Eckel v. Eckel, 87-485

• Decision Date: 30 March 1988
• Docket Number: No. 87-485,87-485
• Citation: 13 Fla. L. Weekly 811,522 So.2d 1018
• Parties: , 13 Fla. L. Weekly 811 Harry Louis ECKEL, Appellant, v. Anita Karla ECKEL, Appellee.
• Court: Florida District Court of Appeals

Page 1018

522 So.2d 1018

56 USLW 2631, 13 Fla. L. Weekly 811

Harry Louis ECKEL, Appellant, v. Anita Karla ECKEL, Appellee.

No. 87-485.

District Court of Appeal of Florida First District.

March 30, 1988.

Dennis A. Barbarisi, Ft. Walton Beach, for appellant.

John P. Townsend of Chesser, Wingard, Barr & Townsend, Ft. Walton Beach, for appellee.

ERVIN, Judge.

Harry Louis Eckel appeals an order of the circuit court dismissing his petition for dissolution of marriage for lack of personal jurisdiction. Concluding that Mr. Eckel has satisfied the residency requirements of Section 61.021, Florida Statutes, we reverse the order of dismissal.

Appellant and his wife were married on May 18, 1981, in Queens, New York. The parties resided in West Germany until May 1983, when the wife left West Germany and moved to Montgomery, Alabama. Appellant's dissolution petition, filed in Okaloosa County, Florida, alleges that he is currently domiciled in Okaloosa County and has been a resident of Florida for at least six months before filing his petition. In opposition, the wife's motion to dismiss the petition states that the court lacks jurisdiction over the parties, because the husband "has not been a physical resident of the State of Florida for at least six months next prior to the filing of the Petition for Dissolution of Marriage."

A hearing was held on the motion to dismiss, at which the wife specially appeared, contesting the court's jurisdiction over the parties, testifying that she has never lived in the state of Florida. The husband, on the other hand, stated that he had lived in Florida from 1964 to 1971, while a member of the United States Air Force; that he bought a house in Okaloosa County in 1970 and still maintains an ownership interest in it; that he filed a notice of existing domicil in Okaloosa County, Florida on February 1, 1970; that he was stationed in West Germany while a member of the Air Force from 1971 until 1975; that in 1975 he retired from the military at Eglin Air Force Base and then lived in Florida for six months, and was thereafter transferred to West Germany as a civilian employee of the United States Department of Defense, where he has resided in such capacity until the filing of his petition. Despite his prolonged absence from Florida, he has nonetheless maintained an account with the Eglin Federal Credit Union, has a current Florida driver's license, and has voted in Florida since 1968.

Section 61.021, Florida Statutes, requires, in order for one to obtain a dissolution of marriage in Florida, that "one of the parties to the marriage must reside six months in the state before the filing of the petition." The six-month residency requisite has been construed "to mean the party filing the proceeding must reside in this state for the six months next preceding the filing of the petition." Gillman v. Gillman, 413 So.2d 412, 413 (Fla. 4th DCA 1982) (e.s.). 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 statutory period prior to the filing of their petitions of dissolution. See Cruickshank v. Cruickshank, 420 So.2d 914 (Fla. 1st DCA 1982); Sheppard v. Sheppard, 286 So.2d 37 (Fla. 1st DCA 1973). In Cruickshank, the husband, a colonel in the Air Force, was assigned to Eglin Air Force Base in Okaloosa County, Florida in 1966, where the family purchased a home, the husband registered to vote, registered a car, and opened an account with the Eglin Federal Credit Union. He was thereafter transferred to Scott Air Force Base in Illinois, where the parties also bought a home; finally in March 1982, he was assigned to Texas, leaving the wife in Illinois. This court, after observing that the husband still owned a home in Ft. Walton Beach, voted in Okaloosa County by absentee ballot, possessed a Florida driver's license, and maintained an account at the Eglin Credit Union, announced the following rule: "[T]he test of residency in Florida is physical presence in Florida and the concurrent intent to be a permanent resident." Cruickshank, 420 So.2d at 915 (citation omitted) (e.s.). The court concluded that the husband's physical presence in Florida from 1966 to 1971, coupled with facts showing an intent to remain, demonstrated that he had met the statutory residency requirement.

Sheppard contains a similar fact pattern, involving a husband who had never resided out of Florida since moving there at age four, except during tours of military duty. He was determined to have maintained a permanent residence in Florida, despite extended tours outside the state. Contrast Campbell v. Campbell, 57 So.2d 34 (Fla.1952) (statutory residency test not met, notwithstanding that a military officer filed an affidavit of intention to make Florida his permanent home, but had never lived the-then required 90 days in Florida, because the statute compelled actual residency). In the instant case, appellant lived in Florida from 1964 to 1971, and for six months in 1975, clearly meeting the requirement of actual residency.

We can perceive of no policy rationale excepting only members of the...