Adoteye v. Adoteye
527 S.E.2d 453, 32 Va. App. 221, 2000 Va. App. LEXIS 283 (2000)
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Rule of Law:
A person's presence in a state on a temporary, non-immigrant visa that is contingent on employment is inconsistent with the intent to remain permanently, and thus may preclude them from establishing the bona fide residence and domicile required for a court to have divorce jurisdiction.
Facts:
- Philip and Christine Adoteye were married in Ghana in 1979 and moved to Virginia in the early 1980s.
- In 1985, the couple purchased a home in Fairfax County, Virginia, and all three of their children were born in Virginia.
- Both were employed by the World Bank, and Christine Adoteye resided in the United States on a G-4 non-immigrant visa, which was conditioned upon her continued employment and would expire if that employment ceased.
- Christine Adoteye held a Virginia driver's license, maintained bank accounts in Virginia, registered automobiles in the state, and stated her intention to remain in Virginia indefinitely.
- She took no steps to secure United States citizenship or a permanent immigration visa.
- Christine Adoteye availed herself of a tax exemption for alien employees and did not pay federal or state income taxes.
- After the couple separated in 1995, Philip Adoteye obtained a divorce decree in Ghana, which Christine Adoteye opposed by asserting she was a resident of the United States.
Procedural Posture:
- The Fairfax County Juvenile and Domestic Relations District Court entered a consent order on matters of custody, support, and possession of the marital home.
- Christine Adoteye (plaintiff) filed a bill of complaint for divorce against Philip Adoteye (defendant) in the Circuit Court of Fairfax County, the trial court of first instance.
- A commissioner in chancery determined that Christine Adoteye had not proved she was a bona fide resident of Virginia.
- The trial court affirmed the commissioner's determination and dismissed the divorce suit for lack of jurisdiction.
- Christine Adoteye (appellant) appealed the trial court's dismissal to the Court of Appeals of Virginia, with Philip Adoteye as the appellee.
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Issue:
Does a foreign national living in Virginia on a temporary G-4 visa, which is contingent on her employment, establish the "actual bona fide resident and domiciliary" status required for a Virginia court to exercise divorce jurisdiction, despite her long-term physical presence and other connections to the state?
Opinions:
Majority - Judge Jere M. H. Willis, Jr.
No, a foreign national under these circumstances does not establish the requisite status for divorce jurisdiction. To be a bona fide resident and domiciliary under Virginia law, a person must live in the state with the intent to remain there permanently or for an indefinite period. While Christine Adoteye demonstrated numerous ties to Virginia, such as long-term physical presence, home ownership, and raising her children there, these factors were outweighed by countervailing evidence demonstrating a lack of permanent intent. Her legal right to remain in the United States was entirely dependent on her G-4 visa, which is inherently temporary. Her decision to maintain this temporary status, coupled with her failure to seek a more permanent immigration status and her choice to avail herself of tax exemptions for non-residents, are actions inconsistent with an intent to make Virginia her permanent home. Therefore, her presence is more akin to a 'transitory sojourn' than a permanent domicile, and the trial court's finding of no jurisdiction was not plainly wrong.
Analysis:
This decision emphasizes that for the purpose of establishing domicile for divorce jurisdiction, a person's objective actions and legal status can outweigh their stated intent and long-term physical presence. The court heavily weighed the temporary and conditional nature of the G-4 visa, viewing it as fundamentally inconsistent with the intent to remain permanently. This case serves as a precedent that makes it difficult for individuals on non-immigrant, employment-contingent visas to establish domicile, as their very right to be in the country is not permanent. It highlights that choices that leverage foreign status, such as tax exemptions, will be construed as evidence against an intent to become a bona fide resident.
