¶1concurring. The majority opinion is evidently based upon the assumption that Walther was telling the truth when he testified that he intends to make his home permanently in Arkansas. This view of the proof would support a finding that Walther is domiciled in this state, and consequently the majority do not reach the question that I regard as controlling.
¶2This is the third state in which Walther has sought a divorce. In 1953 he filed suit in Florida and asserted that he was a bona fide resident of that state. That suit was unsuccessful. In 1957 he filed suit in Texas and asserted that he was a bona fide resident of that state. That suit was unsuccessful. In 1959 he filed suit in Arkansas and asserted that he was a bona fide resident of this state. He testified that he intends to make his home here permanently and that he moved off the air base not for the purpose of obtaining a divorce but for that of establishing his residence in Arkansas. I am unable to believe that Walther is sincere in making these statements. In my opinion Walther’s sole purpose in moving off the reservation, paying his poll tax, buying an Arkansas motor vehicle license, and so forth, was to lay a foundation for this suit. I do not think that he really intends to make his home in this state with such a degree of permanence as to establish a domicile in Arkansas.
¶3Nevertheless I cannot say that the proof of residence in this case is insufficient. By Act 36 of 1957 the legislature substituted residence, or mere physical presence, for domicile as a jurisdictional basis for divorce. Ark. Stats. 1947, § 34-1208.1. We upheld the statute in Wheat v. Wheat, 229 Ark. 842, 318 S. W. 2d 793. As our law now stands a nonresident civilian can come to Arkansas and obtain a divorce after a sojourn of three months, even though he testifies candidly that he came here only to obtain a divorce and that he means to leave as soon as the decree is entered. Such a decree would not be entitled to full faith and credit elsewhere, but under the statute the chancellor would have no basis for refusing to hear the case on its merits.
¶4Walther’s only difficulty is that he came to this state involuntarily, under military orders, and consequently our constitution prevents him from establishing an Arkansas residence by physical presence only. Ark. Const., Art. 3, § 7; Kennedy v. Kennedy, 205 Ark. 650, 169 S. W. 2d 876. It was therefore incumbent upon him to go a step farther and demonstrate by overt acts that he has acquired a residence here.
¶5It is not essential, however, for a soldier in Walther’s position to prove domicile as a jurisdictional requirement for his suit. The controlling constitutional provision makes no mention of domicile; it merely declares that a soldier cannot acquire a residence by reason of being stationed on duty in this state. A soldier’s jurisdictional proof must therefore be directed toward establishing a middle ground somewhere between domicile on the one hand and physical presence under military orders on the other.
¶6By moving off the air base and thereby taking a minor part in the civilian life of the community Walther did what he could to demonstrate objectively that his connection with this state went beyond his simply being stationed here in obedience to compulsory orders. Under the reasoning in the Wheat decision the real question is whether Walther’s activities have provided the state of Arkansas with such cause for an interest in his marital status as to justify our courts in entertaining his suit for divorce. Unless we are to require proof of domicile in this case— a requirement that would be peculiar to soldiers and sailors and that would find no direct support in the language of the constitution and statutes — I see no tenable ground for holding that Walther’s actions fall short of establishing his residence.
¶7concurring and dissenting. I join in Mr. Justice George Rose Smith’s concurring opinion in this case as to the residence of the appellee.
¶8I dissent, however, from that part of the majority opinion regarding the alimony. I think the chancellor’s decision in respect to allowing alimony for only one year was correct. Therefore, I would affirm the case in its entirety.
¶9on rehearing. Appellant’s counsel is allowed an additional fee of $100, to be taxed as costs. Rehearing denied.