Oregon Advisory Opinions April 28, 1964: OAG 64-48 (April 28, 1964)
Collection: Oregon Attorney General Opinions
Docket: OAG 64-48
Date: April 28, 1964
Advisory Opinion Text
OAG 64-48.
You ask to be advised whether or not a serviceman stationed in Oregon has acquired legal residence in this state for the purpose of determining the residency of an infant sought to be placed in Fairview Home.
ORS 427.065 and 427.230 provide respectively that no mentally deficient person not having been a resident of this state for at least one year may be admitted to Fairview Home either on commitment by a court or voluntary application of the person having custody of a minor.
The father of the infant, an air force serviceman, entered the service in California but contends that he has established residence in Oregon, that he has for some time considered Oregon his home, that he rents a home off the base although he has not purchased a house here because of his low salary, that he is a registered voter in Oregon, that he has Oregon resident fishing and hunting licenses, that his automobile is registered here and that he and his wife are filing Oregon resident income tax returns. His wife is employed in Oregon and he is a part-time employe in a firm in this state and expects to become a full-time employe in this firm when he is discharged from the service.
Ordinarily where residence is made a qualification for the enjoyment of a privilege, residence and domicile are considered as synonymous. Opinions of the Attorney General, 1920-1922, p. 515; 1950-1952, p. 212; 1960-1962, p. 159. In this sense residence means not merely that a person intends to live in a place but that he intends to make that place his home. The fact that a person is a serviceman does not prevent the acquisition of a domicile under common law rules. Zimmerman v. Zimmerman, (1945) 175 Or. 585, 590, 603, 607, 609, 155 P. (2d) 293, but there must be clear proof of intent. To create domicile bodily presence in the place and an intention to remain at that place and make it home are necessary. Hughes v. Illinois Aid Commission, (1954) 2 Ill. (2d) 374, 118 N.E. (2d) 14, 17, 43 A.L.R. (2d) 1421. The rules are more fully stated in In re Noyes' Estate, (1947) 182 Or. 1, 14, 185 P. (2d) 555, as follows:
"* * * It is sufficient to say here that to constitute domicile there must be both the fact of a fixed habitation or abode in a particular place and an intention to remain there permanently and indefinitely; and that to constitute change of domicile three things are essential: (1) residence in another place; (2) an intention to abandon the old domicile; and (3) an intention of acquiring a new one. * * *"
As a general rule an infant's residence follows that of his father. 28 C.J.S., Domicile, § 12, pp. 21, 22; and see Lorenz v. Royer et ux., (1952) 194 Or. 355, 368, 241 P. (2d) 142, 242 P. (2d) 200.
The intention to establish or change domicile must be evidenced by proof. A heavier burden of proof rests upon a serviceman to establish such intention as his sojourn in this state under military orders is not voluntary, and there must be evidence of intent beyond mere physical presence in the state. Volmer v. Volmer, (1962) 231 Or. 57, 371 P. (2d) 70. The Volmer case points out that, depending upon all the facts, a serviceman's motor vehicle registration, voting registration and employment may or may not serve as evidence of domiciliary intent. In the case of In re Noyes' Estate, supra, 182 Or. at 17, it is said:
"* * * while a member of the armed forces can abandon a domicile and acquire another, it requires the clearest and most unequivocal proof to show that he has done so during his term of enlistment. * * *"
The evidence offered in support of change of residence should therefore be carefully verified and, if true and no evidence of a contrary intent appears, residence may be regarded as established. Since the child's residence follows that of the father, the serviceman's infant daughter would be qualified for admission to Fairview Home as an Oregon resident provided the father has established and maintained residence in Oregon for the required length of time.