24 ninety (90) days preceding the complaint and is therefore not a resident of Guam. Plaintiff 25 argues that he is a resident of Guam because he was raised and lived in Guam before he enlisted 26 in military service, his service member home of record is Guam, he retains a valid Guam 27 driver's license, and he intends to return to Guam when his service is complete. (Record Log at 28 9:09, June 7, 2012; Opposition to Motion to Dismiss, Exhibits "A" and "B", May 25,2012.)

Page 1 of3 DISCUSSION 2 Title 19 GCA § 8318 states in pertinent part: 3 (a) A divorce or dissolution of marriage may be granted if one (1) of the parties has been a resident of Guam for at least ninety (90) days immediately 4 preceding the filing of a complaint for divorce, or dissolution of marriage .... 5 Physical presence by one of the parties in Guam for a period of ninety (90) days prior to filing of the action for divorce or dissolution of marriage shall 6 give rise to a conclusive presumption of compliance with this Section. 7 As it is used in Section 8318, the term "resident" is synonymous with the meanmg of 8 "domiciliary" and "domicile" beyond mere residence. Miller v. Miller, No. 90-00015, 1990 WL 9 320352, at *2 n. 2 (D. Guam App. Div. 1990) (citing Williams v. State of North Carolina, 317 10 U.S. 287, 297-299, 63 S.Ct. 207,212-213 (1942) and Robert A. Brazener, Annotation, Validity 11 of Statute Imposing Durational Residency Requirements for Divorce Applicants, 57 A.L.R.3d 12 221,227 (1974)). 13 Guam law does not exact a difference between a "domicile" and a "residence", but it is 14 generally uncontroverted that a domicile is established by physical presence with the intent to 15 remain. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 16 1608 (1989). Whereas a residence is established by physical presence alone and is separate 17 from a domicile where one intends to return. Id citing Perri v. Kisselbach, 34 N.J. 84, 87, 167 18 A.2d 377, 379 (1961) (residence is a presence for the time being); District of Columbia v. 19 Murphy, 314 U.S. 441, 62 S.Ct. 303 (1941) (a domicile is retained by the fixed and definite 20 intent to return there); In re Estate ofJones, 192 Iowa 78,80, 182 N.W. 227, 228 (1921). 21 In this case, Plaintiff is stationed in Okinawa, Japan pursuant to military service and he 22 is not conclusively presumed to be a Guam resident by physical presence under 19 GCA § 23 8318. However, Plaintiff enlisted into military service in Guam and he intends to return after 24 his service is complete. On this basis, Plaintiff may be a domiciliary of Guam under Section 25 8318. See Miller, 1990 WL 320352, at *2 n. 2. 26 In the case of military service, "[i]t is well settled that the domicile of a person is in no 27 way affected by his enlistment in the civil, military or naval service of his country; and he does 28 not thereby abandon or lose his domicile which he had when he entered the service nor does he

Page 2 of3 acquire one at the place where he serves." Johnston v. Benton, 73 Cal.App. 565, 569 (Cal. Ct. 2 App. 1925). See also Blessley v. Blessley, 91 N.M. 513, 514 (N.M. 1978); Nora v. Nora, 494 3 So.2d 16, 18 (Ala. 1986). Only, "clear and unambiguous evidence of an intention to abandon 4 the old domicile and adopt a new one," may change a service member's domicile to a place 5 where he serves. Johnson v. Johnson, 245 Cal.App.2d 40, 45 (Cal. Ct. App. 1966). See also 6 Jizmejian v. Jizmejian, 16 Ariz.App. 270, 274 (Ariz. Ct. App. 1972); Israel v. Israel, 121 S.E.2d

7 713, 715-716 (N.c. 1961). 8 In this case, Plaintiff entered military service as a domiciliary of Guam and he presents 9 evidence that he intends to return after his service is complete. The parties present no evidence 10 that Plaintiff intends to abandon Guam and establish a new domicile. Plaintiffs physical 11 absence during military service does not affect his domicile or his intent to return to Guam. For 12 these reasons, Plaintiff remains a domiciliary of Guam with the jurisdiction to obtain a divorce 13 under 19 GCA § 8318 and the motion to dismiss shall be denied. 14 III 15 III 16 III 17 CONCLUSION 18 Based upon the foregoing, and consistent with the bench ruling of the Court on July 12, 19 2012, the Defendant's motion to dismiss for lack of jurisdiction is hereby DENIED. 20

21 SO ORDERED this \ 3-rn day of August, 2012, nunc pro tunc to July 12,2012. 22

25 HON. JAMES L. CANTO II Judge, Superior Court of Guam 26

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