7ASR3d158

Series: 7ASR3d | Year: () | 7ASR3d158
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LEOTA VAEA

AINU`U, Petitioner,

 

v.

 

TASIAEAFE AINU`U, Respondent.

 

High Court

of American Samoa

Trial

Division

 

DR

No. 15-03

 

August 27, 2003

 

 

[1] In deciding a motion to dismiss for lack of subject

matter jurisdiction, the burden of proof is on the party claiming

jurisdiction.  Affidavits and other

supporting material may be used to challenge or prove subject matter

jurisdiction. 

[2] Proof of either residency or domicile will satisfy the one-year

residency requirement under A.S.C.A. § 42.0206.

 

[3] A party who married in American

Samoa, lived in American Samoa for a number of years, was transferred away from

American Samoa by his employer while maintaining an intent to return,

maintained voter registration in American Samoa, and returned to American

Samoa, is and always has been domiciled in American Samoa. 

 

[4] To change domicile, actual

residence and the intent to change legal residence must occur.  One must remove to the new residence without

the intention of returning to the old as such.

 

[5] A temporary

absence from one’s domiciliary state because of work or employment at another

place does not of itself effect a change of domicile.

 

Before RICHMOND, Associate Justice, ATIULAGI, Associate

Judge, and MAMEA, Associate Judge.

 

Counsel: For Petitioner, Katopau T.

Ainu`u

            For

Respondent, Tauivi. Tuinei

 

ORDER

DENYING MOTION TO DISMISS

 

Petitioner Leota Vaea Ainu`u (“Leota”) filed a petition for dissolution of

marriage.  Respondent Tasiaeafe Ainu`u

(“Tasiaeafe”) moved, pursuant to T.C.R.C.P. 12(b)(1), to dismiss the action on

the ground that this court lacks subject matter jurisdiction over the petition.  In particular, Tasiaeafe contends that Leota

fails to meet the one-year residency requirement under A.S.C.A. §

42.0206(a)(l).  The Court, having heard

and considered counsels’ arguments, will deny the motion.

 

Standard of Review

 

[1] In deciding a motion to dismiss for lack of subject matter jurisdiction,

the burden of proof is on the party claiming jurisdiction.  See

5A Charles Alan Wright and Arthur R.

Miller, Federal Practice and Procedure

§ 1350 (3d ed. 1998).  Both the

movant and the petitioner may use affidavits and other supporting material to

challenge or prove subject matter jurisdiction. 

Id.[1]

Discussion

 

At issue is whether Leota has met the one-year residency requirement

under A.S.C.A. § 42.0206.  A.S.C.A. §

42.0206(a)(1) provides that “the petition shall be dismissed if upon the

evidence presented the court finds . . . that it has not been established that

either the petitioner or respondent has been a bona fide and continuous

resident of American Samoa for at least one-year next preceding the

commencement of the action or proceeding.”

 

[2] “[T]he term ‘residence,’ as used in a statute governing subject-matter

jurisdiction over a marriage dissolution proceeding is equivalent to domicile, unless

a contrary intent is shown.”  24 Am. Jur. 2d Divorce and Separation § 202 (1998).  Thus, proof of either residency or domicile

will satisfy the one-year residency requirement under A.S.C.A. § 42.0206.

 

[3] Leota and Tasiaeafe were married on

December 22, 1984 in American Samoa. 

Leota continuously lived in American Samoa until 1998.  In 1998, he was transferred by his employer,

the United States Department of the Interior, National Park Services, to

Nevada.  According to Leota, he always

intended to return to his home in American Samoa and never intended to change

his domicile to Nevada.  Acting in

accordance with this intention, Leota maintained his voter registration in

American Samoa and returned to vote in local elections in 1998 and 2000.  In October 2002, Leota returned to American

Samoa and is currently employed by the American Samoa Government.

 

[4-5] Under these facts, Leota’s domicile is and always has been

American Samoa.  Although Leota moved to

Nevada for four years, he claims he never intended to make Nevada his new

domicile.  “To change domicile, actual

residence and the intent to change legal residence must occur.  One must remove to the new residence without

the intention of returning to the old as such.”  In re The Marriage of George W. Bates, 474 N.E.2d 140, 143 (Ind. Ct. App. 1985).  In addition, “[a] temporary absence from

one’s domiciliary state because of work or employment at another place does not

of itself effect a change of domicile.” 

24 Am. Jur. 2d Divorce and Separation § 213

(1998).  Since Leota viewed his move to

Nevada as a temporary job transfer and always intended to return to American

Samoa, his domicile remained in American Samoa. 

Accordingly, we conclude that petitioner has been a “bona fide and continuous resident of

American Samoa” as required under the statute. 

As such, this Court has subject matter jurisdiction over the dissolution

petition.

 

Order

 

For the reasons stated above, the

motion to dismiss is denied.

 

It is so ordered.

 

**********



[1] Petitioner seeks to convert this motion into one for

summary judgment because both parties have introduced materials outside of the

pleadings.  However, extra-pleading

material is appropriate in the Rule 12(b)(1) context and, therefore this motion

is properly considered as a motion to dismiss. 

See, e.g., Biotics Research Corp. v. Heckler, 710 F.2d 1375,

1379 (9th Cir. 1983).