Zimmerman v. Zimmerman

155 P.2d 293, 175 Or. 585, 1945 Ore. LEXIS 92

• Court: Oregon Supreme Court
• Decided: December 5, 1944
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Suit by Richard H. Zimmerman for divorce. From a decree dismissing complaint on ground that plaintiff had not established requisite residence in state, the plaintiff appeals.

AFFIRMED. Suit by Richard H. Zimmerman against Betty Jane Zimmerman for divorce. From a decree dismissing the complaint on the ground that the plaintiff, a member of the armed forces of the United States, had not established the requisite residence in the state of Oregon, the plaintiff appeals.

On July 5, 1944, the plaintiff filed in the circuit court for Multnomah county, Oregon, a complaint in the usual form, seeking a divorce on the ground of desertion alleged to have occurred in June, 1943. After service upon her, the defendant was adjudged in default for want of appearance. However, at the trial the State of Oregon appeared and contested the suit on the ground that plaintiff, who was in the military service of the United States, had failed to establish residence within the state of Oregon for the statutory period of one year. O.C.L.A. § 9-910.

From the testimony of the plaintiff, it appears that the parties were intermarried on December 27, 1941, at Washington Court House, Ohio. The plaintiff testified in general terms that he has been a continuous resident of the state of Oregon for more than one year immediately prior to the filing of the complaint, and now is such a resident. He lived in Oregon in the years 1938 and 1939, "and went home in '40." At the time he lived here, it was his intention to make Portland his home. He has never abandoned that intention. However, he returned to Washington Court House, Ohio, and was living there when drafted into the armed forces of the United States. He testified that he was not a resident of the state of Oregon when he entered military service. During parts of 1940 and 1941 he was living in Washington Court House, Ohio, where he married the defendant and remained until drafted into the service. Four months after he entered the service he was sent to Oregon and is stationed at Swan Island, a "permanent station," in Portland, Oregon.

He testified, in substance, that at all times since he was stationed in Oregon he has been able and willing to maintain a home for himself and wife and intended to do so. At the time of the alleged desertion in May, 1943, plaintiff was living in Portland and was in the military service. The desertion consists in the refusal of the defendant to come to and live with the plaintiff. The defendant has never left Ohio since the marriage.

The foregoing constitutes all of the evidence relative to the question in issue. The trial court, relying upon provisions of the Oregon constitution and a decision in 3rd Oregon, held that "no member of the armed forces can, while a member * * * establish a domicile in the State of Oregon * * *."