On appeal from a judgment of the Superior Court, Appellate Division, whose opinion is reported at 48 N.J. Super. 566.
For affirmance -- Chief Justice Weintraub, and Justices Wachenfeld, Burling and Jacobs. For reversal -- Justices Heher, Francis and Proctor. Francis, J. (dissenting).
The judgment is affirmed for the reasons expressed in the opinion of Judge Schettino in the court below.
FRANCIS, J. (dissenting).
I dissent from the determination of the majority upon two grounds: (1) at the time this suit was instituted, the plaintiff did not have the necessary domiciliary qualifications and consequently the
Superior Court was without jurisdiction; and (2) even assuming that jurisdiction did exist, the refusal of the court to stay the trial for a reasonable period to permit the disposition of the matrimonial action already pending in Holland, constituted a mistaken use of discretion.
The Superior Court had no jurisdiction to entertain plaintiff's suit for divorce unless he had been a bona fide resident of this State for two years prior to the filing of the complaint. N.J.S. 2 A:34-10. Residence in this context signifies domicile, nothing less. Voss v. Voss, 5 N.J. 402 (1950). A person whose capacity for domicile is limited by law to that of a temporary sojourner cannot qualify as a divorce suitor in our courts.
Gosschalk, a Holland national, was granted an immigrant's visa on October 16, 1953. Under it for the first time he was "lawfully admitted for permanent residence" in this country. 8 U.S.C.A. § 1101(a)(17)(20). Concededly, thereafter his intention to remain here permanently gave him the right to establish a domicile. His complaint was filed on November 23, 1954, only 13 months later. So the court had no jurisdiction of his alleged cause of action unless his residence in New Jersey prior to that date can be added to make up the two-year requirement. The answer depends upon whether his sojourn under a visitor's visa permitted him to establish a domicile.
The majority accept the view of the Appellate Division that a domicile may be created by physical presence and the existence of animus manendi for the requisite period. But there is another element, namely, legal capacity to choose the domicile. 1 Beale, The Conflict of Laws, 108 (1935); Minor, Conflict of Laws, 109 (1901); 17 A Am. Jur., Domicil, § 20, pp. 211-212; cf. In re Collins' Estate, 11 N.J. Misc. 233 (Surr. 1932); Hess v. Kimble, 79 N.J. Eq. 454 (Ch. 1911). If legal competence to do so
is not present, it matters not what the person's actual intention may be.
According to Gosschalk, in July 1950, while domiciled in Holland, he formed the desire to reside in the United States permanently. He had business interests here as well as in Holland. In furtherance thereof on July 17, 1950 he obtained a confirmation of his application for immigration to this country from the consulate office in Rotterdam. This simply denoted that he became listed as one of many persons who were seeking and awaiting authorized emigration.
In November 1950 he came here lawfully but on a visitor's visa. On a number of previous occasions he had occupied the same status and was aware of its significance. In order to obtain it, he had to establish:
(1) that he had a residence in Holland which he had no intention of abandoning;
(2) that he intended to remain in the United States temporarily;
(3) that he intended in good faith and would be able to depart at the expiration of the temporary stay;
(4) that he was in possession of a passport permitting him to return to the country of his residence;
(5) that he had made adequate financial provision to enable him to carry out the purpose of his travel and his sojourn, and his departure from the United States. 8 U.S.C.A. § 1101(a)(15)(B); Besterman, Commentary on the Immigration and Nationality Act, 8 U.S.C.A. §§ 1, 37.
There can be no doubt about the authority of Congress to specify these conditions. Yamataya v. Fisher, 189 U.S. 86, 97, 23 S. Ct. 611, 47 L. Ed. 721 (1903).
Gosschalk's visa was marked "Visitor's Permit" and said over his signature:
"The holder agrees to (1) depart from the United States at the expiration of stay authorized by the United States Immigration and Naturalization Service (2) ...