COURT OF APPEALS
DECISION
DATED AND FILED
December 10, 2008
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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In re the estate of George M. Potemkowski:
Bukurije “bulla” Ismaili, Personal Representative,
Appellant,
v.
Department of Veterans Affairs Legal Department,
Respondent.
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APPEAL
from an order of the circuit court for Kenosha County: barbara
a. kluka, Judge. Affirmed.
Before Brown, C.J., Snyder and Neubauer, JJ.
¶1 PER CURIAM. Bukurije Ismaili, the personal
representative of the Estate of George Potemkowski, appeals from an order
dismissing her petition for formal administration of the estate. The circuit court determined that Potemkowski
had not established legal domicile in Wisconsin
despite having been placed by the Department of Veterans Affairs (Department)
in a Kenosha County group home for more than
thirty years prior to his death. Ismaili
argues that the circuit court’s findings are contrary to the evidence. We affirm the circuit court’s order.
¶2 Potemkowski, who had served in the United States Air Force
during the Korean War, suffered from mental and psychiatric problems that
rendered him disabled. His care was
managed by the Department. In 1968 a
conservator was appointed by an Illinois
court to manage Potemkowski’s money. The
LaSalle Bank served as conservator until Potemkowski’s death. In 1974 the Department placed Potemkowski in
a Kenosha County group home. Up until that placement, he had been a
resident of Chicago, Illinois.
Potemkowski remained in the Kenosha
County group home until January 2006
when he was taken to the North Chicago Department of Veterans Affairs Medical
Center in Lake County, Illinois for care and treatment. In March 2006, a guardian of the person was
appointed for Potemkowski by a Lake County, Illinois court. Potemkowski died July 10, 2006, at the
medical center.
¶3 Potemkowski’s will of November 15, 2005, bequeathed all his
property to Ismaili and named her the personal representative of his
estate. For ten years Ismaili owned and
operated the group home where Potemkowski lived. Ismaili petitioned the Kenosha County
court for administration of the estate and distribution of more than $120,000
to her. The LaSalle Bank questioned
whether the probate proceeding should be venued in Wisconsin
or Illinois. The Department asserted that Potemkowski was
domiciled in Illinois and objected to the
jurisdiction of the Wisconsin circuit
court. A hearing was held and testimony
taken from Ismaili, a long-term employee at the group home, the attorney who
drafted the will, Ismaili’s husband, Potemkowski’s social worker since 1994,
and a doctor who evaluated Ismaili’s ability to make informed decisions in
August 2005 and February 2006. The
circuit court found that Potemkowski did not make a choice to live in Wisconsin and that he
was placed there by the Department. It
found no evidence that Potemkowski ever made an informed or intentional
decision to live in Wisconsin. It concluded that Potemkowski was not
domiciled in Wisconsin
and it vacated its previous order for formal administration of the estate.
¶4 Probate jurisdiction in Wisconsin
exists if decedent was domiciled in Wisconsin. Wis.
Stat. § 856.01(1) (2005-06). “A domicile may be classified as a domicile
by birth, a domicile by choice, or a domicile by operation of law.” Daniels v. Draves, 53 Wis. 2d 611, 614, 193
N.W.2d 847 (1972). Here it is undisputed
that Potemkowski, by choice, was domiciled in Illinois
before being placed in the Kenosha
County group home. He had lived there before his military
service and returned there after service.
¶5 “Once a domicile has been established, it is presumed to
continue until a new domicile is created.”
Daniels, 53 Wis.
2d at 615. The burden of proof is on the
person claiming a change in domicile to prove it. Id. That Potemkowski resided in Wisconsin
for more than thirty years does not alone establish domicile in Wisconsin. See id. at 614-15
(“‘domicile’ includes residence but ‘residence’ does not necessarily include
domicile”). To create a new domicile
there must be an abandonment of the old domicile and the intention and
establishment of a new domicile. Lauterjung
v. Ford, 14 Wis.
2d 324, 327, 111 N.W.2d 77 (1961).
¶6 “The determination of a person’s domicile or of his choice of
domicile involves the adjudication of questions of fact.” Baker v. Department of Taxation, 246 Wis. 611, 617, 18 N.W.2d
331 (1945). A circuit court’s findings
of fact will not be set aside unless clearly erroneous. Wis.
Stat. § 805.17(2).
A circuit court’s findings of fact are clearly
erroneous when the finding is against the great weight and clear preponderance
of the evidence. Under the clearly
erroneous standard, “even though the evidence would permit a contrary finding,
findings of fact will be affirmed on appeal as long as the evidence would
permit a reasonable person to make the same finding.”
Royster-Clark, Inc. v. Olsen’s Mill,
Inc., 2006 WI 46, ¶12, 290 Wis.
2d 264, 714 N.W.2d 530 (citation and quoted source omitted). We accept the inference drawn by the circuit
court when more than one reasonable inference can be drawn from the
evidence. Bank of Sun Prairie v. Opstein,
86 Wis. 2d
669, 676, 273 N.W.2d 279 (1979).
¶7 The evidence established that from 1968 to 1974 Potemkowski
was in a North Chicago
treatment facility. He was under the
care and control of the Department. Thus
his move to the Kenosha
County group home was
a continuation of that placement by the Department. From the outset Potemkowski did not have the
intent to abandon his Illinois
domicile. He did not (because he could
not) change the location of his bank account.
He continued to return to Illinois
for medical treatment. The Illinois court continued
to review the conservator’s accountings.
He never challenged the Illinois’
court authority to act, even in the 2006 guardianship proceeding. Potemkowski did not have the option of
selecting Wisconsin
as his residence. That choice was made
for him. There was no intent to change
his domicile.
¶8 Ismaili points to testimony indicating that Potemkowski
thought of the group home as his home and that he had no intention of ever
leaving it. During his last hospital
stay, Potemkowski expressed a desire to return to Ismaili’s care. Those expressions are linked only to the
person providing him care, Ismaili. He
expressed a desire to remain with Ismaili.
His expressions do not relate a desire to make Wisconsin
his domicile or indicate an awareness that Ismaili’s home was located in Wisconsin. They alone do not constitute the great weight
and clear preponderance of the evidence so as require reversal of the circuit
court’s finding that Potemkowski did not chose to live in Wisconsin.
See
Bank
of Sun Prairie, 86 Wis. 2d at 676 (reversal of the circuit court’s
finding is not required if there is evidence to support a contrary finding;
rather, the evidence in support of a contrary finding must itself constitute
the great weight and clear preponderance of the evidence).
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.