dissenting. It is conceded that the parties here have lived separate and apart for three years (approximately six years in fact) without cohabitation and, therefore, appellee would be entitled to a divorce in Arkansas if he had established the jurisdictional prerequisite here of residence at the time suit was filed and the decree granted. The only question before us, therefore, is that of residence, a fact question.
The chancellor found that the preponderance of the evidence showed that legal residence had been established, and on this appeal, where we try the case de novo, I am unable to say that the trial court’s finding was against the preponderance of the testimony and, therefore, I think we should affirm.
At the time appellee. moved to Fayetteville, I think he abandoned his Florida residence. He, therefore, had the absolute right to establish his residence in Arkansas. His intention is controlling, Hillman v. Hillman, 200 Ark. 340, 138 S. W. 2d 1051. No definite length of time is necessary in order to establish domicile or residence. “Under the common law every person has a domicile; when any person attains his age of majority he at that moment has a domicile previously assigned to him by law. He may thereafter acquire a new domicile, but if he does not acquire a new one the old one persists.
‘ ‘ The principal manner by which a new domicile can be acquired is by physical presence at a new place coinciding with the state of mind of regarding the new place as HOME. New domicile arises instantaneously when these two facts concur. The motive actuating establishment of the new home is wholly immaterial. It may be for the purpose of taking advantage of lower tax laws, or easier divorce laws, or to evade civil or criminal liabilities about to be imposed in another state, or for any other purpose, worthy or unworthy. If presence at the new place is with the intention merely to make use of the more favorable laws there in force or gain other advantages there available without actually making a new and exclusive home at the new place, no domicile is there acquired. Presence at the new place need not have continued for any particular length of time in order to establish a new domicile, . . . , ” Leflar, Conflict of Laws, Arkansas, p. 70, § 13.
We said in McGill v. Miller, 183 Ark. 585, 37 S. W. 2d 689: “It must be remembered that a man has the absolute and unqualified right to change his place of abode when he pleases, for any reason which prompts him so to do, and that he does change his place of abode when he removes from one place, with the intention of abandoning it as his place of abode, to another place, where he expects to abide, without having the intention of returning to the place from which he removed. ’ ’ And in 28 C. J. S. 17 the textwriter uses this language: “If the requisite intention is shown to exist, the law will not, according to most authorities, scrutinize the motive or purpose prompting a change of domicile; . . . , ” and in support of the text is cited Hillman v. Hillman, above. And in Restatement of the Law, Conflict of Laws, under Domicile, Chapter 2, § 22 it is said: “a. If the new dwelling-place is acquired with the necessary intention of making it a home, it becomes a domicile of choice although there may be a special, even an unworthy, motive in making the change.
“1. A changes his dwelling-place for the purpose of diminishing his taxes or avoiding the payment of a debt or for the purpose of securing- a divorce. He intends, however, to make the new place his home. A’s domicile is changed. ’ ’
With these guiding rules in mind, 1 consider the evidence. Appellee in April, 1950, closed his house in Florida, placed it for sale with an agent, publicly advertising it. May 5, 1950, he moved bag and baggage by private plane to Fayetteville, closed his bank account in Florida and directed federal authorities to change his income tax file to the office of the Collector of Internal Revenue in Little Rock and notified taxing authorities in Florida of his move to Fayetteville. He removed his name from the voting registration list in Florida, and notified social and fraternal organizations, clubs, insurance companies and hotels where he had credit cards of his change in residence to Fayetteville, at the same time resigning his membership in the Miami Beach Country Club. After arriving in Fayetteville he opened bank accounts and safety deposit boxes at the Mcllroy Bank and at the First National Bank of Fayetteville, informing- the bank officials that he had come to Fayetteville to make it his home. He joined the Fayetteville Country Club and its Chamber of Commerce, opened a business office and employed a secretary. He purchased an Arkansas poll tax June 8, 1950, and leased an apartment for a year. After some investigation he purchased four acres of land adjoining the country club at $1,500 an acre on which he contemplated building a home at the cost of $50,000. It is practically undisputed that Fayetteville is the center or hub of his various and extensive business enterprises.
Of strong significance and supporting my view that appellee intended to establish his domicile in Fayetteville and abandon his Florida residence was the undisputed-fact that the skilled and trusted pilot of his private plane who had served him faithfully for many years, moved his family (his wife and three children) and all his belongings, from Florida to Fayetteville, placed his children in school in Fayetteville and purchased a home for $10,000 (paying $4,000 cash and $6,000 through a Fayetteville building and loan company), and the further fact that appellee’s co-pilot also moved his family to Fayetteville and leased a home. It seems to me that these actions of appellee’s pilots when considered along with all the other evidence were sufficient to turn the scales in favor of the chancellor’s findings when the evidence appeared to be so evenly divided. Obviously appellee must have a domicile somewhere. The rule, as pointed out, is that one may change his domicile at will, with no certain length of time required to effectuate the change. Intention controls.
I make no defense of appellee’s moral concepts. It is conceded, however, that he has a valid ground for divorce here and it is also undisputed that appellant (his wife) has property of the value of $350,000 and, in addition to the income from it, appellee pays to her $500 monthly. I would affirm the decree.
I agree with the majority that appellee should pay to appellant’s counsel an additional attorney’s fee of $2,500.
Justices Millweb and Robinson join in this dissent.