Judd v. Schooley
| Decision Date | 13 December 1963 |
| Docket Number | No. 32548,32548 |
| Citation | 158 So.2d 514 |
| Parties | Kimi T. JUDD, Appellant, v. Harry SCHOOLEY, as Tax Assessor of Lee County, Florida, Appellee, and George S. Hunter, Herman J. Hastings, Mack H. Jones, Julian Hudson and J. Fred Huber, as and constituting the Board of County Commissioners of Lee County, Florida, a Political Subdivision, and Ray E. Green, as Comptroller of the State of Florida. |
| Court | Florida Supreme Court |
Henderson, Franklin, Starnes & Holt and Duane A. Reynolds, Fort Myers, for appellant.
R. W. Shaughnessy, Fort Myers, for appellee.
We have for review on appeal a decision of a District Court of Appeal, which initially construed a controlling provision of the Florida Constitution.
We must decide whether a married woman, living congenially with her husband, may establish a residence in her separate property and thereby receive the tax benefits provided by Article X, Section 7, Florida Constitution, F.S.A., otherwise known as the Homestead Exemption Amendment.
The undisputed facts are revealed by the decision of the District Court. Schooley v. Judd, Fla.App., 149 So.2d 587. For a number of years prior to 1958, Mrs. Judd and her husband owned certain real estate in Lee County. During this period they were both residents of Florida. In December 1958, Mr. Judd conveyed the property to his wife. At that time he announced the removal of his domicile from Lee County to Washington, D. C., where he also owned a home. He changed his domicile for business reasons to enable him to meet certain legal requirements to serve on the board of directors of a corporation in the District of Columbia. Mrs. Judd continued to occupy the Florida property. She also continued to vote in Lee County. She holds a Florida drivers license and maintains a Florida license tag on her automobile. The Judds continue to live together harmoniously as husband and wife and for extended periods of each year reside together in the home on the real estate in question.
In the year 1961 Mrs. Judd applied for the constitutional homestead tax ememption benefits provided by Article X, Section 7, Florida Constitution. The county tax assessor refused to allow the claimed exemption for the announced reason that:
The County Commissioners, as a board of equalization, upheld the decision of the tax assessor. Mrs. Judd thereupon instituted the instant proceeding for a declaratory decree pursuant to Section 192.19, Florida Statutes, F.S.A. The chancellor found with the plaintiff. He held that she was entitled to the claimed exemption.
Initially, the decree was brought to this Court by direct appeal from the circuit court. Having the view that the chancellor did not, by his decree, construe a controlling provision of the Constitution, we transferred the appeal to the District Court of Appeal, Second District. Schooley v. Judd, Fla.1962, 142 So.2d 727. The District Court, by its decision now under review, did construe a controlling constitutional provision. The matter now comes to us on appeal to review that decision.
The appellant here has also filed a petition for a writ of certiorari to review the same decision because of alleged conflicts with prior decisions of this Court. This procedure apparently was adopted out of an abundance of caution in the event that we should decline jurisdiction of the appeal. Our examination of the decision of the District Court has led us to conclude that that court did initially construe a controlling provision of the Constitution. We, therefore, take jurisdiction of the appeal and simultaneously deny the collateral petition for certiorari.
It should be recalled that the chancellor granted the claimed exemption. The majority of the District Court reversed. In doing so the District Court looked to the language of Article X, Section 7, Florida Constitution, which reads in part as follows:
The District Court took cognizance of the rule that normally it is generally recognized that a wife's residence or domicile is that of her husband. It further noted the now accepted exemption to the effect that a wife may acquire a separate residence 'if it should become proper or necessary for her to do so.' Merritt v. Merritt, Fla.1951, 55 So.2d 735. By its decision, which we now review, the District Court held that the constitutional requirement of 'good faith' implicitly impells the conclusion that a married woman cannot, in good faith, establish a separate residence unless she is compelled to do so by the necessity of a degenerating marital relationship. Stated otherwise, it was the holding that in order to establish 'good faith' the married woman must disclose facts which would demonstrate that it is necessary for her to live separate and apart from her husband. This led to the conclusion that when a husband and wife continue to live congenially in the marital relationship, as is the case here, the wife cannot legally establish a Florida residence when her husband is domiciled in another jurisdiction.
We have the view that the decision of the District Court places too great an emphasis on the common-law fiction that by marriage a woman's identity is absorbed into that of her husband. Under this concept, which permeated the law for several hundred years, it was held that upon...
To continue reading
Request your trial
-
Florida Greyhound v. West Flagler Assoc.
...of Appeal had earlier reached the same conclusion in Schooley v. Judd, 149 So.2d 587, 590 (Fla.2d DCA), rev'd on other grounds, 158 So.2d 514 (Fla.1963), stating that"such a decision does not establish any point of law; and there is no presumption that the affirmance was on the merits."10 I......
-
Holbein v. Rigot
...from above. See Armstrong v. City of Tampa, Fla.1958, 106 So.2d 407; In re Kionka's Estate, Fla.1960, 121 So.2d 644, and Judd v. Schooley, Fla.1963, 158 So.2d 514. After study, we conclude the entire Texas judgment for both compensatory and punitive damages is entitled to full faith and cre......
-
Carroll v. Carroll
...(1857), reh. den. 7 Fla. 180. The harder cases inevitably arising in this day of atomic families and separate residences (Judd v. Schooley, 158 So.2d 514 (Fla.1963)) will respond to a test like that employed to resolve domiciliary controversies in other contexts. See Wade v. Wade, 93 Fla. 1......
-
Colwell v. Royal Intern. Trading Corp.
...is required is that the property owner reside on the property and in good faith make the same his permanent home. See Judd v. Schooley, 158 So.2d 514, 516 (Fla. 1963). Property established as a homestead retains its exempt status until it is abandoned. See In re Mackey, 158 B.R. at 513. A h......