Hadley v. Hadley
| Decision Date | 24 April 1962 |
| Docket Number | No. 61-380,61-380 |
| Citation | 140 So.2d 326 |
| Court | Florida District Court of Appeals |
| Parties | Etheline HADLEY, Appellant, v. Bruce A. HADLEY, Appellee. |
Holladay & Swann, Miami, for appellant.
William John Mason, Miami, for appellee.
Before PEARSON, TILLMAN, C. J., and HORTON and BARKDULL, JJ.
Etheline D. Hadley brought an action against her husband, Bruce A. Hadley, for alimony unconnected with causes of divorce. He filed a counterclaim praying for a decree of divorce. After trial, the chancellor entered a final decree denying the wife's prayer and granting that of the husband. The wife appeals.
Three points are presented on appeal; each questions the sufficiency of the evidence to support the decree. Under the first point the appellant, wife, urges that the decree should be reversed because the record does not contain sufficient proof of the residence of the husband to support a decree of divorce. She points out that § 65.02, Fla.Stat., F.S.A., requires that the complaining party in a divorce action must have resided in the state for six months before the filing of the complaint, and that proof of the residence for the statutory period is jurisdictional. The appellee, husband, argues that we ought not consider the point because it was not raised in the trial court, but he overlooks the rule that a question of jurisdiction may be raised at any stage in the proceeding and even considered by an appellate court when not raised in the pleadings or expressly presented to the trial court. In re Weiss' Estate, Fla.App.1958, 102 So.2d 154. See also Rule 3.7, subd. i, Florida Appellae Rules, 31 F.S.A.
Appellee suggests that the counterclaim for divorce was a compulsory counterclaim and that such a counterclaim acquires validity from the fact that the court already has jurisdiction of the parties and the subject matter. This argument works very well for jurisdiction over the parties, but not for the subject matter. The statute referred to expressly limits the jurisdiction of the Florida courts in divorce to those cases where the complainant for divorce is a resident for the prescribed period. Since the parties may not confer jurisdiction of the subject matter, it follows that they may not do so indirectly by the pleadings. Wade v. Wade, 93 Fla. 1004, 113 So. 374.
We must examine the proofs offered to determine whether the record supports the complainant-husband's claim of residence. The matters involved in this cause were the subject of intense controversy between the parties. We think that this is important because it effectively eliminates the possibility of collusion in this case. Briefly, the history as to residence is that the family, counter-plaintiff and counter-defendant and their...
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Groover v. Groover, 78-2207
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