Coons v. Coons

• Decision Date: 06 July 2000
• Docket Number: No. 1D99-2659.,1D99-2659.
• Citation: 765 So.2d 167
• Parties: Kenneth C. COONS, Jr., Appellant, v. Cathlyn Ann COONS, Appellee.
• Court: Florida District Court of Appeals

765 So.2d 167

Kenneth C. COONS, Jr., Appellant, v.Cathlyn Ann COONS, Appellee.

No. 1D99-2659.

District Court of Appeal of Florida, First District.

July 6, 2000.

Keith A. McIver of Chase, Quinnell, McIver, Jackson & Marks, P.A., Pensacola, for Appellant.

Thomas R. Santurri of Thomas R. Santurri, P.A., Pensacola, for Appellee.

REVISED OPINION

BROWNING, J.

The nearly 10-year marriage of Kenneth C. Coons, Jr.(Appellant), and Cathlyn Ann Coons(Appellee) was dissolved pursuant to a May 1999 final judgment of dissolution of marriage.The parties have a 7-year-old daughter born of the marriage.In this direct appeal, Appellant challenges the final judgment on four grounds: 1) the circuit court lacked subject-matter jurisdiction because Appellee had not physically resided in Florida for six months prior to filing her petition for dissolution; 2) the trial court erred as a matter of law by calculating Appellee's interest in Appellant's military pension without making findings to explain and justify Appellee's sharing in increased retirement benefits from Appellant's post-dissolution promotions; 3) the court abused its discretion by awarding Appellee permanent alimony without affording Appellant a previously promised opportunity to present additional evidence on the subject; and 4) the court abused its discretion by requiring Appellant to bear the entire cost of visitation transportation expenses after Appellee relocated with the parties' minor child to California.

We affirm the final judgment generally, including the rulings exercising subject-matter jurisdiction, dissolving the marriage, and making Appellant responsible for the visitation transportation expenses.We reverse the final judgment only with respect to Appellant's other challenged rulings and remand with directions to the trial court to recalculate Appellee's share in Appellant's retirement benefits in accordance with the Florida equitable distribution statute, sections 61.075 & 61.076, Florida Statutes (1997), and related case law, and to make findings of fact; and to grant Appellant an opportunity to present evidence in opposition to the request for permanent alimony.

Appellant's first issue challenges the circuit court's subject-matter jurisdiction to hear the dissolution of marriage proceedings and to rule upon the matters at issue.Florida law sets forth a durational residence requirement:

61.021 Residence requirements.___ To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.

§ 61.021, Fla. Stat.(1997)."Compliance with the section 61.021 residence requirement has long been held to be jurisdictional."Speigner v. Speigner,621 So.2d 758, 759(Fla. 1st DCA1993).Another statute addresses the permissible methods of corroborating Florida residence:

61.052 Dissolution of marriage.___

* * *

(2) Based on the evidence at the hearing, which evidence need not be corroborated except to establish that the residence requirements of s. 61.021 are met which may be corroborated by a valid Florida driver's license, a Florida voter's registration card, or the testimony or affidavit of a third party, the court shall dispose of the petition for dissolution of marriage when the petition is based on the allegation that the marriage is irretrievably broken....

§ 61.052(2), Fla. Stat.(1997);seeOrbe v. Orbe,651 So.2d 1295(Fla. 5th DCA1995).The Supreme Court of Florida has explained why it is important to establish durational residency:

Florida has a compelling state interest in requiring a provable durational residency so that Florida may avoid intrusion upon the rights and interest of a sister state that might otherwise be paramount while still insuring the integrity of its judicial decrees as against future collateral attack in distant courts.

Caizza v. Caizza,291 So.2d 569, 571(Fla.1974).As the complainant below, Appellee had the burden to prove that she met the durational residency requirement.SeeFazio v. Fazio,66 So.2d 297(Fla.1953);Held v. Held,151 Fla. 583, 10 So.2d 129(1942).Whether or not a complainant is a Florida resident is a question of both fact and law to be settled or determined from the facts of each case.SeeFowler v. Fowler,156 Fla. 316, 22 So.2d 817(1945).

Appellee filed her petition for dissolution on March 4, 1998, in Santa Rosa County.In the petition, Appellee alleged that she had been a resident of Florida for more than six months "except for absences required by the United States Military."In his answer, Appellant admitted Appellee's claim of Florida residency.However, his admission of Appellee's Florida residency could not substitute for proof of such residence.SeeWise v. Wise,310 So.2d 431(Fla. 1st DCA1975).At the dissolution hearing, Appellee produced her current, valid Florida driver's license as corroborating evidence of residency, without an objection.According to Florida Family Law Rule 12.140, defenses shall be governed by Florida Rule of Civil Procedure 1.140, subsection (h)(2) of which states that "[t]he defense of lack of jurisdiction of the subject matter may be raised at any time."SeeParker v. Parker,553 So.2d 309(Fla. 1st DCA1989).In fact, the issue of lack of subject-matter jurisdiction was not raised until after the entry of the final judgment when, in his motion and amended motion for rehearing, Appellant's new attorney alleged a lack of proof of either party's Florida residency.

We conclude that the record amply supports the lower court's conclusion that the Florida durational residency requirement was met.SeeFernandez v. Fernandez,632 So.2d 638(Fla. 2d DCA1994),approved,648 So.2d 712(Fla.1995).Appellant entered the armed forces in 1983.When the dissolution proceedings began, he was a major in the United States Air Force.During the marriage, Appellant's military responsibilities necessitated his family's moving with him among several Air Force bases within the United States and abroad.Appellant also participated in additional rotations in Europe and Japan, a 9-month tour in Operation Desert Storm, and numerous short-term military exercises away from his family while Appellee cared for the parties' child.Immediately after the parties' 1989 marriage in California, they moved to North Carolina and remained there until Appellant's transfer to Hurlburt Field, Florida, in 1991.Their daughter was born in Eglin Hospital in Florida.Appellant was transferred in 1994 to Panama, where the family remained until his June 1997 assignment to Maxwell Air Force Base in Alabama.In their financial affidavits, the parties listed among their assets a jointly owned home in Navarre, Santa Rosa County, which they rented out during their extended absence; and a credit card account and credit line through Eglin Federal Savings Bank.Appellant re-registered Appellee's 1991Chevy Blazer in Florida and forwarded the tags to her after the separation.Appellee testified that the parties separated in March 1998, when they were getting ready to relocate to Hurlburt Field, Florida; she filed the petition for dissolution that same month.Indeed, by the date of the dissolution hearing, Appellant was stationed again at Hurlburt Field, Florida.

Generally, "[t]he test of residency is physical presence in Florida and the concurrent intent to be a permanent resident."Cruickshank v. Cruickshank,420 So.2d 914, 915(Fla. 1st DCA1982).However, we have held that the special circumstances affecting military persons warrant an exception to this "physical presence" rule:

Florida courts have recognized an exception to the statutory residency demand as to members of the military, allowing them to seek divorce in Florida without proving their actual presence in the state during the six-month period prior to the filing of their petitions of dissolution.

Eckel v. Eckel,522 So.2d 1018, 1020(Fla. 1st DCA1988);seeCruickshank,420 So.2d at 914;Sheppard v. Sheppard,286 So.2d 37(Fla. 1st DCA1973).Although physical or actual presence in the state is excused under these circumstances, concurrent intent to be a permanent Florida resident remains an element of the residency test.SeeMcIntyre v. McIntyre,53 So.2d 824(Fla.1951);Sheppard,286 So.2d at 37(husband, who never resided outside Florida during his adulthood except during tours of duty in U.S. Army and who made frequent visits to Florida while in armed forces, met statutory residency requirements, where he always listed his permanent residence in Florida and testified that he always intended Florida to be his permanent residence);Gipson v. Gipson,151 Fla. 587, 10 So.2d 82(1942)(en banc).

In Eckel, the Okaloosa County, Florida, trial court dismissed Mr. Eckel's petition for dissolution of marriage, where Mrs. Eckel alleged that he had not been a physical resident of the state during the six-month period prior to the filing of the petition and that she had never lived in Florida.We reversed that ruling on the grounds that Mr. Eckel had lived in Florida in 1964-71 while a member of the United States Air Force, that he had voted in Florida since 1968, that he had bought a house in Okaloosa County in 1970 and still maintained an ownership interest in it, that he had lived in Florida briefly in 1975 upon retiring from the military at Eglin Air Force Base, that he maintained an Eglin Federal Credit Union account, and that he had a current Florida driver's license.After his retirement, Mr. Eckel transferred as a civilian employee of the United States Department of Defense to West Germany, where he continued to reside in such capacity until the filing of his petition.Mr. Eckel alleged that he was currently domiciled in Okaloosa County and had been a Florida resident for at least six months before filing the petition.522 So.2d at 1019.No showing was made either that Mr. Eckel maintained a legal residence anywhere other than in Florida, or that at anytime...