Pepper v. Pepper

• Citation: 66 So.2d 280
• Parties: PEPPER v. PEPPER.
• Decision Date: 10 July 1953
• Court: United States State Supreme Court of Florida

Page 280

66 So.2d 280

PEPPER v. PEPPER.

Supreme Court of Florida, Special Division A.

July 10, 1953.

James Halley Ruby, Miami Beach, for appellant.

Robertson & McLeod, Coral Gables, for appellee.

MATHEWS, Justice.

This is an appeal from a final order of dismissal of a suit for divorce.

The facts in this case are simple. The bill of complaint was filed on the 9th day of March, 1953, wherein the appellant alleged that she was a bona fide resident of the County of Palm Beach and State of Florida 'and has so resided in said county and state for a period of more than 90 days next preceding and prior to the filing of this bill of complaint.'

The parties were married on the 1st day of April, 1950 in the City of New York. A child was born on March 30, 1951. They lived in New York until after the baby was born but their married life had not been happy. The appellant left the appellee in January, 1951, and had not lived nor cohabited with him since said date. Answer was filed and thereafter, petition for temporary alimony, suit money and counsel fees was filed. The suit started out, apparently, to be a contested one, but later during the pendency of the suit, the parties agreed by stipulation as to the custody of the child and this eliminated the principal contest. On April 27, 1953, the Chancellor made an order, which, among other things, contained the following:

'The cause is at issue and counsel for both parties have consented to the trial of the cause on Thursday, April 30, 1953, at two o'clock in the afternoon. At such time the undersigned judge will sit in his chambers for the purpose of hearing such testimony and receiving such proofs as shall be submitted by the parties on all issues involved in the cause. The trial will be continuous, except for necessary recesses, and the parties will be expected to have available at the scheduled time of trial all testimony and proofs on which they shall rely.'

Pursuant to the above-mentioned order, a hearing was had before the Chancellor, beginning at 2:00 P.M. on April 30, 1953. At the beginning of the hearing the attorney for the appellant stated: 'We will prove to the Court's satisfaction that the plaintiff is a bona fide resident of the State of Florida.' The Court said: 'All right, go ahead.' Thereupon, the appellant was duly sworn and testified that she was then living in Palm Beach at 250 Everglades Avenue, and had resided there since November, 1952, and that her residence had been continuous. She absented herself from the State for a period of about one week on the occasion of her father's funeral who had died in March of 1953. The funeral was in New York. When appellant went to the funeral she left most of her personal belongings at Palm Beach and only took things necessary for the trip. She left the child in Palm Beach during that time with her (appellant's) mother. She further testified that when she came to Florida in 1952, she came to remain indefinitely and that was still her intention. She joined some social organization in Palm Beach and she had a Florida driver's license, which was obtained in November, 1952. She maintained a bank account in Palm Beach. She owned no property but was living with her baby and her mother. Her mother had lived with her since she came to Florida in November of the previous year. Her mother was still living in Palm Beach and intended to stay in Florida indefinitely. Her mother had been attempting to purchase a home and had been looking for one. Her child had been in Palm Beach ever since the came to Florida in November and was still there. As to her financial condition, appellant testified that her mother was supporting her at the time and would continue to do so. Her mother was not employed but her circumstances were such that she did not need to work for a living. Her mother's furniture was still in New York in an apartment which she (the mother) had rented on a month to month basis in order not to move the furniture to Florida until she could buy a home and move it into the home instead of putting it in storage. The residence in which she lived in Palm Beach was a small garden apartment. Before coming to Florida, appellant discussed her intentions with a lawyer in New York. She had known this lawyer for many years. She did not ask him about residence requirements for divorce in Florida because she knew she was moving to Florida anyway. At this point of her testimony the following took place:

'The Court: I will recess the trial for three months.

'Mr. Ruby: May I ask a few questions, your Honor?

'The Court: Yes.'

Further testifying, the appellant stated that the attorney in New York suggested to her that it would be easier to get a divorce in Reno, but that it made no difference to her because she was going to be in Florida and in fact would be living in Florida. At this point the following took place:

'The Court: Did you say your mother intends to buy a place to live here?

'The Witness: Yes; she intends to buy.

'The Court: You don't anticipate an early remarriage, do you?

'The Witness: No.

'The Court: Wait another three months. Then I will be more convinced you really intend to live here. I don't want to resolve any doubts I have against you.

'Mr. Ruby: We have no objection to that. The only thing is that I have brought some witnesses down from Palm Beach relative to the corroboration of the grounds.

'The Court: I will hear the testimony.'

Nicolleen Silver was called as a witness who testified that she lived in the Hampshire Apartments in Palm Beach, Florida, and had lived there for 7 years. She first met Mrs. Pepper on November 12, 1952, at a plane when she arrived in Florida, and immediately took her, her baby and her mother to her apartment where they lived for approximately two weeks. While at her apartment, Mrs. Pepper was looking for a house to buy or rent 'whatever she could get at the time. We also helped them look for a house.' The witness further testified that they found a house which they rented for about a year. She saw the Peppers very often. They had all their personal belongings with them. They signed a lease for the apartment which will expire November 15, 1953. Mrs. Ullman, the mother of Mrs. Pepper, was still looking for a house to purchase. She knew of her own knowledge that they had been looking for a house to buy and they leased one for a year because at that time they could not find anything suitable to buy. She definitely knew they intended to live in Florida and make Florida their permanent residence.

Evelyn Budlow testified on behalf of the appellant that she, Mrs. Budlow, resided at 81st Street, Miami Beach, Florida, and knew the appellant and had known her for about 6 years. She knew her in New York. The first time she met her in Florida was in November, 1952. Since Mrs. Pepper had been in Florida, she had seen her on trips to Miami about once a month, and had also talked to her on the phone every week to two. She knew where she was staying at 211 Ridgeview Drive in Palm Beach at the Hampshire Apartments. Mrs. Pepper had told her that she intended to make Florida hir home.

This case involves fundamental principles of government far more important than the more outcome of a divorce suit.

The evidence for divorce was undisputed and was sufficient.

It appears that on April 30, 1953, the Court made an order which was filed and recorded in the Clerk's office on May 1, 1953, reading as follows:

'The trial of this cause, which was begun today, is recessed for a period of not less than three months for the reason that the court, on an inquiry into the bona fides of the plaintiff's residence, was not convinced that the plaintiff is a resident of this state. If during the three months' period she shall continue to reside in the state, the court will, on application and notice, set a date for the resumption of the trial.' (Emphasis supplied.)

On May 13, 1953, the Court entered an order of dismissal as follows:

'Since recessing the trial of this cause I have...