By Thomas M. Kester
Wieviel Uhr ist es? (translation: what time is it?) Time to learn about Vermont’s residency requirements for filing divorce actions. This case involves a couple who globetrotted between Vermont and Germany. And while “home is where the heart is,” that argument won’t fly with the Vermont Supreme Court, especially when factual circumstances point you to living elsewhere. Grab some schnitzel, a wurst, and let’s get this summary rolling like a
Panzerkampfwagen VI Tiger I.
Mom and Dad lived together starting in 2005 in Berlin, Vermont. In 2007, they moved to East Montpelier, and in 2009 their child was born. In October 2010 the parties decided to say Auf Wiedersehen to Vermont and Guten Tag to Germany. As the trial court found, “their hope was to return to the United States when they had saved enough money for a down payment on a house. The parties never intended to relocate to Germany or another foreign country on a permanent basis.” Sounds like a pretty simple plan. But like all simple plans, there are little glitches that get in the way.
In January 2011, the two went back to Vermont for several weeks and again in September 2011 so they could get married in Vermont. But in October 2011 (I’d like to think it was during Oktoberfest), husband traded in his VT driver’s license for a good ol’ Georgia driver’s license. The trial court concluded that the husband was going to take Georgia up on their offer (“Bless your heart—y’all come back now”) over Vermont’s offer (“Keep Vermont green—bring money”) when his escapades in Germany were over. Flash forward to June 2012: the family moved back to Vermont but went back to Germany in October 2012. That was the last time the child was in Vermont. At some point thereafter, the husband looked at buying land in Middlesex, VT but was unable (and the trial court saw this as yet another intent to return to Vermont).
Now tensions arose in the marriage like the suspension on a BMW rounding a hairpin turn on the Autobahn. In September 2013, the parties separated for good. After consulting my accountant, Carrie D. Fore (because lawyers suck at math), she tells me the mom and child were living in Germany for almost four years. Husband returned to Vermont in October 2013 and applied for his driver’s license—again, the trial court saw this as an intent to remain in Vermont. Husband became a little crafty by having his father give his wife a mailing address in Georgia, and arguing that he “was thinking at that time of going to Georgia to see his mother for an extended visit.” The trial court, on the other hand, saw this as potentially “a ruse to avoid service of German court documents,” and found this to be further proof of the husband’s indecision about remaining in Vermont. Between October 2013 and November 2013, Husband had not bought or leased property in Vermont, had not found full-time work, and expressed a possible desire to return to Germany. On November 1, 2013, husband filed for divorce in Washington superior court.
If you are more worried than the German creditors who loaned money to Greece over what the trial court did, allow me to sooth your worries. The trial court found him not a Vermont resident. Further, even if the superior court had jurisdiction to decide this, it couldn’t under something called the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) that Vermont adopted, as the child being away for three and half years from Vermont was “not a ‘temporary absence’ under the UCCJEA.” What a shocker there—I bet that kid went to kindergarten in Germany (can you not see how bad my jokes are getting?).
Husband argues on appeal that both parties are Vermonters because they both “remained domiciled in Vermont throughout their time in Germany.” I can understand that argument—I (a life-long Boston Red Sox fan) wouldn’t turn into a New York Yankee fan just because I went to ballgames at Yankee Stadium for three and a half years (however, I would be praying “Please Gahd, get me back to Bastan. That’d be wicked sweet” every single time). As for the child, the Husband argues that Vermont is their home state and the “UCCJEA must be applied in a way that is consistent with the federal Parental Kidnapping Prevention Act.” Uhhhhhhhhh - interesting legal reference. Names aside, the federal Parental Kidnapping Prevention Act does “not recognize foreign countries as home states.”
The High Court begins (I imagine by playing Michael Bublé’s song Home) by noting that, under Vermont law, one of the parties must be have “resided within the State for a period of six months or more” and that “residency is synonymous with domicile” (like how Anthony Weiner is synonymous with . . . well . . .weiners). Now “domicile” is the place “when absent, he intends to return and from which he has no present purpose to depart.” Like how whenever James Taylor’s eyes are shut, his mind evidences its intent to domicile in Carolina or so his song says. Even a wishy-washy change of residence is effective because “a change of residence is effective even if the person has ‘a nebulous or floating intention of returning at some future time.’” I lived in Southern Florida for a year. Probably at some point when an avalanche of snow from my roof unexpectedly piles on top of my old, decrepit body I am sure I will be contemplating moving down to South Florida again . . . especially as a warm sensation radiates over my body reflecting the terminal symptoms of hypothermia. However, while buried under that cold mass like an Omaha Steak in the mail, I will, nonetheless, have a residency declared as “Vermont.”
Next on the list is that the factual circumstances do not favor Husband’s argument. The question arises not only whether the parties intend to return to the U-S-of-A but whether “they had a fixed intention to return to Vermont after their time in Germany.” Remember that thing the Husband did down in Georgia with his license? Well, the Supreme Court states that “[t]his evidence was sufficient to support the court’s finding that . . . the parties did not intend to return specifically to Vermont.”
Now, the SCOV goes on to play the “define the word” game with “indefinitely” and “permanently” in terms of living somewhere. If you remember from my last post, there is this thing called the dictionary. I tried reading it once: pretty boring and wordy book if you ask me. So “indefinitely” “does not necessarily mean permanently” and to change domicile “one ‘must intend to reside [at the new location] indefinitely with no present or fixed intent to move on upon happening of a reasonably certain event.’” So while husband had evidence that the move wasn’t permanent, “He offered no evidence that the family moved for a definite period, limited either in duration or by the occurrence of specific events.” What sort of “specific events” you may ask. Well things “such as graduation from an educational program in Germany or completion of a specific undertaking” could possibly be acceptable. It’s debatable whether graduation from David Hasselhoff’s School of Hamburger Dining Etiquette would qualify. I’ll leave it to the scholars whether sampling every different beer in Germany is a “specific undertaking” that can be “completed” in a lifetime (if it is, let me know). Lastly, the Court doesn’t reach the UCCJEA argument.
Sweet peaches and cream—where is he a resident then?! The SCOV doesn’t say. But to file the divorce action in Vermont he needs to have resided in Vermont for six months. What can he do in those six months of waiting? Maybe watch some daytime German divorce court?