Friday, November 10, 2006
Nebraska Supreme Court vacates Douglas County divorce case between Canadian spouses, finding the wife who had resided in Nebraska for over three years failed to prove she had the requisite intent to reside permanently in this state. Supreme court however does not foreclose any divorce that a visiting alien might file.Rozsnyai v. Svacek, 272 Neb. 567 Filed November 9, 2006. No. S-05-876. The Douglas county district court granted a marriage dissolution awarded property and attorneys to the wife after overruling the Husband's objections that the court lacked subject matter and personal jurisdiction. the trial court refused to consider the husband's Canadian attorney's affidavit that the parties divorce in British Columbia remained pending. "One who proves that he or she has met the durational residency requirement for jurisdiction in divorce proceedings set out in § 42-349 shall be permitted the inference that such residency was with the intention to make Nebraska a permanent home, absent a showing that the residency was a sham and not bona fide. Rector v. Rector, 224 Neb. 800, 401 N.W.2d 167 (1987). However, when both parties are foreign citizens and the only party to have resided in Nebraska has done so by reason of a visitor's visa, the inference is negated and specific proof of intention is required. The Supreme Court skirts the husband's assertion however that no alien residing in the US on a visitors visa could establish residence here. "A nonimmigrant alien authorized to reside in this country on a visitor's visa does so on a temporary basis and on the condition that he or she is not abandoning his or her foreign residence. 8 U.S.C. § 1101(a)(15)(B); 8 C.F.R. § 214.2(b) (2006). The residency restrictions placed on a nonimmigrant alien residing on a visitor's visa negates the inference that a nonimmigrant alien intends to reside in Nebraska on a permanent basis merely because he or she has resided in this state for more than 1 year. Thus, in the instant case, the inference created by Rozsnyai's testimony that she has lived in Nebraska since 2001 was negated by the fact that she has done so on a visitor's visa. Because an inference did not arise that Rozsnyai has resided in Nebraska with the intention to make it her permanent home, it was necessary for Rozsnyai to put forth evidence establishing that intent. However, the only evidence presented at trial was Rozsnyai's testimony regarding the length of time she had resided in Nebraska at the time of trial. there may be instances where a nonimmigrant alien is able to establish an intention to reside in a state permanently when the alien has offered proof of that intent apart from his or her presence in that state. See, e.g., Alves v. Alves, 262 A.2d 111 (D.C. App. 1970) (holding husband established domicile for purposes of obtaining divorce in that jurisdiction, despite immigration status); Weber v. Weber, 929 So. 2d 1165 (Fla. App. 2006) (holding nonimmigration status does not bar individual's right to establish residency for purposes of obtaining dissolution of marriage in that state and citing Perez v. Perez, 164 So. 2d 561 (Fla. App. 1964), for proposition that alien's nonpermanent immigration status is factor in determining issue of domiciliary intent); Bustamante v. Bustamante, 645 P.2d 40 (Utah 1982) (noting nonimmigrating aliens may form requisite intent to establish permanent residence for purpose of divorce). However, such evidence is not present in this case. "
Posted by stan_sipple at 3:15 PM