O.C.G.A. § 19-2-1 (2019)

Annotations

Law reviews. For note discussing the constitutional implications of higher nonresident tuition fees charged by state universities, see 8 Ga. St. B.J. 86 (1971).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION ROLE OF JURY APPLICATION

DOMESTIC RELATIONS General Consideration

Applicability of section. - Law was not intended to apply in determining whether person had lost domicile acquired in this state and has become domiciled in some other state. Williams v. Williams, 191 Ga. 437, 12 S.E.2d 352, 1940 Ga. LEXIS 654 (1940). Establishment of residence. - Law required both act and intent to establish residence, and either without the other was insufficient. Bufford v. Bufford, 223 Ga. 133, 153 S.E.2d 718, 1967 Ga. LEXIS 439 (1967). Domicile of man having family. - Domicile of man having family was place where family shall permanently reside, if in this state. Grimaud v. Knox-Georgia Homes, Inc., 210 Ga. 514, 81 S.E.2d 476, 1954 Ga. LEXIS 365 (1954). “Family” defined. - No definition of the word “family” as used in the law would be satisfactory that does not convey the idea of unity of the household in which were gathered the members of the family as one collective body under the management or control of the head thereof. Forlaw v. Augusta Naval Stores Co., 124 Ga. 261, 52 S.E. 898, 1905 Ga. LEXIS 701 (1905). Meaning of the word “family” is not necessarily identical with the meaning of the same word as used in the homestead and exemption laws, and there was a still further variation from the meaning in criminal laws and police regulations. Forlaw v. Augusta Naval Stores Co., 124 Ga. 261, 52 S.E. 898, 1905 Ga. LEXIS 701 (1905). “Permanently” defined. - Word “permanently” is used in these provisions in contradistinction from the word “temporarily.” Alvaton Mercantile Co. v. Caldwell, 34 Ga. App. 151, 128 S.E. 781, 1925 Ga. App. LEXIS 96 (1925); Grimaud v. Knox-Georgia Homes, Inc., 210 Ga. 514, 81 S.E.2d 476, 1954 Ga. LEXIS 365 (1954). “Residence” and “domicile” were not synonymous and convertible terms. Worsham v. Ligon, 144 Ga. 707, 87 S.E. 1025, 1916 Ga. LEXIS 99 (1916); Avery v. Bower, 170 Ga. 202, 152 S.E. 239, 1930 Ga. LEXIS 420 (1930); Bass v. Bass, 222 Ga. 378, 149 S.E.2d 818, 1966 Ga. LEXIS 491

(1966); Pugh v. Jones, 131 Ga. App. 600, 206 S.E.2d 650, 1974 Ga. App. LEXIS 1487 (1974). Trial court erred in finding that venue was proper in Effingham County, Georgia because the defendant, who maintained residences in both Effingham County and Chatham County, Georgia, was domiciled in Chatham County. Oglesby v. Deal, 311 Ga. App. 622, 716 S.E.2d 749, 2011 Ga. App. LEXIS 805 (2011). “Domicile,” unlike “residence,” means permanent place of abode, whereas “residence” is not necessarily permanent, and may be at some place other than the place of domicile. Avery v. Bower, 170 Ga. 202, 152 S.E. 239, 1930 Ga. LEXIS 420 (1930). Actual residence and intention to remain. - There must be concurrence of actual residence and intention to remain to acquire domicile. Forlaw v. Augusta Naval Stores Co., 124 Ga. 261, 52 S.E. 898, 1905 Ga. LEXIS 701 (1905); Worsham v. Ligon, 144 Ga. 707, 87 S.E. 1025, 1916 Ga. LEXIS 99 (1916); Avery v. Bower, 170 Ga. 202, 152 S.E. 239, 1930 Ga. LEXIS 420 (1930); Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314, 1981 Ga. LEXIS 585 (1981). Prerequisites to change of domicile. - In order to change a person’s domicile, a person must actually remove to another place with a present intention of remaining there as that person’s place of domicile, or having removed, avow that person’s intention of remaining there as the person’s place of domicile, but such avowal may be proved by express declaration or acts equivalent thereto. Worsham v. Ligon, 144 Ga. 707, 87 S.E. 1025, 1916 Ga. LEXIS 99 (1916); Bass v. Bass, 222 Ga. 378, 149 S.E.2d 818, 1966 Ga. LEXIS 491 (1966). For a person to change that person’s domicile, it is essential that the person should have a bona fide intent to make the change. In addition, the person must also declare an intent to change the person’s domicile and do some act in execution of such intent. Brandt v. Buckley, 147 Ga. 389, 94 S.E. 233, 1917 Ga. LEXIS 206 (1917). To effect a change of domicile there must be an avowed intent, which may be

shown by declarations or acts equivalent thereto, and an actual removal. Bellamy v. Bellamy, 187 Ga. 804, 2 S.E.2d 413, 1939 Ga. LEXIS 769 (1939). Person may have several residences, but only one domicile. Avery v. Bower, 170 Ga. 202, 152 S.E. 239, 1930 Ga. LEXIS 420 (1930). Change in domicile involves exercise of volition and choice. - As to a person sui juris, the matter of making a change in domicile is one involving the exercise of volition and choice. Stanfield v. Hursey, 36 Ga. App. 394, 136 S.E. 826, 1927 Ga. App. LEXIS 88 (1927). There must be either tacit or explicit intention to change one’s domicile before there is a change of legal residence. Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314, 1981 Ga. LEXIS 585 (1981). When length of stay away from domicile immaterial. - When an individual travels away from that individual’s domicile for a time, it is immaterial whether such a stay is for one month or any number of months, provided it does not become so extended that it could be reasonably inferred that there is an actual intention to make a change of domicile. Venable v. Long Realty Co., 46 Ga. App. 803, 169 S.E. 322, 1933 Ga. App. LEXIS 251 (1933). There may be residence for long time at place not intended as permanent abode. - See Bush v. State, 10 Ga. App. 544, 73 S.E. 697, 1912 Ga. App. LEXIS 606 (1912). Rules stated in this section determine where suit should be instituted. Daniel v. Sullivan, 46 Ga. 277, 1872 Ga. LEXIS 52 (1872). Domicile for purpose of legal action. - Domicile or legal residence for the purpose of action exists when there has been a concurrence of an actual residence and an intention to remain there permanently, which intention may be proved by acts. Mayo v. Ivan Allen-Marshall Co., 51 Ga. App. 250, 180 S.E. 20, 1935 Ga. App. LEXIS 651 (1935). One’s legal residence for purpose of being sued was necessarily the same county as the person’s domicile where domicile was determined by this statute.

Pugh v. Jones, 131 Ga. App. 600, 206 S.E.2d 650, 1974 Ga. App. LEXIS 1487 (1974). Role of Jury Question of domicile is mixed question of law and fact, and is ordinarily one for jury and should not be determined by the court as a matter of law except in plain and palpable cases. Williams v. Williams, 226 Ga. 734, 177 S.E.2d 481, 1970 Ga. LEXIS 660 (1970), overruled, Ogden Equipment Co. v. Talmadge Farms, Inc., 232 Ga. 614, 208 S.E.2d 459, 1974 Ga. LEXIS 1028 (1974); Pugh v. Jones, 131 Ga. App. 600, 206 S.E.2d 650, 1974 Ga. App. LEXIS 1487 (1974); Milton v. Wilkes, 152 Ga. App. 362, 262 S.E.2d 624, 1979 Ga. App. LEXIS 2929 (1979). Question of bona fides of intent to change domicile is one for jury determination. Brandt v. Buckley, 147 Ga. 389, 94 S.E. 233, 1917 Ga. LEXIS 206 (1917). Residence was a question of fact to be determined by the jury, so far as it involves ascertainment of the intention of the party. Jordan v. Carter, 60 Ga. 443, 1878 Ga. LEXIS 496 (1878); Battle v. Braswell, 107 Ga. 128, 32 S.E. 838, 1899 Ga. LEXIS 23 (1899); Forlaw v. Augusta Naval Stores Co., 124 Ga. 261, 52 S.E. 898, 1905 Ga. LEXIS 701 (1905); Mims v. Jones, 135 Ga. 541, 69 S.E. 824, 1910 Ga. LEXIS 27 (1910); Smith v. Smith, 136 Ga. 197, 71 S.E. 158, 1911 Ga. LEXIS 481 (1911). Defendant’s liability to suit. - Whether defendant was liable to suit as resident was question for jury. Jordan v. Carter, 60 Ga. 443, 1878 Ga. LEXIS 496 (1878). Question of domicile may be withdrawn from jury only if the evidence demands a finding that there has not been a change of domicile. Milton v. Wilkes, 152 Ga. App. 362, 262 S.E.2d 624, 1979 Ga. App. LEXIS 2929 (1979). Application Change of domicile not shown. - Trial court did not err when the court denied the father’s motion to move a child custody action from Gwinnett County to DeKalb County because the father had

Application (Cont’d) not proved domicile in DeKalb County; while the father testified that the father moved to DeKalb County, the father’s driver’s license showed a Gwinnett County address eight months later and the father had not notified the father’s homeowner’s insurance company or the Internal Revenue Service of the move. Goyal v. Fifadara, 324 Ga. App. 567, 751 S.E.2d 190, 2013 Ga. App. LEXIS 893 (2013). Dismissal for lack of residency affirmed. - Trial court’s finding that a wife was not a resident of DeKalb County, Georgia, and its order dismissing her DeKalb County divorce case were affirmed where the parties had sold their home in Georgia six months before the divorce was filed, and the wife’s tax forms stated that she did not maintain a home in the United States, but rather that her bona fide residence was in South Africa; although the wife claimed that she intended to return to DeKalb County, the trial court properly applied the principle that the testimony of a party who offered herself as a witness in her own behalf at trial was to be construed most strongly against her when it was self-contradictory, vague, or equivocal. Conrad v. Conrad, 278 Ga. 107, 597 S.E.2d 369, 2004 Ga. LEXIS 462 (2004). Person’s domicile is not changed merely by the person’s enlistment in Army and that person’s transfer or assignment by military order to another jurisdiction. Squire v. Vazquez, 52 Ga. App. 712, 184 S.E. 629, 1936 Ga. App. LEXIS 231 (1936). Father did not reside in Georgia for purposes of recording and modifying an Alabama child support order under O.C.G.A. § 19-11-172(a) of the Uniform Interstate Family Support Act, O.C.G.A. § 19-11-100 et seq., because while the father had been stationed in Georgia in the Army, the father was registered to vote in Alabama, had a driver’s license there, and lived in Alabama with his wife, two sons, and his father; thus, the father was domiciled in Alabama for the purposes of O.C.G.A. § 19-2-1. Kean v. Mar-

shall, 294 Ga. App. 459, 669 S.E.2d 463, 2008 Ga. App. LEXIS 1264 (2008). Military personnel may change domicile. - It is as competent for a soldier to abandon the soldier’s domicile or residence and acquire a new one as it is for any other citizen to do so. Engram v. Faircloth, 205 Ga. 577, 54 S.E.2d 598, 1949 Ga. LEXIS 563 (1949); Smiley v. Davenport, 139 Ga. App. 753, 229 S.E.2d 489, 1976 Ga. App. LEXIS 1976 (1976). Effect of transfer to mental hospital on domicile. - Person’s domicile is not changed merely by the person’s transference to a mental hospital located in another jurisdiction, nor by an adjudication of a court of competent jurisdiction that the person is of unsound mind, remanding the person to a hospital for the insane, nor is the person’s domicile changed by the appointment of a guardian for the person’s estate. Squire v. Vazquez, 52 Ga. App. 712, 184 S.E. 629, 1936 Ga. App. LEXIS 231 (1936). Mentally incompetent person may lack capacity to intend change of domicile. - Person who is mentally incompetent and who moves from one place to another may lack the mental capacity to change his or her domicile. Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314, 1981 Ga. LEXIS 585 (1981). Boarding. - When a single person boards and lodges four nights in the week in a certain district for the purpose of teaching school such district will constitute the person’s residence. Hinton v. Lindsay, 20 Ga. 746, 1856 Ga. LEXIS 144 (1856). Criminal flight from state. - Change of domicile is not effected by a person fleeing from the state after wounding another when the person’s family continues to live in the former state. Barrett & Williford v. Black, Cobb & Co., 25 Ga. 151, 1858 Ga. LEXIS 34 (1858). Domicile of convict sent to a penitentiary in a county other than that of the convict’s domicile is not changed by this reason. Barton v. Barton, 74 Ga. 761, 1885 Ga. LEXIS 393 (1885). Effect of abandoning family. - When a man has a family but has abandoned the family, the man’s residence

must be determined under the latter part of the section, namely, that pertaining to persons with no family. Gilmer v. Gilmer, 32 Ga. 685, 1861 Ga. LEXIS 256 (1861); Smith v. Smith, 136 Ga. 197, 71 S.E. 158, 1911 Ga. LEXIS 481 (1911). Change of residence by wife. - Wife cannot, in the absence of the husband, and without his consent, change the family residence so as to change the husband’s venue. Sindall v. H.C. Thacker & Co., 56 Ga. 51, 1875 Ga. LEXIS 308 (1875). Pendency of divorce proceeding in another state. - Mere pendency of a suit for divorce in another state, which was dismissed only a short time before the filing of a suit for divorce in this state, does not disprove the positive testimony of the plaintiff that the plaintiff had been a bona fide resident of this state for 12 months prior to the filing of the plaintiff’s suit. Bellamy v. Bellamy, 187 Ga. 804, 2 S.E.2d 413, 1939 Ga. LEXIS 769 (1939). Residence taken upon marital separation not domicile when husband disavows as such. - When the husband had lived with the wife in the county in which a suit for divorce and alimony was filed and took an apartment in another county upon their separation which he disavowed as his domicile, he did not abandon the former county as his domicile. Smith v. Smith, 223 Ga. 551, 156 S.E.2d 916, 1967 Ga. LEXIS 603 (1967). In a family violence case in which the respondent has left the family home but has not avowed an intention to remain in that new location, venue is proper both in the county of the family’s residence and in the county to which the respondent has relocated. Davis-Redding v. Redding, 246 Ga. App. 792, 542 S.E.2d 197, 2000 Ga. App. LEXIS 1362 (2000). No intention to abandon residence. - Man having a permanent residence in one county does not lose such residence by accepting a contract in another county, and renting a house in the latter county to which he moved his family, when it is not his intention to abandon his former domicile in the county first referred to. Knight

v. Bond, 112 Ga. 828, 38 S.E. 206, 1901 Ga. LEXIS 103 (1901). Second house rented for special purpose not domicile. - Fact that defendant removed to another county and there rented a house did not constitute a change of domicile since the removal was for the purpose of educating children, the former home was maintained, the incidents of citizenship there discharged, and there was at no time an intention to provide a fixed place of abode in the place of removal, or to there establish permanent residence. Alvaton Mercantile Co. v. Caldwell, 34 Ga. App. 151, 128 S.E. 781, 1925 Ga. App. LEXIS 96 (1925). Temporary departure from domicile. - If a person leaves the place of the person’s domicile temporarily, or for a particular purpose, and does not actually remove to another place with the intention of remaining there indefinitely, the person will not be considered as having changed the person’s legal residence. Venable v. Long Realty Co., 46 Ga. App. 803, 169 S.E. 322, 1933 Ga. App. LEXIS 251 (1933); Smith v. Smith, 223 Ga. 551, 156 S.E.2d 916, 1967 Ga. LEXIS 603 (1967). Temporary absence from county by man who has no family does not operate to change domicile. Bellamy v. Bellamy, 187 Ga. 804, 2 S.E.2d 413, 1939 Ga. LEXIS 769 (1939). Evidence sufficient to appoint father as guardian of adult autistic son who desired to change domicile to Georgia. - Decision granting a father guardianship of an adult autistic son was supported by sufficient evidence based on the son’s desire to change domicile to the father’s home, the son’s desire to engage in more activities while at the father’s home, as well as the testimony of the attorney appointed for the son, who indicated that while the son undoubtedly faced certain challenges due to autism, the son was not so mentally impaired to lack capacity to choose Georgia as the son’s domicile. In the Interest of M. P., 338 Ga. App. 696, 791 S.E.2d 592, 2016 Ga. App. LEXIS 531 (2016).

OPINIONS OF THE ATTORNEY GENERAL Domicile is broader and more fundamental concept than mere residence. 1958-59 Ga. Op. Att’y Gen. 91. Domicile means one’s fixed and permanent place of abode, to which, when one is absent therefrom, one intends to return. 1958-59 Ga. Op. Att’y Gen. 91; 1963-65 Ga. Op. Att’y Gen. 375. Person’s domicile is principally question of intent; one acquires domicile by residing in a particular place with the intention of remaining there indefinitely; taking up temporary residence in other places, even for long periods of time, will not result in loss of one’s domicile as long as the intent to return prevails. 1962 Ga. Op. Att’y Gen. 144. Residence and domicile distinguished. - Residence means living in a particular locality; domicile means living in that locality with the intent to make it a fixed and permanent home. Residence requires only physical presence as an inhabitant in a given place, while domicile requires presence in that place as well as an intention to make it a domicile. A new domicile cannot be acquired simply by change of residence without an intention to abandon the old domicile. A person may continue to be domiciled in this state even though actually residing in another state. 1965-66 Op. Att’y Gen. No. 65-22. One cannot change domicile by merely assuming residence in new location without intention to remain there; physical presence in the new location must coexist with the requisite intention to remain there. 1958-59 Ga. Op. Att’y Gen. 91; 1963-65 Ga. Op. Att’y Gen. 375. Change of domicile requires physical move and intention to remain. - In order to change one’s domicile it is necessary that one move from one’s old domicile and become a resident in the proposed new domicile with the intention to remain there permanently or at least indefinitely. 1958-59 Ga. Op. Att’y Gen. 91. Domicile retained until officially established elsewhere. - Person, having established domicile within this state, will retain the person’s domicile here until

the person officially establishes domicile in another state. 1976 Op. Att’y Gen. No. 76-70. Temporary residence does not change domicile. - Temporary residence of a person with the person’s family in another county while the person was performing a contract in that county does not result in a change of domicile. 1958-59 Ga. Op. Att’y Gen. 92. Temporary residence of wife and family for special purpose. - While it is provided that the domicile of a married man shall be the place where his family resides, the wife or the wife and family may, for purposes of temporary convenience or for the purpose of educating the children, reside for a long time at a place not intended as a permanent abode, without effecting any change of legal residence; this for the reason that while there is a physical removal, there was never, on the part of those who moved, an intention to abandon a former domicile. 1958-59 Ga. Op. Att’y Gen. 92. One may have two or more residences at same time, but every person has but one domicile. 1958-59 Ga. Op. Att’y Gen. 91. Extension of land into district immaterial as to domicile. - Fact that a candidate’s land extends into a district is immaterial; in order to qualify as a candidate from that district, one’s house must be within the boundaries of that district and one must be physically present in that district. 1968 Op. Att’y Gen. No. 68-273. Members of armed forces never lose their domicile merely by joining service, and in response to military orders, moving about from state to state or abroad; they retain the domicile they held at the time they entered the service, unless they indicate that it is their intention to remove their domicile to some other state in which they are residing. 1958-59 Ga. Op. Att’y Gen. 91. While a person in military service may change the person’s domicile, the mere enlistment in the armed forces and transfer by military order does not necessarily change the domicile. 1965-66 Op. Att’y Gen. No. 65-22.

No change effected when military personnel have no intent to change domicile. - That a legal resident of a county is absent from the county in the military service of the United States for a long period of time with no intent to change the person’s residence does not effect a change. 1945-47 Ga. Op. Att’y Gen. 478. Military personnel intending to re-

main in Georgia. - If one moved to Georgia with intention of remaining when returning from military, one may consider Georgia one’s domicile. 1965-66 Op. Att’y Gen. No. 66-190. Noncitizens of United States may acquire domicile in Georgia for purposes of attending state supported college or university. 1960-61 Ga. Op. Att’y Gen. 128.

RESEARCH REFERENCES Am. Jur. 2d. 25 Am. Jur. 2d, Domicile, §§ 1, 19 et seq. Am. Jur. Proof of Facts. Nonestablishment of Domicil in Foreign Jurisdiction, 4 POF2d 595. Establishment of Person’s Domicil, 39 POF2d 587. C.J.S. 28 C.J.S., Domicil, §§ 2, 15 et seq. ALR. Acquisition of domicile in countries (such as China, Turkey, and Egypt) granting extraterritorial privileges to foreigners, 39 A.L.R. 1155. Significance of place where one votes or registers to vote on question as to his domicile or residence for other purposes, 107 A.L.R. 448. Change of domicile by public officer or employee, 129 A.L.R. 1382.

Residence or domicile for purposes of venue statute of student, teacher, or inmate of institution, 132 A.L.R. 509. Domicile or residence of person in the armed forces, 150 A.L.R. 1468; 151 A.L.R. 1465; 152 A.L.R. 1462; 153 A.L.R. 1434; 154 A.L.R. 1460; 155 A.L.R. 1461; 156 A.L.R. 1459; 157 A.L.R. 1457; 158 A.L.R. 1464. Effect on jurisdiction of court to grant divorce, of plaintiff’s change of residence pendente lite, 7 A.L.R.2d 1414. Acquisition of domicile by sending wife or family to new home, 31 A.L.R.2d 775. Validity and application of provisions governing determination of residency for purpose of fixing fee differential for out-ofstate students in public college, 56 A.L.R.3d 641.