Allen v. Allen

The prevailing opinion reveals the anomalous situation where counsel for a litigant, disgruntled at the court's denial of motion for continuance interposed when the cause came on regularly for trial, by walking out on the court and abstaining from participation in the trial, has placed his client in a better position to challenge sufficiency of the evidence to support the findings made than if he had remained in the trial, although without reserving the question for review.

My unwillingness to concur in the majority opinion does not rest upon any disagreement between us over the right of this court to notice, without exception, jurisdictional matters, even though raised for the first time in this court. The opinion in the case they cite and quote, De Baca v. Wilcox, 11 N.M. 346,68 P. 922, supports our right so to do as does the case of Davidson v. Enfield, 35 N.M. 580, 3 P.2d 979, and as do others which might be cited. It may be conceded, too, that an affirmative finding, either by the court or jury, of a jurisdictional fact essential to the court's right to enter judgment, wholly devoid of evidence to support it, although challenged here for the first time on such ground, falls within this class of cases. It should be pointed out, however, that there are statements in some of our opinions which create confusion on the right to do this very thing. See Woods v. Fambrough, 24 N.M. 488, 174 P. 996, and State v. McKenzie, 47 N.M. 449, 144 P.2d 161. Where we disagree is in making such a claim the basis of a review of the evidence to determine its substantiality, or otherwise examining it beyond the point of ascertaining whether there be any evidence which, with legitimate inferences therefrom, tends to support the finding.

In their opinion the majority state, as if of some significance, that the order entered June 20, 1947, denying the motion to dismiss gave defendant until June 21 to answer. This order was signed and dated June 19. Its background discloses that at a formal hearing on said motion, duly noticed for *Page 183 May 17, the defendant defaulted, neither she nor her counsel appearing, after having filed a motion the day before seeking continuance of the hearing to secure the depositions of herself and unnamed, unlocated witnesses in Illinois and "other places". When neither defendant nor her counsel appeared on the day set for hearing on the motion on May 17, the trial court of its own motion entered an order setting the hearing over to May 24, 1947. For some reason not appearing of record, the hearing was not held on May 24, but instead was passed by stipulation to June 14, as recited in the order entered June 20 denying the motion. On June 14 the defendant appeared in person as well as by her two attorneys, the one from Chicago and the other from Alamogordo.

Before entry of the order of June 20, hearing on the motion to dismiss had been held in Alamogordo on June 14, 1947, as already stated, at which time evidence was taken and findings made in the order overruling the motion. It also gave defendant until June 21, 1947, to file an answer, if desired. Whether the trial court's action in ruling defendant to answer two days after signing the order on June 19, and one day following its entry, amounted to an abuse of discretion, we have no way of knowing. Certainly, it could have no bearing on the question of residence upon which the majority opinion is rested. The defendant had defaulted in appearance for the hearing on motion to dismiss set for May 17, notwithstanding the filing of a motion the day before seeking postponement thereof to take depositions of yet undiscovered witnesses. The cause had been pending since March 24, appearance day had come and gone by some two weeks, save as tolled by the special appearance on motion to dismiss, and general appearance had actually been entered the week before without answering. The trial court may very well have felt, although it can make no difference now, that dilatory tactics were being resorted to and that it was time to put the case at issue.

The cause was placed at issue by the filing of defendant's answer on June 21, 1947, as ordered. On June 23, plaintiff's counsel noticed the case for hearing on the merits on June 30, following. When the case came on regularly for trial on the date last mentioned, the defendant filed still another motion for time to take depositions of unnamed and unlocated non-resident witnesses. There was no allegation of diligence in seeking to identify, locate and take their depositions, notwithstanding pendency of the suit since late March, 1947, with the proceedings therein already mentioned and the special appearance of defendant on April 23 to challenge jurisdiction for claimed want of bona-fide residence on plaintiff's part. This was the first defense advanced in defendant's answer later filed. The trial court in the exercise of a sound discretion declined to grant the motion to postpone the trial, holding that "said motion was not *Page 184 filed in apt time and does not state sufficient ground for a continuance of this cause." The language just quoted from the final decree is followed by the formal order overruling the motion and a recitation of abandonment of the trial by defendant's attorney. It reads: "Wherefore, it is Ordered, Adjudged and Decreed, that the Motion of the Defendant for a continuance be and the same is hereby denied. Whereupon, the said Attorney for the defendant announced in open Court that he would not participate further in the hearing and withdrew from the Court."

The majority do not rest their reversal on any claim that the denial of this motion was an abuse of discretion. Obviously, it was not. Instead, and contrary to the long established doctrine prevailing in this court that, absent a request for findings or exceptions to those made, the evidence will not be reviewed to determine whether they are supported by substantial evidence (Woods v. Fambrough, 24 N.M. 488, 174 P. 996; Murphy v. Hall,26 N.M. 270, 191 P. 438; Williams v. Kemp, 33 N.M. 593, 273 P. 12, Santa Barbara Tie and Pole Co. v. Martinez, 34 N.M. 181,279 P. 71; Alexander Hamilton Institute v. Smith, 35 N.M. 30,289 P. 596; Damon v. Carmean, 44 N.M. 458, 104 P.2d 735; Veale v. Eavenson, N.M., 192 P.2d 312), the majority have proceeded to review the evidence and in so doing have disregarded another cardinal rule governing where a review is awarded upon a proper challenge to findings, namely, that they will not be disturbed if found to have substantial support in the evidence.

Even if the majority were entitled to review the evidence, as they are not on the record before us, they still are confronted by the substantial evidence rule. Under it the finding of residence made by the trial court is not to be overturned if it has substantial evidence to support it. It is difficult to understand how any one can say that finding lacks substantial support when the only evidence on the subject was that introduced by the plaintiff, all of which tends to support his claim of residence. The majority purport to quote all the testimony bearing on the issue of residence. Just why they omit that which is set out below, it is difficult to understand. Obviously the trial judge was entitled to consider it in making a finding on the vital issue of residence. Following by a few sentences the portion of plaintiff's testimony quoted by the majority, questions were asked him and replies made as follows:

"Q. At the time you established your residence in OteroCounty, in September, 1945, state whether or not the defendantwas a resident here with you. A. She was.

* * * * * * "Q. You say this particular quarrel lasted for some two or three days: What *Page 185 did your wife do with reference to leaving? A. She informed me that she was leaving and I said, `All right, if you want to go I can't force you to stay.' And I told her thatdespite the fact that we had fallen out among ourselves, that Iwas still willing to maintain a home for her and the childrenhere in Alamogordo. During the next two or three days she would tell me that she was either staying or going; and she changed her mind a half dozen times. And regardless of her decision I told her she could go or stay and if she wanted to stay I wouldmaintain a home for her. She finally made train reservations and called me and asked me to pick up her ticket; so, I went down and bought a train ticket. She never had unpacked her baggage.

"Q. Did you give your wife any reason to leave you early in March, as she did? A. No, I don't think so.

"Q. Had you provided a home here? A. Yes, sir.

"Q. And the necessities of life and such as were necessary for her comfort? A. Yes, sir, Every convenience that could be, wasin the home.

* * * * * * "Q. Have you been back to Illinois since you and your wife separated in March? A. No, sir." (Emphasis mine).

A witness, Duncan Campbell, called by the plaintiff, testified to several conversations with the plaintiff during which the latter expressed a desire to go into business in Alamogordo after the war was over. This portion of the testimony of the witness, Duncan, is quoted in the majority opinion. However, here as in the case of plaintiff as a witness, the majority fail to quote certain testimony bearing on the issue of residence and plaintiff's good faith in claiming it which, in my opinion, the trial judge was entitled to consider. It is as follows:

"Q. State your name, please. A. George Duncan Campbell.

"Q. Where do you reside? A. At 311 Fourteenth Street, Alamogordo, Otero County.

"Q. How long have you resided in Otero County, New Mexico? A. Approximately Two years — two years this month.

"Q. What business are you in? A. Men's Store.

"Q. And are you acquainted with Captain Byron D. Allen, the plaintiff in this case? A. I am.

"Q. How long have you known Captain Allen? A. He first started coming in the store about Christmas, 1945.

"Q. Were you acquainted with his wife at the time they were living here? A. Yes.

"Q. Where were they living? A. Along about Thirteenth Street — *Page 186

"Q. Since you have known Captain Allen — about Christmas of1945 — where has he been a resident? A. He lived here in town;his duties were at the Air Base

"Q. Since 1945 continuously? A. Yes, sir, I know that for afact." (Emphasis mine).

In my opinion, all of the testimony quoted herein, yet omitted by the majority and denied consideration in support of the trial court's finding of residence, is pertinent to that issue. Even if it be granted that portions thereof may not properly be so considered, how the following question and answer can be ignored in seeking support for the finding is inconceivable to me, to wit:

"Q. At the time you established your residence in OteroCounty, in September, 1945, state whether or not the defendantwas a resident here with you. A. She was." (Emphasis mine).

Can it be possible that the majority deny consideration because the question is leading? Surely not! And, yet, no other reason so obviously suggests itself. The majority offer no explanation of the reason for exclusion. If this be the reason, then, for the first time in its history, this court goes on record as saying it will sift from the bill of exceptions all evidence such as hearsay testimony, answers to leading questions and the like, which may have come into the record without objection through inadvertence or carelessness of counsel, yet might have been excluded upon proper objection, before testing the sufficiency of the evidence to support a finding. All reason for the alertness of counsel in keeping out objectionable evidence will disappear in the face of such a rule here for applying the substantial evidence test to findings.

Preliminary to a determination of the sufficiency of the evidence to support a finding of residence in plaintiff, the answer to a single question must be supplied. The question is: Can a person while on active duty in the United States Army change his residence? If he cannot, that ends the matter. Obviously, he can as the majority concede. But while professing to uphold the right of an army officer to change residence while a member of the armed services, the majority then proceed to apply a test for effecting the change which amounts to a denial of the right in practically every instance where the issue is raised. Of course, there is no legal impediment to such a change of residence. 19 C.J. 418; 28 C.J.S., Domicile, § 12, page 28; 17 Am.Jur. 634; Trigg v. Trigg, 226 Mo. App. 284, 41 S.W.2d 583. St. John v. St. John, 291 Ky. 363, 163 S.W.2d 820; see, also, annotation of subject in 106 A.L.R. 6(32), supplemented in 159 A.L.R. 496(507) and annotations in 148 A.L.R. 1413, as supplemented in 149 A.L.R. 1471, 150 A.L.R. 1468, 151 A.L.R. 1466, *Page 187 152 A.L.R. 1471, 153 A.L.R. 1442, 153 A.L.R. 1466, 156 A.L.R. 1466.

The author of the text on the subject of Domicile in 17 Am.Jur. 634, concedes the right of a person in the armed services to effect a change of residence. He states: "A soldier residing at a government post on land ceded by a state to the government is not a resident of that state, although the grant by the state of the site of the post reserves the right to serve process from the courts of the state. On the other hand, if a person engaged in military service by animus and factum establishes a residence near but outside the military post, with the purpose of making such residence the home of himself and his wife, he may acquire a domicil in such place."

This Court in Klutts v. Jones, 21 N.M. 720, 158 P. 490, 492, L.R.A. 1917A, 291, recognizes the question of whether a person is a resident of one place or another to be largely one of intention determinable by the trial court, stating: "* * * and, where the intention and the acts of the party are in accord with the fact of residence in a given place, there can be no doubt of the fact that such party is a bona fide resident of the place where he intends to and does reside." See, also, Fisher v. Terrell,51 N.M. 427, 187 P.2d 387.

The facts in the case of St. John v. St. John, supra, decided by the Supreme Court of Kentucky are not unlike those in the case at bar. There an army officer, as here, was the plaintiff in a divorce suit. As an officer in the United States Army on active duty he first came into the state of Kentucky and was stationed at Fort Knox. Following marriage in November, 1940, he brought his wife to Kentucky and set up housekeeping at West Point, not far from Fort Knox. After dwelling at West Point for two months, the officer and his wife moved to the nearby town of Vine Grove where they resided until ordered to Fort Knox to reside on March 1, 1941. Having purchased furniture upon setting up housekeeping, the plaintiff stored same in Kentucky when ordered to Fort Knox.

In the St. John case, as here, the facts showed that the plaintiff claimed Kentucky as his home. Whereas, there the plaintiff and wife had maintained a household off the military reservation for only four months, here the plaintiff and wife had resided in a home provided by him off the military reservation for nearly two years. In the St. John case, where the facts are no stronger, if as strong as here, the court held [291 Ky. 363,163 S.W.2d 823]: "The chancellor, in finding that appellant had not acquired a domicil in this state in effect ignored the direct and positive testimony as to intention and relied entirely on inferences at variance with this testimony. In the usual and ordinary case involving domicil, the one whose domicil is in question is not a witness and inferences *Page 188 from proven facts and circumstances become all important but where, as here, the one whose domicillary status is in question gives positive uncontradicted testimony as to his intention and the proven facts and justifiable inferences therefrom do not render such testimony incredible, it should be given due consideration and weight. We think there was nothing in the evidence to discredit appellant's testimony and that of the witness referred to and render such testimony unworthy of belief. This being true, the evidence undoubtedly established that appellant had acquired a domicil in Kentucky which, concurring with actual residence, was sufficient to entitle him to maintain the action since, as above indicated, his domicil or legal residence here was not terminated by his moving into the military reservation under army orders."

In City of Roswell v. Hall, 45 N.M. 116, 112 P.2d 505, in an opinion by Chief Justice Brice the test to be applied in this court for determining sufficiency of the evidence to sustain findings of the trial court was stated as follows: "* * * and in determining whether there is substantial evidence we will consider only that part of the evidence supporting the judgment, and reject the opposing or conflicting testimony." See, also, to the same effect, the cases of Dickerson v. Montoya, 44 N.M. 207,100 P.2d 904; Williams v. Engler, 46 N.M. 454, 131 P.2d 267, and Sundt v. Tobin Quarries, 50 N.M. 254, 175 P.2d 684, 169 A.L.R. 586.

An application of the foregoing test can only result in sustaining the finding of residence. The majority, as has been pointed out, have applied this test in reverse, at least, as to some of plaintiff's supporting testimony, by excluding it from consideration altogether.

In St. Clair v. St. Clair, 175 S.C. 83, 178 S.E. 493, the holding of the court on the question now considered is epitomized in the second syllabus, as follows: "Finding of trial judge is conclusive on question of residence of party to action, unless there is a total failure of testimony to support it."

Unless there is absolutely no testimony to support the finding of residence, this court is without right to review the evidence for determining its substantive character in support of the questioned finding. This is so because the question of sufficiency of the evidence to support the finding was not reserved below. Faced with a claim that there is no evidence to support a jurisdictional finding, we may examine the record sufficiently to ascertain whether the claim be true. Once the court finds some evidence tending to support the finding, its inquiry ends, the record book is closed and the judgment must stand affirmed without debating its substantial character. Whether it were so was a question for the district court, not the Supreme *Page 189 Court, to determine. If the defendant had desired to raise that question here, she should have been present or represented at the trial and reserved it for review.

How it can be said there is no evidence tending to support the questioned finding is simply incomprehensible to me. The isue was the plaintiff's bona fide residence in Otero County. He testified that Alamogordo was his residence and had been for two years. He had resided with his family, off the military base, in a house maintained by him in the town of Alamogordo throughout that period. On several different occasions, over the period of two years, he had discussed with a business man of Alamogordo the prospects of getting into some business there when his army tour ended. And, yes, too, if one please, unless excluded as in the prevailing opinion, apparently, because the question is "leading", but contrary to the test to be applied as declared by this court in the cases cited, supra, the plaintiff had "established" residence in Otero County, "in September, 1945."

If this Court can reverse a trial judge on findings made at a default trial, with the support the questioned finding here has, and where there is no challenge to a single ruling nor the slightest semblance of compliance with requirements for preserving error for review, then the litigant "who fights and runs away," indeed does "live to fight another day." As already said, such a litigant is placed in a better position to challenge error than the one whose counsel remains in the trial and merely overlooks preserving error for review.

The judgment of the trial court should be affirmed. The majority having determined otherwise, for the reasons heretofore stated, I dissent.