Kiplinger v. Kiplinger
| Decision Date | 20 May 1941 |
| Citation | 147 Fla. 243,2 So.2d 870 |
| Parties | KIPLINGER v. KIPLINGER. |
| Court | Florida Supreme Court |
Rehearing Denied July 1, 1941.
En Banc.
Appeal from Circuit Court, Hillsborough County; L. L Parks, judge.
Zewadski & Pierce, of Tampa, for appellant.
John R Parkhill, of Tampa, for appellee.
The sole question for decision presented to this Court on appeal from an order dismissing a bill of complaint entered by the Circuit Court of Hillsborough County, Florida, is: In a suit for separate maintenance on the part of a wife brought under the provisions of Section 4989, C. G. L., where both the wife and the husband are within the jurisdiction of the court and are personally before the court, the husband having been served with process within the jurisdiction of the court, and the parties being temporary residents of the State of Florida, has a court of chancery the power under said Section 4989, C. G. L., to make such orders as may be necessary requiring the husband to contribute to the support and maintenance of his wife? The lower court dismissed the bill of complaint after taking evidence on the question of whether or not the plaintiff wife was a resident of the State of Florida.
The husband, through counsel, filed a special appearance objecting to the jurisdiction of the court over the defendant, as well as the subject matter of the suit. The special appearance is viz:
'Comes now the defendant Frank Kiplinger, appearing herein specially and solely for the purpose of contesting the jurisdiction of this court: (1) Over the person of this defendant, and/or (2) over the subject matter of this suit, and not otherwise, and thereupon says:
'1. That the matrimonial domicile of the plaintiff and defendant is now, and continuously has been since their marriage, in Muncie, Indiana. That neither plaintiff nor defendant is now, or ever has been, a resident of or in Hillsborough County, Florida, or of or in any other county in Florida, but on the contrary have continuously since their marriage resided in, and been residents of Muncie, Indiana.
'2. That plaintiff and defendant were married in Clearwater, Florida, on, to wit, February 18, 1931, and defendant has since said marriage, continuously maintained a home in or near Muncie, Indiana, for the defendant. This is the only home plaintiff and defendant have had since their marriage.
'Wherefore, defendant respectfully submits that this court has no jurisdiction over the person of defendant, nor has the court the lawful right to hear and determine the alleged right and rights of the plaintiff herein or to grant plaintiff any relief herein, whatsoever:
'Wherefore, defendant moves the Court as follows:
'(a) To quash the service of process herein.
'(b) To dismiss said proceedings herein.'
The record shows that the parties hereto resided in Muncie, Indiana, and were accustomed to spend annually the winter months in Florida and in the vicinity of Tampa. The parties reached Tampa on December 1, 1940, and the suit at bar was filed on December 3, 1940, and the defendant personally served with process in Hillsborough County, Florida. The bill of complaint prays for: (a) an order paying to the wife a sum of money as separate maintenance; (b) attorney's fees; (c) suit money; (d) an order restraining the husband from molesting the wife; (e) a writ of ne exeat preventing the husband from leaving the jurisdiction of the Court.
It was the holding of the Chancellor below that the burden of proof was on the plaintiff wife to establish by competent testimony that she was a resident of Florida on December 3, 1940, the time of filing the bill of complaint, and having failed to carry this burden, the court was without jurisdiction to entertain or hear the cause and an order dated January 6, 1941, dismissed the bill of complaint at the cost of the plaintiff.
The bill of complaint filed December 3rd, 1940, was predicated on Sections 4988 and 4989, C.G.L. On December 28, 1940, the bill of complaint was amended and thereby eliminated all allegations under or reference to Section 4988, and the bill as amended rested solely under the provisions of Section 4989. It is true that counsel for appellee contends that the several allegations on the part of the husband toward his wife appearing in the bill as amended brings the suit squarely within the spirit if not the letter of Section 4988, supra. Section 4989, C.G.L. is viz:
An examination of the material allegations of the bill as amended, inclusive of the several prayers, discloses that a divorce is not sought or any of the several provisions of Section 4988, C.G.L. invoked, but the suit is based on Section 4989, C.G.L., and no relief sought other than provided for therein. A line of decisions of this Court from the territorial period until the present time, with one or two exceptions, generally hold that when a suit is filed under Section 4989 supra, it is essential that one of the parties must be a resident of Florida at the time of the institution thereof so that the court will have jurisdiction of the parties and the subject matter involved. See Bursiel v. Bursiel, 124 Fla. 187, 168 So. 3; Hendrie v. Hendrie, 118 Fla. 478, 479, 159 So. 667;, Preston v. Preston, 116 Fla. 246, 157 So. 197; Chaves v. Chaves, 79 Fla. 602, 84 So. 672; Warren v. Warren, 73 Fla. 764, 75 So. 35, L.R.A.1917E, 490 (in the latter case Justice Whitfield filed a vigorous and able dissenting opinion); Donnelly v. Donnelly, 39 Fla. 229, 22 So. 648; Miller v. Miller, 33 Fla. 453, 15 So. 222, 24 L.R.A. 137.
In the case of Cobb v. Cobb, 82 Fla. 287, 89 So. 869, suit was filed in the Circuit Court of Okaloosa County by the wife against her husband, claiming alimony, unconnected with the cause of divorce, under the provisions of Section 4989, C.G.L., and it was contended that the wife plaintiff, being a citizen or resident of a State other than the State of Florida, could not maintain such a suit. The Court, in overruling this contention, in part said:
The case of Howell v. Howell, 113 Fla. 129, 151 So. 379, 154 So. 328, was a suit under the provisions of Section 4989, C.G.L., and the bill of complaint alleged that the defendant at the time of filing the bill of complaint was within the jurisdiction of the court. The record in the case at bar shows that the parties were within the jurisdiction of the court, the defendant having been personally served, and an assault on the wife by the husband was made in Hillsborough County and at the time plaintiff testified that her husband threatened to kill her. This Court in the case of Howell v. Howell, supra, 113 Fla. text 130, 154 So. text 328 in part said:
'* * * There appears to be no statute requiring the respondent to be a bona fide resident of the state for the complainant to maintain against him a suit of this character. The statute does require that the complainant must have resided two years in the state of Florida before the filing of a bill for divorce. Section 3189, Rev.Gen.St. section 4981, Comp.Gen.Laws. But section 3197, Rev.Gen.St. 4989 Comp.Gen.Laws provides:
"Alimony Unconnected with Causes of Divorce.--if any husband having ability to maintain or contribute to the maintenance of his wife or minor children shall fail to do so, the wife, living with him or living apart from him through his fault, may obtain such maintenance or contribution upon bill filed and suit prosecuted as in other chancery causes; and the court shall make such orders as may be necessary to secure to her such maintenance or contribution.'
'As there is no definite period of residence required either for the complainant or the defendant as a prerequisite to the filing and maintaining of a suit of this character, we think that the question as to whether or not the respondent was a bona fide resident of the state of Florida is immaterial since service of process was had upon him in this...
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