Miller v. Miller

• Citation: 33 Fla. 453,15 So. 222
• Parties: MILLER v. MILLER.
• Decision Date: 11 April 1894
• Court: United States State Supreme Court of Florida

15 So. 222

33 Fla. 453

MILLER v. MILLER.

Florida Supreme Court

April 11, 1894

Appeal from circuit court, Volusia county; John D. Broome, Judge.

Bill by Jennie Miller against Isaac Miller for alimony. From an order granting complainant's petition for alimony pendente lite, for attorney's fees, and for suit money, defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where alimony is sought, without divorce, solely under the provisions of section 1485, Rev. St., upon the ground of the existence in favor of the wife of some one or more of the legal causes for divorce, then the applicant must allege and prove that she has legally been a bona fide resident and citizen of this state for two years continuously next prior to the filing of her application. The prerequisite two-years residence here is jurisdictional; and no 'cause for divorce,' such as our courts could recognize, can properly be said to exist, in this state, in favor of any applicant, until she has, bona fide, resided here the requisite period of two years.

2. Where the application for alimony, without seeking divorce is predicated, under the provisions of section 1486, Rev St., upon the ability of the husband to maintain the wife and his failure so to do, then it is not necessary for the wife to allege or prove that she has resided here for two years; but in such case, in so far as the question of the jurisdiction of the court to entertain the cause is concerned, it is only necessary for her to show that either she or her husband has, in a proper and legitimate manner become, at the time of the application, a bona fide resident and citizen of this state. It is immaterial, in the latter case, how long such residence and citizenship shall have continued here prior to the application. But it is not within the spirit or intent of either of these provisions of the statute to confer upon our courts the power to interfere in any respect with the marital status of citizens of other states, who may be here only on a temporary visit, either to pass upon such status, or to enforce any of the rights and duties that depend thereon.

3. Where an issue is raised by the pleadings, in a proceeding for alimony without divorce, as to the jurisdiction of the court, on the ground that neither the applicant wife nor the defendant husband is a resident or citizen of this state, such jurisdictional question is no bar to the granting of temporary alimony and suit money pendente lite; but in such case it is within the sound judicial discretion of the court to award temporary alimony, pendente lite, until such jurisdictional issue, with others material to the proper determination of the controversy between the parties, can be finally heard, and disposed of upon the proofs.

COUNSEL John W. Price, for appellant.

Scott & Broome, for appellee.

OPINION

TAYLOR J.

The appellee, Jennie Miller, filed her bill in the circuit court of Volusia county on the 18th day of December, 1893, against her husband, Isaac Miller, the appellant; praying therein, not for divorce, but for alimony, and the custody of their infant son, one of the age of 12 years, and for an allowance for the maintenance of said child, and for a writ ne exeat, to prevent the defendant from departing the state, and to furnish security for his compliance with the order for alimony.

The bill alleges, in substance: That the complainant, Jennie Miller, is a resident and citizen of the state of Florida. That she and the defendant, Isaac Miller, are husband and wife. That they were married in the state of New York in 1879, and that afterwards they removed to the town of Franklyn, in the state of New Jersey, at which place they resided until July, 1892, when the defendant kissed her, and bade her goodbye; promising to return in three weeks' time; telling her that the object of his trip was to establish a syndicate of some kind some where in Texas. That the defendant continued to write to her until some time in November, 1892, when he ceased his letters, and she has never heard directly from him since. That defendant left her without a cause, and has from the said July, 1892, willfully, obstinately, and continuously deserted her; leaving her in the mean time entirely unprovided for, and without means of support, other than what she was able to earn by her own labor and industry. That she has borne one child for the defendant, a boy, now about the age of 12 years, named Isaac Harry Miller, who is now with her, and who has been supported and maintained by her since the desertion of her by the defendant. That she has been informed and believes, and upon such information and belief charges, that the defendant has avowed his purpose and intention to procure possession of this child, even at the cost of blood, if necessary. That since his desertion of her the defendant has resided in the state of Texas. That she has inherited by the death of a sister, Elizabeth C. Bodine, late of Volusia county, Fla., who died intestate in said county in 1893, the one-fifth interest in certain real and personal property belonging to her said deceased sister's estate. That, by the consent and at the request of three of the heirs of the said estate, she has applied for and obtained a grant of letters of administration upon said estate, and that Charles Delamater, a son of a deceased sister of the said Elizabeth C. Bodine, deceased, has been appointed as her coadministrator upon said estate. That the defendant, having ascertained that she has inherited, in the manner aforesaid, the one-fifth interest in the estate aforesaid, and desiring and intending to harass and wrong her, by attempting to exercise the right of a husband over the estate of his wife given to the husband by the laws of Florida, has left his home and business in Texas, and has come to Florida, recently, with the purpose and intention of taking possession of her property and of the said child, Harry Miller, with the intent to carry beyond the limits of the state of Florida all of her personal property that he can lay his hands upon, and also to take from her, and carry out of the state of Florida, her said child. That she is advised she has good cause of divorce against her said husband, upon the ground of his willful, obstinate, and continued desertion of her for one year, and that she has the legal right, under the laws of Florida, to obtain alimony without seeking a divorce. That the defendant has ample means, and is fully able, to maintain and contribute to her maintenance and that of his said child, and has without any fault of hers, and wholly without excuse of any kind, utterly failed to do so. That the said estate in which she has a one-fifth interest, aforesaid, is still unsettled, the debts have not yet all been paid, nor has the said estate, as yet, been divided; and she is therefore still dependent upon her own industry for the means of maintenance for herself and her said child. That the defendant will very soon, and may at any time, remove himself beyond the limits of the state of Florida, and beyond the reach of process of this court.

Personal service of the subpoena in chancery was made upon the defendant in Volusia county, Fla.

The defendant interposed a demurrer to the bill upon the grounds that there was no equity in the bill; that it was not legally sworn to, in order to obtain an injunction; that it was multifarious, in seeking relief of several kinds; and that the court of chancery was without jurisdiction to adjudicate the subject-matter of said bill. This demurrer the court overruled, and such ruling is claimed to be error. The defendant then answered the bill, in substance, as follows He admits his marriage to the complainant, as alleged. He admits that he left Franklyn, N. J., about the 20th of July, 1892, but says that complainant knew where he was going, and the business upon which he was going; that the matter had been talked over between them before leaving for Texas, she having examined all his correspondence. He admits that he remained in Texas, but says that it was for the purpose of saving and securing a large sum of money, to wit, about $105,000. That he kept up a correspondence with the complainant, and sent her money as often as she needed it, until November following, when she, suddenly, and without any cause known to him, stopped answering his letters, and for reasons hereafter stated, to wit, that previous to his going to Texas the said Jennie Miller received from him about $1,700, with the request from him to deposit the same in bank to her own credit, she thereafter took a portion of that money, and went to California,...