Beaucamp v. Beaucamp, s. 85-2480

• Decision Date: 08 May 1987
• Docket Number: Nos. 85-2480,85-2481 and 86-80,s. 85-2480
• Citation: 508 So.2d 419,12 Fla. L. Weekly 1207
• Court: Florida District Court of Appeals
• Parties: 12 Fla. L. Weekly 1207 Georg Arthur Josef Maria BEAUCAMP, Appellant, v. Ellen Adam BEAUCAMP, Appellee.

Page 419

508 So.2d 419

12 Fla. L. Weekly 1207

Georg Arthur Josef Maria BEAUCAMP, Appellant, v. Ellen Adam BEAUCAMP, Appellee.

Nos. 85-2480, 85-2481 and 86-80.

District Court of Appeal of Florida Second District.

May 8, 1987.

Rehearing Denied June 18, 1987.

Patrice A. Pucci and Michael L. Hastings of Battaglia, Ross, Hastings, Dicus and Andrews, St. Petersburg, for appellant.

Ellen Adam Beaucamp, pro se.

DANAHY, Chief Judge.

The husband in this dissolution of marriage action appeals from a final judgment of divorce and two postjudgment orders on the grounds that the trial court lacked subject matter jurisdiction. We agree and reverse because the wife's evidence was insufficient to establish that she was a resident of Florida for the required six-month period preceding the filing of her petition for dissolution. § 61.021, Fla.Stat. (1983).

When the parties met and married in Florida in 1981, the wife, a citizen of the Federal Republic of Germany, was a resident alien in Florida and had been living here since 1973. Before the marriage she owned and paid taxes on residential rental property here. She retained the property when she moved to Germany immediately after the parties married. She still owns this property which retains its commercial, nonhomestead character. She possesses a German passport, a Florida driver's license, and a Social Security card which she has had since before the marriage.

The husband, also a German citizen, was at all relevant times a resident of that country. During the marriage which lasted a little over two years, the parties lived together in Germany, taking vacations in Florida once or twice a year for several weeks at a time. The wife testified that she never lost her resident alien status for purposes of the immigration laws because she was never out of this country for more than a year at one time. Whatever the truth of that representation, it does not resolve the question of her residency status for purposes of invoking the jurisdiction of a Florida court in a dissolution of marriage action. On the record before us, we find that while she was formerly a Florida resident, she lost that status and failed to make the necessary clear and positive showing that she had regained it when she filed this suit and for the critical preceding six-month period.

The petition for dissolution of marriage was filed on November 7, 1983. Therefore, the statutory period began to run on May 7, 1983. According to the wife and her corroborating witness, during 1983 the wife was present in Florida for several weeks during April and May, returned to Germany and came back to Florida in mid-October, where she has since remained. The wife herself testified that the purpose of the trips in the spring and in October was a vacation. While the parties were in Florida at some time during October 1983, the wife told the husband that she would not return to Germany with him. This was the first time that she objectively manifested any intention to no longer live with the husband in Germany. After the wife filed her petition for dissolution of marriage in Florida, the husband filed suit for divorce in Germany where the parties lived while they were married and where they both have always been citizens. The wife did not object to the jurisdiction of the German court; rather, she personally appeared and contested the divorce action there. She thereby subjected herself to personal jurisdiction in Germany and was bound by the ruling of that court. An order of dissolution of marriage was entered by the German court prior to the judgment in the case before us. ¹

We turn now to the law regarding subject matter jurisdiction for a dissolution of marriage action and its basis on the statutory residency requirement. Florida courts recognize that residency for that purpose means an actual presence in Florida, coupled with an intention at the time to make Florida one's residence. Campbell v. Campbell, 57 So.2d 34 (Fla.1952); Gillman v. Gillman, 413 So.2d 412 (Fla. 4th DCA 1982); Curran v. Curran, 362 So.2d 1042 (Fla. 4th DCA 1978). Residency for purposes of domicile is deemed to mean both residence and domicile. Gillman; see also McDougald v. Jenson, 596 F.Supp. 680 (N.D.Fla.1984). The general rule is that a wife's domicile follows that of her husband. McIntyre v. McIntyre, 53 So.2d 824 (Fla.1951). The wife's residence and domicile does not necessarily follow that of her husband when facts pertinent to her particular case determine otherwise. Simpson v. Simpson, 339 So.2d 250 (Fla. 2d DCA 1976). When a petitioner divides the year between Florida and another place, residence is found to be in "the chief seat of his household affairs or home interests." Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694 (1929).

The meaning of domicile and residence in the context of dissolution of marriage is often unclear. Campbell v. Campbell speaks of the issue in the following language: "It is usually held that a statutory requirement of residence for a specified period means actual, and not constructive, residence, thus in effect imposing a requirement additional to that of mere legal domicile." 57 So.2d at 35 (citing 17 Am.Jur. Divorce and Separation § 251 (1957)). Campbell was later explained by the Florida Supreme Court in Bloomfield v....