Appeal from dismissal of a divorce action and an ex parte order awarding custody of a child, issue of the marriage, to plaintiff. Remanded to proceed further. No costs awarded.
This case focuses attention on Title 30-3-1, Utah Code Annotated 1953, as amended,1 which jurisdictionally requires a divorce plaintiff to be “an actual and bona fide resident” of the county and state for three *85months before suit. We have toyed with this phrase,2 but have had no case that actually has impelled us to meet it head on in construing the legislative language employed. Neither do we need meet it here for reasons hereinafter mentioned, leaving to the trial court, in an appropriate case, the initial interpretation of the phrase based on presented facts. Each case is determinable on its own particular facts.
Most jurisdictions do not have our actual and bona fide” residence requirement. Many require only “domicil” which, in the oft-repeated language of the late Professor Joseph Beale, connotes a “home feeling” for a particular place. It becomes obvious, therefore, that our difficulty stems from the elusive word “actual,” which the legislature chose to use without additional explanation. Our duty, then, is to read validity, constitutionality and sense into this word, if possible.
Firstly, the “home feeling” espoused by Professor Beale is an essential to Jurisdiction for divorce in this state, since we consider the phrase “bona fide residence” to be synonymous with “domicil.” As to “actual residence,” we do not con.sider the phrase to require a continuity of heart-beat within the jurisdiction throughout the three-month period by the person involved. Temporary absence would not destroy jurisdiction for that reason alone. But, as Justice McDonough said in Kid-man v. Kidman, “actual residence” means something more than that “home feeling,” or domicil. In supplementing Justice Mc-Donough’s suggestion, we like the language of Justice Epes, in Hiles v. Hiles,3 where he stated that “The plaintiff need not have been physically present in Virginia every day during that period; but it is essential that, during such part of that year as he was absent from Virginia, he has actually maintained in good faith at least a locality somewhere in Virginia as his permanent abode.” We think to satisfy the statute one must have some abode in the county to which he intends to return, and where, in doing so, he would be no trespasser.
More than one factor is necessary to meet the test. Absentee voting should be important, since to cast an absentee ballot, one must admit, and if necessary, swear, that he is a resident of a circumscribed area in a state, and presumably, therefore, has “actually maintained in good faith at least a locality somewhere in” the state. We caution that this circumstance is only presumptive and rebuttable. If one has been *86called into the service and has rented a home he formerly physically occupied and to which he intends to return, this should be persuasive. If, for example, he were stationed in, or because of his employment was required to go to another state where income taxes were not imposable, the fact that he continued to pay income taxes in the state of his domicil is a fact that to a very considerable degree should he con-vincible that the individual was not only a domiciliary of the state to which he paid the tax, but was an “actual” resident thereof in a divorce matter. If he left his wife and children in the locality, having the animus revertendi and the animus manendi had he not been required to leave, these things should be important. If he had been born in the local forum and had left, perforce, for economic, military, political or any other reasons which impelled him to leave, this should be somewhat compelling. Directions as to the disposition of mail addressed to him should have some weight.
What we are trying to say is that whether a person is an “actual” resident on top of his domiciliarity, including, of course, his intention, is a factual matter determinable in the first instance at the trial court level. The conclusion would be subject to the usual principle that fact matters will be disturbed on appeal only where the fact finder has acted capriciously or arbitrarily, and where admissible, believable evidence does not support the findings.
The only reflection in this most sketchy record of any refutation that the plaintiff was an “actual” resident of Utah and Salt Lake County for the prescribed time were-the following unsworn, sort of off-the-cuff statements of counsel for plaintiff, who said' “It’s a fact he didn’t have any apartment * * * He was married at that time-(when he was in the military service). He-took the girl and they went to California. They did not have an apartment. Whether or not he had a key in his pocket that he could return to his mother’s home, I don’t-know that * * * I would concede that * * * he and his wife did not maintain a residence, either rented, owned, or borrowed.”
The above was lawyer talk. The-facts related in plaintiff’s brief on appeal' make it perfectly apparent that there was. considerable discussion between court and. counsel that did not find its way into the printed record, and we think that, because-of possible inadvertence in failing to- get the true discussions and possibly vital stipulations in the official record, that the case-should be remanded for further fact-finding-in an appropriate proceeding that might be initiated by the court on its own motion-or-by counsel for either side, to determine-those facts touching the question of “actual” residency.
Emphasis and parenthesis ours.
WADE, C. J., and McDONOUGH and! CALLISTER, JJ., concur.. Chap. 45, See. 1, Laws of Utah 1955; see Pocket Supplement, 1959.
. Kidman v. Kidman, 1945, 109 Utah 81, 164 P.2d 201, 202, wherein we said that “We assume that being an ‘actual and bona fide resident’ of a county comprehends the maintenance therein of something more than a mere ‘legal resi-elenco/ **
. 164 Va. 131, 178 S.E. 913, 916, 106 A.L.R. 1.