Christine Adoteye v Philip C. Adoteye

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia
CHRISTINE ADOTEYE
OPINION BY
v. 	Record No. 1256-99-4 	JUDGE JERE M. H. WILLIS, JR.
APRIL 18, 2000
PHILIP C. ADOTEYE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge
Mary Elliott for appellant.
Kathryn E. Coward (Bobby B. Stafford; The Law
Offices of Raby & Stafford, on brief), for
appellee.
On appeal from a final order dismissing her divorce suit
for lack of jurisdiction, Christine Adoteye contends that the
trial court erred in ruling that she was not a bona fide
resident of Virginia. 	We affirm the judgment of the trial
court.1
Philip and Christine Adoteye were married in 1979 in Ghana.
Mr. Adoteye moved to Virginia in 1982, and Mrs. Adoteye followed
in August 1983. 	In September 1985, the couple purchased a home
1 Philip Adoteye contends that the transcript of proceedings
before the commissioner in chancery should be stricken from the
record for non-compliance with the requirements of Rule 5A:8(b).
However, he has failed to demonstrate resulting prejudice. 	We
reject his contention. 	Furthermore, a statement of facts was
properly prepared and made a part of the record, pursuant to
Rule 5A:8(c).

in Fairfax County. 	All three of their children were born in
Virginia. 	Both Mr. and Mrs. Adoteye are employed by the World
Bank. 	Mrs. Adoteye holds a G-4 visa, which is a non-immigration
visa issued to foreign nationals who live in the United States
while working for certain international organizations, including
the World Bank. 	See 8 U.S.C. § 1101(a)(15)(G)(iv). 	The visa is
conditioned upon her World Bank employment and will expire if
that employment ceases.
On February 23, 1995, the Adoteyes separated. 	On March 8,
1995, the Fairfax County Juvenile and Domestic Relations
District Court entered a consent order determining issues of
custody, visitation, child support, spousal support, and
possession of the marital residence. 	Pursuant to that order,
Mrs. Adoteye continues to reside at the former marital home in
Fairfax County.
After the separation, Mr. Adoteye filed for divorce in
Ghana. 	Mrs. Adoteye objected to Ghana's jurisdiction on the
ground that she was a resident of the United States. 	In January
1998, the Ghanese court awarded Mr. Adoteye a divorce and
subsequently granted him custody of one child and ownership of
the Fairfax County residence. 	Mrs. Adoteye is appealing that
decree in Ghana.
In October 1996, Mrs. Adoteye filed in the trial court a
bill of complaint seeking a divorce. 	The trial court dismissed
her bill of complaint for lack of jurisdiction, ruling that she
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had not proved bona fide residence in Virginia as required by
Code § 20-97.
Code § 20-97 provides, in relevant part:
No suit for annulling a marriage or for
divorce shall be maintainable, unless one of
the parties is and has been an actual bona
fide resident and domiciliary of this
Commonwealth for at least six months
preceding the commencement of the suit
. . . .
Id. 	"That one of the parties 'is and has been an actual bona
fide resident of this State for at least [the requisite period
of time] preceding the commencement of the suit for divorce' is
essential to the maintenance of the suit and must be established
by evidence introduced in the cause, or the suit should be
dismissed." 	Hiles v. Hiles, 164 Va. 131, 139, 178 S.E. 913, 916
(1935) (citation omitted).
[T]o have been an "actual bona fide resident
of this State" . . . means to have had in
this State throughout that period an actual
bona fide permanent abode, as
contradistinguished from a sojourn, or
transitory abode . . . .
"[P]ermanent abode" means "a for the time
being fixed or permanent habitation, or
place or locality of abode," and "transitory
abode" means a "transitory habitation, or
place or locality of abode."
* 	* 	* 	* 	* 	* 	*
[T]o establish the continued maintenance of
a place or locality within Virginia as his
permanent abode, something more is necessary
than the mere fact that he has always
entertained an intention ultimately to
[remain in] and physically reside in
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Virginia and has had no intention of
establishing a permanent residence
elsewhere. 	There must be some evidence of
concurring acts or forbearances to act which
tend to show the actual continued
maintenance in good faith of some place or
locality in Virginia as and for his
permanent abode. 	Neither the unexpressed
nor the mere expressed intention to so
maintain a place or locality in Virginia as
his permanent abode, is alone sufficient to
constitute the maintenance thereof as such.
Id. at 137-38, 178 S.E. at 915-16. 	"Domicile contemplates
living in a place with the intent to remain there permanently or
for an indefinite period of time." 	Rock v. Rock, 7 Va. App.
198, 202, 372 S.E.2d 211, 213 (1988).
The determination of domicile and bona fide residence is a
mixed question of law and fact, reviewable on appeal. 	See
Talley v. Commonwealth, 127 Va. 516, 522, 103 S.E. 612, 614
(1920). 	On appeal, the fact finding component of that
determination is given deference. 	See Patterson v. Patterson,
257 Va. 558, 564, 515 S.E.2d 113, 116 (1999) ("[G]reat deference
is accorded a trial court's factual findings.").
Mrs. Adoteye contends that she satisfied the requirements
of Code § 20-97. 	She argues that she proved that she has
resided in Virginia since 1983, that she owns a home in Fairfax
County, that her children were born in and live in Virginia and
speak only English, that she has never returned to Ghana for
longer than six weeks at a time, referring to these trips as
"vacations," that she holds a Virginia driver's license, has
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bank accounts in Virginia, has registered automobiles in
Virginia, submitted to the jurisdiction of the Fairfax County
Juvenile and Domestic Relations District Court, owns no real
property in Ghana, has never paid taxes in Ghana, and has stated
her intention to remain indefinitely in Virginia. 	These
circumstances, together, create a persuasive package. 	However,
these circumstances, separately and in their totality, are also
consistent with a transitory sojourn in Virginia.
Mrs. Adoteye is a citizen of Ghana. 	She resides in
Virginia on a G-4 visa, a non-immigration visa issued to foreign
nationals who live in the United States while working for
certain international organizations. 	Her right to remain in the
United States, and in Virginia, is dependent upon the
continuation of her employment. 	Should her employment cease,
her right to remain in the United States will expire. 	In the
face of this situation, she has taken no step to secure
citizenship or an immigration visa. 	She argues that she has
continued under the G-4 visa because of financial benefits
afforded by the World Bank to foreign employees sojourning in
this country under G-4 visas. 	We respect her right to make this
election. 	However, continuation under a G-4 visa is
inconsistent with intent to become a permanent, bona fide
resident and domiciliary of Virginia.
Mrs. Adoteye has refrained from paying federal or state
income taxes, availing herself of the exemption afforded alien
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employees, such as she. 	Again, we respect her right to make
this election. 	However, we view this election in the same light
as we view her continuation under the G-4 visa.
Considering the countervailing evidence, the commissioner
in chancery determined that Mrs. Adoteye had not proved that she
was an actual, bona fide resident and domiciliary of the
Commonwealth. 	The trial court affirmed that determination. 	We
cannot say that this determination was plainly wrong. 	The
judgment of the trial court is affirmed.
Affirmed.
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