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Korn v. Korn

decided: June 28, 1968.

ELIAS KORN
v.
JEAN GOLDFARB KORN, APPELLANT



Kalodner, Staley and Seitz, Circuit Judges.

Author: Kalodner

Opinion OF THE COURT

KALODNER, Circuit Judge.

The plaintiff, Elias Korn, filed a complaint against his wife, the defendant, Jean Goldfarb Korn, in the District Court of the Virgin Islands, seeking an absolute divorce on the ground of incompatibility of temperament.*fn1 The defendant filed an answer and counterclaim in which she sought the dismissal of the plaintiff's complaint on the ground of lack of jurisdiction; denied the substantive allegations of the complaint; and requested an order granting her support and costs, including reasonable attorney's fees.

The District Court, to which the case was tried, granted plaintiff an absolute divorce on the grounds of incompatibility of temperament and this appeal followed.

Defendant here challenges the District Court's finding that when the plaintiff commenced his action he "was an inhabitant of the Virgin Islands and was domiciled therein", and its ruling that jurisdiction existed for that reason under the provisions of the Virgin Islands Code.*fn2 She also challenges the District Court's finding as to incompatibility of temperament.

These "background" facts are established by the record:

Plaintiff is an osteopathic physician who practiced his profession in Philadelphia, Pennsylvania, for some thirty-one years prior to his arrival in St. Thomas, Virgin Islands in 1966; he married the defendant in Philadelphia on September 24, 1961, and they lived there together until their separation in mid 1963; defendant subsequently instituted an action for support against plaintiff in the County Court of Philadelphia which plaintiff unsuccessfully opposed, Commonwealth of Korn v. Korn, 204 Pa. Super. 153, 203 A.2d 341 (1964); in the summer of 1963 plaintiff rented an apartment in Camden County, New Jersey and in 1965 he instituted a divorce action against defendant in the Superior Court of Camden County which he discontinued, after a hearing but prior to a decision, in November, 1966, subsequent to his arrival in St. Thomas on October 2, 1966; plaintiff continued to practice his profession in Philadelphia during the period of his residence in New Jersey; he instituted the instant action on December 14, 1966, some nine weeks after his arrival in St. Thomas.

In seeking to establish the fact that he was "domiciled" in the Virgin Islands when he commenced his divorce action, plaintiff testified on direct examination as follows: he had closed his medical practice and "cut" all his business connections in Philadelphia; he had come to the Virgin Islands with the intention to make the Islands his "permanent residence and domicile" and "with the idea of making a new life, starting a practice in the Virgin Islands"; he had "made application to be admitted to practice", in the Virgin Islands, and had discussed the "matter" with Dr. Roy A. Anduze, Commissioner of Health of the Virgin Islands, who had advised him to contact Dr. Benjamin Nath, Secretary of the Board of Medical Examiners; he did so and "had to fill out certain forms" in order to take a required examination for admission to practice; he had not yet taken the examination but it was his intention to do so and he had spent his time since arriving in the Islands studying "and making outlines" in preparation for the examination; on his arrival in the Virgin Islands he stayed for about a month at the Pineapple Beach Club in St. Thomas; he thereafter rented a house in St. Thomas for about two months; he then returned to the Pineapple Beach Club for a few weeks, after which he moved to the Yacht Haven Hotel in the beginning of February, 1967 "where I have been staying ever since".

In "corroboration" of his "domicile" in the Virgin Islands, plaintiff introduced in evidence a "Notice of Payment Due" from the Blue Cross of Greater Philadelphia for health insurance premiums for the period March 1, 1967 to June 1, 1967, listing his address as the Pineapple Beach Club, and a copy of his federal income tax return for 1966 in which he had listed his address as the Yacht Haven Hotel.

Plaintiff, on cross-examination, admitted that he had not at the time of trial -- some nine months after his arrival at St. Thomas -- filed an application to take the required examination to practice his profession in the Virgin Islands, although he had testified to the contrary on direct examination. With reference to his testimony on direct examination that he had "studied" in preparation for the licensing examination and made 50 to 100 "outlines" of materials, he was unable to produce such "outlines" and he admitted on cross-examination that he had no medical books in the Islands and had "studied" only from "between five and twenty" medical journals.

Further, in contradiction of his testimony on direct examination that he had resided at the Yacht Haven Hotel continuously since he had registered there in early February, 1967, plaintiff admitted on cross-examination that he had not done so and had in fact made an unspecified number of trips to Philadelphia and New York between early February and the time of his trial on June 7 and 8 and July 14, 1967; plaintiff said that he had made three or four trips to New York and five or six trips to Philadelphia between the time of his arrival in St. Thomas on October 2, 1966 and the time of his trial. The trips, plaintiff said, were made for social and family visits, and they were financed with borrowed funds, since he had no assets and had not had any income subsequent to his arrival in the Islands.

In her defense testimony, defendant introduced records of the Yacht Haven Hotel which disclosed that plaintiff had registered there on February 6, 1967 listing his address at the time as "Philadelphia". The Yacht Haven Hotel records further disclosed that plaintiff had checked out on April 16th, checked in again on May 2d and checked out on May 14th; checked in again on May 30th and checked out on June 9th; checked in again on June 21st and checked out on June 24th.

It may be noted that defendant also introduced into evidence a letter from Dr. Anduze dated April 4, 1967 which was in reply to plaintiff's letter of March 8, 1967 regarding licensure in the Virgin Islands, and a letter which plaintiff wrote to Dr. Nath on April 7, 1967 requesting "* * * any pertinent ...


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