Mcgowin v. Mcgowin

Decision Date14 January 1936
CourtFlorida Supreme Court
PartiesMcGOWIN v. McGOWIN.

Suit by W. T. McGowin against Genevieve McGowin. From a decree dismissing the bill, complainant appeals.

Decree reversed. Appeal from Circuit Court, Hardee County; W. J. Barker Judge.

COUNSEL

L Grady Burton, of Wauchula, and Whitaker Brothers, of Tampa for appellant.

E. B Drumright, of Tampa, for appellee.

OPINION

ELLIS Presiding Justice.

The appeal in this case is from a decree dismissing a suit for divorce, the basis of the decree being that the complainant was not at the time of the institution of the suit a resident of the county in which the suit was begun, nor was the defendant a resident of that county at that time.

W. T. McGowin exhibited his bill in the circuit court for Hardee county for divorce against his wife. She was at that time, May, 1933, residing in the state of Illinois. The bill alleged that the complainant had resided in the state of Florida for two years last past before the filing of the bill.

In December, 1934, a summons in chancery was served on the defendant, Mrs. Genevieve B. McGowin, in Tampa, Fla. She appeared generally in January, 1935, and interposed her answer during the same month. There was included in the answer a plea of privilege in which it was averred that the actual residence of the complainant at the time of instituting the suit was Hillsborough county, Fla., and that he never was a resident of Hardee county; that the defendant's residence at the time of the application for the summons in chancery was Hillsborough county and that she had never resided in Hardee county; that no property was involved in the suit situated in Hardee county.

The matter was referred to a master to take evidence and report it to the court. That was done and the court found the facts to be that the complainant was at the time of the decree and at the time of the institution of the suit a resident of Hillsborough county, Fla., and that neither he nor the defendant ever resided in Hardee county where the suit was begun; that the defendant's plea of privilege to be sued in the county of her residence was not sustained. That finding rested evidently upon the fact that when the suit was begun Mrs. McGowin was a resident of the state of Illinois.

The chancellor in this state of the case held that the circuit court for Hardee county was without jurisdiction to entertain consideration of the cause and dismissed the suit. There is ample evidence in the record to support the findings of fact. The only question therefore involved is, May a person who has resided in Florida for two years continuously maintain a suit for divorce in any county of the state other than the county of his residence, when his or her spouse resides in a state other than the state of Florida?

When the bill for divorce was filed in this case the statute required residence by the complainant in this state for two years before the filing of the bill, except in cases where the defendant has been guilty of the act of adultery. See section 4981, C.G.L. 1927. There was no such ground alleged in this case.

Chapter 16975, Acts of Florida 1935, reduced the period of residence by the complainant to ninety days before the filing of the bill of complaint. Upon the subject of the locality of actions, the statute provides that 'suits shall be begun only in the county * * * where the defendant resides, or where the cause of action accrued, or where the property in litigation is.' See section 4219, C.G.L.

Now the defendant did not reside in Florida when the bill was filed and there is no property involved in the litigation, and as the grounds alleged for the divorce were extreme cruelty and desertion, it does not appear that the 'cause of action,' assuming that the term 'grounds for divorce' has the same significance, accrued in the state of Florida. So the statute, section 4219, supra, has no bearing upon this proceeding.

Section 4980, C.G.L. 1927, invests courts of equity with jurisdiction in cases of divorce.

The power to grant a divorce is a statutory and not a common-law power. 19 C.J. 23; Martin v. Martin, 173 Ala. 106, 55 So. 632; Herron v. Passailaigue, 92 Fla. 818, 110 So. 539, 542. In the latter case the court, speaking through Mr. Justice Terrell, said: 'No principle of law is better settled then this: The right of every state, under the Constitution of the United States, to regulate the matter of marriage and divorce within its own borders and to defend it against encroachment, and to fix and declare the matrimonial status of its own citizens.' But the power to grant divorces is a judicial power and not a legislative one. See Ponder v. Graham, 4 Fla. 23.

Whatever confusion of authority may exist upon the subject between the various sovereignties of the United States, the distinction between the power of the Legislature to enact laws regulating marriage and divorce and the power of the judiciary to dissolve the marriage contract upon a proper showing must be considered settled and clearly defined in this state.

While the marriage relation is a matter of contract between the parties who enter upon that status, the state is regarded as a party at interest. The reason why it is so regarded has been many times set forth in former opinions and decisions of this court, and may not be repeated here without unnecessary iteration. See Gallemore v. Gallemore, 94 Fla. 516, 114 So. 371; Potter v. Potter, 101 Fla. 1199, 133 So. 94; Hancock v. Hancock, 55 Fla. 680, 45 So. 1020, 15 L.R.A. (N.S.) 670; Kennedy v. Kennedy, 101 Fla. 239, 134 So. 201.

The question presented in this case is not one of jurisdiction but of venue, the distinction between which has been long understood. See Paige v. Sinclair, 237 Mass. 482, 130 N.E. 177, 178; Shaffer v. Bank, 201 N.C. 415, 160 S.E. 481; Blanchard v. Twin City Market, 157 Va. 13, 160 S.E. 310.

As Chief Justice Rugg said, in the case of Paige v. Sinclair, supra:

'The distinction between jurisdiction and venue is plainly established. Potter
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  • Aldrich v. Aldrich
    • United States
    • West Virginia Supreme Court
    • October 22, 1962
    ...by statute, and a power exercised by the court in such proceedings must be in the statute or it does not exist.' In McGowin v. McGowin, 122 Fla. 394, 165 So. 274, the opinion contains these statements and citations: 'The power to grant a divorce is a statutory and not a commin-law power. 19......
  • Klem v. Espejo-Norton, 3D06-3080.
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    • Florida District Court of Appeals
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    ...extends to entire state); but cf. Citibank, N.A. v. Klein, 396 So.2d 763, 764 (Fla. 3d DCA 1981). See generally McGowin v. McGowin, 122 Fla. 394, 165 So. 274 (1936); State v. Ostergard, 360 So.2d 414, 414 (Fla.1978) (Adkins, J., concurring specially); 21 C.J.S. Courts § 112 (2006); 14D Char......
  • Goedmakers v. Goedmakers
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    • Florida Supreme Court
    • March 3, 1988
    ...the action is regarded as transitory. Carroll, 322 So.2d at 54 n. 1; Evans v. Evans, 141 Fla. 860, 194 So. 215 (1940); McGowin v. McGowin, 122 Fla. 394, 165 So. 274 (1936). Thus, a resident defendant in a dissolution proceeding has the right or privilege of being sued in the county of his r......
  • Carroll v. Carroll
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    • Florida District Court of Appeals
    • October 31, 1975
    ...1975)), which a marriage dissolution proceeding is not. Evans v. Evans, 141 Fla. 860, 194 So. 215 (1940); McGowin v. McGowin, 122 Fla. 394, 165 So. 274 (1936), affd. 131 Fla. 247, 173 So. 927 (1937). It has been held, however, that the presence of a child in the forum county is sufficient t......
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