I am of the view that the finding that defendant in good faith established a residence in Nevada is against the great weight and clear preponderance of the evidence.
Defendant was born in this state, but the record is silent as to where he resided up to 1923. He had lived in Milwaukee continuously since 1923, however. He was the owner of a well-established electrical appliance store and operated a small cattle farm. He sued plaintiff for divorce on June 23, 1942. Judgment was entered denying him a divorce on March 31, 1944. This judgment was affirmed upon defendant's appeal in December, 1944. Defendant counseled with his attorneys about going to Nevada but was advised against it. Within a month he left for Los Angeles with his mother. After a short stay in California he came to Reno on February 20, 1945. He almost immediately met the attorney who handled his divorce case, consulted with him in March, commenced a divorce action as soon as the six weeks' residence requirement of the Nevada law had expired, and was granted a divorce on May 19th. In the meantime he had written to Jane Cox, who had previously been his employee and over whom the parties had theretofore quarreled, and asked her to come to Reno and marry him, which she did on May 25th. He returned to Milwaukee in August to take care of his business and since that time has been going back and forth between Milwaukee and Reno. When he left upon this trip the war was on and he did nothing to advise the draft board of a permanent change in residence.
Considered against its background and having in mind the element of time sequence this series of events speaks loudly of an intention to go to Nevada for the temporary purpose of getting a divorce and then returning to Wisconsin. It is difficult to suppose that the original act of leaving the state almost immediately after the denial of a divorce was not for such purpose. The divorce action was prosecuted with as much *Page 265 expedition as the Nevada law permitted and arrangements for a second marriage made in such a way that this event could take place as soon as the divorce was granted. There was an almost immediate return to Milwaukee where defendant had and has since maintained a substantial business.
As against this we have the protestations of defendant that he left the state meaning never to return; that the climate and business prospects in Nevada are such that he proposes to, stay there indefinitely and that his return to Wisconsin was solely for the purpose of supervising his business and preserving it for ultimate transfer to his son who is now only sixteen years of age. In addition to this, defendant testified that he had invested in real estate and built a home. In fact, he had bought seven acres of land at a cost of $750 and built a cabin on it at a cost of $780. In view of defendant's net worth and standards of living it appears to me that these investments are trivial in amount and significance. So far as his statements of subjective intention are concerned it appears to me that his actions speak much louder than his words and that as a matter of law the findings are against the great weight of the evidence.
There is also some rather nebulous testimony concerning possible business ventures in Nevada. This appears to me to be of inconsequential weight. In may be that there is some evidence favorable to defendant and that in a jury case a finding of good faith could not be set aside as wholly unsupported but the familiar doctrine that the findings of a trial court must not be against the great weight and clear preponderance of the evidence assumes that there is some evidence to support the trial judge but requires that it be not outweighed by the contrary evidence. It appears to me that where defendant's actions point so strongly to a simulated residence and not a bonafide domicile they outweigh as a matter of law his own subjective evidence.
I am authorized to state that Mr. Justice HUGHES concurs in this opinion. *Page 266