Residence, Domicile & Venue - Ex Parte Hudson


Ex parte Hudson, [Ms. 2160558, June 23, 2017] __ So. 3d __ (Ala. Civ. App. 2017). The Court of Civil Appeals unanimously denies a petition for writ of mandamus which sought an order directing the Baldwin Circuit Court to vacate its order granting a motion for a change of venue in a divorce action. The court revisits the issues of "residence" and "domicile" for purposes of fixing the proper venue in divorce cases pursuant to § 30-2-4, Ala. Code 1975.

It has long been the law in Alabama that

"[t]he decisions are to the effect that 'residence' as used in such statutes is the equivalent of domicile; residence means legal residence or domicile for such purposes. Allgood v. Williams, 92 Ala. 551, 8 So. 722 [(1891)]; Metcalf v. Lowther's Executrix, 56 Ala. 312 [(1876)]. It is therefore a mixed question of law and fact, depending upon the bona fide intention of the party."

Ms. *7 (quoting Caheen v. Caheen, 233 Ala. 494, 496, 172 So. 618, 619 (1937)).

"'A person's domicile is that place in which his habitation is fixed, without any present intention of removing, and it embraces (1) the fact of residence and (2) the intention to remain. As a general proposition a person can have but one domicile, and when once acquired is presumed to continue until a new one is gained facto et animo, and what state of facts constitutes a change of domicile is a mixed question of law and fact.'

"Ex parte Weissinger, 247 Ala. 113, 117, 22 So. 2d 510, 514 (1945)."

Ms. *8 (quoting Skieff v. Cole-Skieff, 884 So. 2d 880, 883 (Ala. Civ. App. 2003)).

Finding the evidence disputed as to whether the husband and wife resided in Baldwin County or Montgomery County, and given the standard of review which gives the trial court's determination a presumption of correctness (Ms. *9 (citing Scott v. Scott, 915 So. 2d 577, 579 (Ala. Civ. App. 2005)), the court could not conclude that the trial court clearly erred in granting the husband's motion and transferring venue to the Montgomery Circuit Court.

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