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06/02/87 MARRIAGE MAX BERC v. CAROL ANN BERC

June 2, 1987

IN RE THE MARRIAGE OF: MAX BERC, SR., PETITIONER, APPELLANT
v.
CAROL ANN BERC, RESPONDENT



Appeal from Washington County, District Court, Hon. Howard R. Albertson, Judge.

Randall, Presiding Judge, Wozniak, Judge, and Nierengarten, Judge.

The opinion of the court was delivered by: Randall

The trial court erred by failing to make findings on appellant's claim of domicile under Minn. Stat. § 518.07 (1984). We remand for a hearing to fully develop appellant's evidence on domicile.

Reversed and remanded.

RANDALL, Judge.

Appellant brought this action for dissolution seeking joint legal and sole physical custody of the parties' minor children. Respondent later filed a divorce action in Hawaii, where she and the children live, seeking custody of the children. Four days before respondent filed the Hawaii action, appellant moved the Washington County Court for temporary custody of the children, claiming he was their primary caretaker. The Washington County court dismissed the entire dissolution action, determining it lacked jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), Minn. Stat. § 518A.03, subds. 1(a)(1), 1(b), and 1(d)(1984). Max Berc appeals the dismissal, claiming he is a domicilliary of Minnesota and that Minnesota has jurisdiction over the dissolution pursuant to Minn. Stat. § 518.07. We reverse and remand for a hearing to determine whether appellant is a domicilliary of Minnesota under Minn. Stat. § 518.07. *fn1

FACTS

The parties were married in Honolulu, Hawaii, January 4, 1983. They have three children, and appellant adopted respondent's daughter from her previous marriage. The parties separated May 12, 1986.

The parties began vacationing in Hawaii during the winter months several years ago. From mid-November 1982 to June 1983 and mid-November 1983 to June 1984, they lived in Hawaii and spent the balance of the year in Minnesota. In June 1984, they purchased a home in Hawaii. Between August 1984 and their separation in May 1986, they lived in Hawaii from August to June so the children's school year would not be interrupted, and returned to Minnesota for two months during the summer. When the parties separated, appellant returned to Minnesota. Respondent and the children remained in Hawaii.

Before the marriage, the parties purchased a home in joint tenancy in Stillwater, Minnesota. When they later purchased their Hawaii home, they put the Stillwater home up for sale. The Stillwater home did not sell, and when the parties separated, appellant moved into the home and took it off the market.

Appellant is 72 years old and is the president and sole shareholder of Wholesale Produce Supply, a corporation located in Minnesota. He is semi-retired, and manages his interest in the corporation by remaining in daily telephone contact, and by traveling to Minnesota approximately four times each year. Wholesale Produce is also licensed to do business in Hawaii, and owns property in Hawaii. Respondent owns a small gift shop which is incorporated in Hawaii. *fn2

At the temporary hearing, the court dismissed the entire dissolution for lack of jurisdiction under the UCCJA. Respondent appeared at the hearing by affidavit, solely to contest the district court's jurisdiction over the dissolution.

In appellant's affidavit, he claims he is a domicilliary of Minnesota based on the following facts: He and respondent filed joint Minnesota income tax returns in 1983 and 1984. He asserts that his residence is the parties' Stillwater home. He alleged he pays tax on the Hawaii residence at non-homestead rates and on the Stillwater home at homestead rates. He is registered to vote in Minnesota and voted here in 1982 and 1984. He has bank accounts in Minnesota and has a Minnesota driver's license. He asserts that, although he has lived in Hawaii the last few years, he intends that Minnesota be his permanent home and has no intent to make Hawaii his permanent home. He claims he wintered in Hawaii at first because he did not like Minnesota winters, and that he lengthened his stay only to avoid having to transfer the children from Minnesota to Hawaii schools in the middle of the school year. He argues that the length of time he spent in Hawaii should not be determinative, and that he can be domiciled in Minnesota yet live in Hawaii most of the year.

Respondent offers the following in support of a conclusion that appellant is not a domicilliary of Minnesota, and is a resident of Hawaii: Since 1982, appellant has lived in Hawaii the majority of the time, except for summer visits to Minnesota, and he planned to make Hawaii his home. He was retiring and selling off his business. The house in Stillwater was up for sale when the parties separated, and appellant removed it from the market only after the parties separated. The parties were married in Hawaii. They purchased their home, valued in excess of $600,000, and obtained the mortgage in Hawaii. They purchased cars in Hawaii. The children were baptized and attend school in Hawaii. Appellant financed respondent's business in Hawaii, and appellant obtained his passport there.

Respondent argues the reason appellant has not gotten a Hawaii driver's license is that he fears he will not pass the test. Respondent disputed appellant's claim that he voted in Minnesota in 1984. She claims appellant's ownership of a Minnesota business is not conclusive because appellant is in the process of retiring to Hawaii and reducing his involvement in the business, and that he conducts his business over the phone. She disputes appellant's assertion that the parties have a joint checking account in Minnesota. Finally, she points to Auge v. Auge, where she claims appellant testified under oath that moving the Auge ...


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