Brown v. Brown

• Decision Date: 30 September 1960
• Docket Number: No. 1744,1744
• Citation: 123 So.2d 382
• Parties: Madeline BROWN, Appellant, v. W. Norman BROWN, Appellee.
• Court: Florida District Court of Appeals

Page 382

123 So.2d 382

Madeline BROWN, Appellant, v. W. Norman BROWN, Appellee.

No. 1744.

District Court of Appeal of Florida, Second District.

Sept. 30, 1960.

Jose A. Gonzalez, Jr., of Watson, Hubert & Sousley, Ford Lauderdale, for appellant.

No appearance for appellee.

SHANNON, Judge.

This is an appeal by the appellant, the plaintiff below, from a final decree in a divorce action, where the complaint was dismissed without prejudice on the ground that the wife did not meet the residence requirements of Fla.Stat. § 65.02, F.S.A.

The husband and wife were formerly residents of Maryland. In February, 1959 the husband came to Florida with the understanding with his wife that she would remain behind intending to come to Florida and join him as soon as their son had completed his school year. She actually came to Florida and joined her husband in June. After she came to Florida the parties came to a disagreement which resulted in the wife suing for divorce in October. When the cause came before the chancellor for final decree, ex parte, it was held by the chancellor that the wife having been in the State of Florida for only four months, did not meet the residence requirements of the Florida statutes.

Florida Statute, § 65.02, F.S.A. reads as follows:

'Residence required.--In order to obtain a divorce the complainant must have resided six months in the state before the filing of the bill of complaint, but shall not affect any suit for divorce filed prior to October 1, 1957.'

We are unable to find that this exact question has been before the Florida Supreme Court, although there are many cases where the principles have been announced.

Technically, there is a distinction between the jurisdiction requirements, which allow a court of equity to decide a divorce case, and the residence requirement of six months, which the Legislature has imposed. 'Residence' in a divorce case undoubtedly implies 'domicile.' In a general sense, these terms may be interchangeable. However, in the case at bar the technical difference becomes important, as pointed out in 17 Am.Jur., Divorce, § 282:

' § 282. Length of Residence; Statutory 'Waiting Period.'--In so far as the power to confer jurisdiction of the res or marriage status for the purpose of granting a divorce is concerned, the important factor is the existence of a domicil rather than the length of the residence. The state may authorize the granting of a divorce if the plaintiff has established a domicil within the state even for a day. On the other hand, the states have the power to superimpose upon the fact of domicil or residence within the state a requirement that the domicil or residence continue for a certain period of time as a prerequisite to a divorce; and the legislatures have exercised this power by prescribing a 'waiting period' of from 6 weeks to 5 years. The statutory period of residence must ordinarily elapse prior to the commencement of the action, in order for the plaintiff to obtain a decree of divorce, * * *'

The principle of law stated above indicates that the six months residence requirement imposed by Florida Statute, § 65.02, F.S.A. adds an additional phase to 'domicile.'

Perhaps the clearest way to point out this technical distinction is by the proof required to establish each item. The domicile involves the intent of an individual. The residence is a matter of objective fact. Many states have worded their statutes so that a divorce plaintiff must have 'continuously resided' for a specific period of time before being allowed to bring suit. This is true in Arizona, Connecticut, Nevada, North Carolina, Ohio and Virginia, and possibly other jurisdictions. Typical of the holdings where a state has a 'continuously resided' type of statute is Carnahan v. Carnahan, 79 Ariz. 371, 290 P.2d 729, 730, 55 A.L.R.2d 1258, where the court said in part:

'This court with unanimity has consistently held:

"Under the statute, it is absolutely essential before a person may lawfully file a complaint for a divorce that he shall have been an actual bona fide resident of the state for one year and of the county six months. * * *"

According to the Supreme Court of Mississippi, this is also valid in Florida. In the full faith and credit case of Anglin v Anglin, 1951, 211 Miss. 405, 51 So.2d 781, the husband and wife lived in Mississippi. When they separated, the husband went to Florida, and, having met the jurisdictional requirements, he subsequently obtained a divorce in this state. The wife sued for divorce in Mississippi and the husband raised his Florida decree as a bar to that action. After investigating the jurisdiction of the Florida court, the Supreme Court of Mississippi gave full faith and credit to our decree, saying at page 782 of 51 So.2d:

'* * * Bona fide residence in Florida by a complainant in a divorce action for a period of ninety days next preceding the filing of suit was, under the law of that state, a statutory prerequisite to jurisdiction, and appellee's bill alleged that he had been a bona fide resident of Orange County, Florida, for more than ninety days next preceding the filing of his bill. * * *'

In the present case the question we have is--Does the maxim that a wife's domicile is that of her husband's establish constructive residence under Florida Statute, § 65.02, F.S.A.? The following factors appear to be important:

1. The maxim applies to domicile, and as noted above, domicile and residence are technically distinct.

2. There is no question that the maxim applies to shift the domicile and that the wife became a domiciliary of Florida when her husband moved here. However, this raises the question as to the resident requirements of our statute.

3. Our Supreme Court has expressly stated...