Chaves v. Chaves

• Citation: 84 So. 672,79 Fla. 602
• Parties: CHAVES v. CHAVES.
• Decision Date: 24 April 1920
• Court: United States State Supreme Court of Florida

84 So. 672

79 Fla. 602

CHAVES v. CHAVES.

Florida Supreme Court

April 24, 1920

Appeal from Circuit Court, Hillsborough County; F. M. Robles, Judge.

Bill by Nellie Springer Chaves against Joseph P. Chaves, for alimony and suit money and permanent decree for support. Demurrer to bill overruled, and cause referred to a master to take testimony, and temporary alimony awarded thereon, and a decree entered awarding permanent alimony and counsel fees and defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

In passing upon a demurrer to a bill in equity, every presumption is against the bill.

Where there are contradictory or inconsistent allegations in a bill, its equity will be tested by the weaker rather than the stronger allegations.

The only foundation of an order for alimony, suit money, and counsel fees pendente lite is the fact of marriage between the parties, and that relation should be made to appear at least prima facie by proof or admission before a reference to a master is made.

When the marriage status is prima facie established by admission or proof, the court has the power to require the husband to provide suit money for the wife to enable her to cope with him in the litigation.

Where the bill of complaint is sworn to, and alleges that the defendant denies the marital relation, the issue as to the denial of the marriage status by the defendant is as effectively raised as if denial had been stated in a sworn answer.

To constitute a common-law marriage, at least two essentials must appear, mutual consent and capacity of the parties, and the agreement itself must be to become husband and wife immediately from the time when the mutual consent is given which is known as words of present assent per verba de praesenti.

Neither cohabitation and repute nor circumstances, whose sole function is to show mutual consent of the parties establishes a common-law marriage of itself, for to constitute the marriage relation de praesenti the parties must contemplate that the relation is being created at the present time when the contract is being made.

If the parties agree presently to take each other for husband and wife and from time to time live together professedly in that relation, there is a marriage binding upon the parties.

That form of the common-law marriage known as consent per verba de futuro cum copula, which proceeded upon the theory that while the promise de futuro of itself had no effect, yet if the parties who had exchanged the promise had copula its effect was to interpose a presumption of present consent which converted the engagement into an irregular marriage, is not recognized in this state.

Where one of the parties is actually, legally, and bona fide domiciled in this state as a citizen thereof, the chancery courts have jurisdiction to enforce the duty of maintenance and support due from the husband to the wife by awarding alimony, particularly where personal service is made upon the husband within this jurisdiction. Two years' residence is not required when the proceeding is under section 1934, Gen. St. 1906.

Legal residence consists of facts and intention; both must concur; and, under section 1934, Gen. St. 1906, our courts have jurisdiction to enforce the duty of maintenance and support due from a husband to the wife, where one of the parties is actually, legally, and bona fide domiciled in this state as a citizen thereof.

Legal residence may be acquired by one who, coming from another state, actually lives in this state with the intention of permanently remaining here.

To give jurisdiction to the court to entertain a cause brought under section 1934, Gen. St. 1906, it is only necessary for her to show that either she or her husband has, in a proper and legitimate manner, become at the time of the application a bona fide resident and citizen of this state.

COUNSEL Hilton S. Hampton, of Tampa, for appellant.

J. T. Watson, of Tampa, for appellee.

OPINION

ANDREWS Circuit Judge.

Defendant in error, hereinafter called the plaintiff, filed her bill of complaint in the circuit court of Hillsborough county on October 1, 1918, seeking alimony and suit money and a permanent decree for support under the provisions of section 1934 of the General Statutes of Florida of 1906.

The bill of complaint, omitting formal and unnecessary parts, alleges:

'1. Your oratrix represents that she is at this time a resident of the city of Tampa and state of Florida, and that she has been regularly and continuously residing in said city and state since the 29th day of April, 1918, and that the defendant J. P. Chaves is now in the city of Tampa and state of Florida, or is somewhere in the vicinity of such city.

'That on the 29th day of April, 1918, the said defendant and your oratrix became married and legally constituted as man and wife, although no marriage ceremony creating or establishing such relationship was ever performed; that the marriage constituted between the said parties was accomplished in the following manner:

'That prior to said date your oratrix had known the said defendant in the city of Mobile, Ala., and during such acquaintance in said last-mentioned place, the said defendant had requested your oratrix to marry him; that your oratrix consented to do so; that she subsequently came to Tampa at the said defendant's request for the purpose of marrying him and making a home in said city of Tampa for both of the said parties; that she arrived in the city of Tampa on the 29th day of April, 1918; that the said defendant was in said city at such time awaiting her, and did at such time register at the Olive Hotel in the said city and state, both your oratrix and himself, as Mr. and Mrs. Chaves; that on the night of April 29, 1918, and in fact during the entire time that your oratrix and the said defendant were living at said Olive Hotel, being registered there as husband and wife, they actually lived together as husband and wife, and cohabited as such; that the said defendant held your oratrix out as his wife at that time and at all subsequent times up until a date and time to be hereinafter mentioned; that the said defendant stated to your oratrix on the first night after her arrival in the city of Tampa on April 29th, as aforesaid, that they were in fact husband and wife, thereby agreeing to become husband and wife and putting such agreement into effect by subsequently cohabiting with your oratrix as his wife, that thereafter the said defendant and your oratrix lived together as man and wife during the time they remained in the said hotel, and that the said defendant, together with your oratrix, rented an apartment on Verne street in the city of Tampa, for your oratrix as his wife, and purchased the necessary furnishings for the upkeep and maintanance of a home for himself and your oratrix, and made such purchases for your oratrix as his wife, and actually lived in said home all of the time that the said defendant was in the city of Tampa after the renting thereof until at a later date to be hereinafter referred to.

'That during the time that your oratrix and the said defendant were living in said home, your oratrix was held out by the said defendant as his wife, and introduced to his friends as such, and that she so considered herself; that she introduced the defendant as her husband to friends and acquaintances, and so considered him as such; that your oratrix in fact agreed to be the wife of the said defendant on the first night after her arrival in the city of Tampa, when the two were registered and living together at the said Olive Hotel; that the said defendant has ever since held your oratrix out as his wife up until a date to be hereinafter referred to, and has treated her as such; that the said defendant actually agreed on April 29th, the date when your oratrix arrived in the city of Tampa, that your oratrix was in fact his wife.

'Wherefore your oratrix respectfully shows to your honor and claims that she and the defendant became man and wife as of April 29th, when they each agreed that such relationship existed between them, and when they began living together and cohabited with one another as such.

'(3) Your oratrix shows to your honor that on or about the 21st day of September, A. D. 1918, the said defendant was arrested by the federal authorities in the city of Tampa under the charge of violating the federal law commonly known as the White Slave Act; that on said date your oratrix was also taken into custody, and required to go to the office of the United States commissioner in the federal building in the city of Tampa, Fla., and sign a paper, your oratrix respectfully representing that she does not know what the contents of this paper which she signed were, although she was told that her husband had been arrested for violating the White Slave Act; that she signed such paper upon the direction and command of the court officers, or persons who she supposed were court officers, and who directed her and instructed her to sign the same; that it was not her intention at such time, or at any other time, to charge her said husband with violating the white slave law, although this complainant admits that when she signed such paper she did not know whether the law would recognize the defendant as her husband, when they had gone through no marriage ceremony your oratrix respectfully representing that she has ascertained since the signing of said paper that the agreement actually entered into between herself and said defendant to be man and wife, perfected and put into execution by cohabitation between them, under the laws of this state constituted a legal marriage, which, if your oratrix had known at the time that she was called upon to sign the paper or...