Schooley v. Judd

• Decision Date: 30 January 1963
• Docket Number: No. 3446,3446
• Citation: 149 So.2d 587
• Parties: Harry SCHOOLEY, as Tax Assessor of Lee County, Florida, 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, Appellants, v. Kimi T. JUDD, Appellee.
• Court: Florida District Court of Appeals

Page 587

149 So.2d 587

Harry SCHOOLEY, as Tax Assessor of Lee County, Florida, 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, Appellants, v. Kimi T. JUDD, Appellee.

No. 3446.

District Court of Appeal of Florida, Second District.

Jan. 30, 1963.

Rehearing Denied Feb. 21, 1963.

R. W. Shaughnessy, Fort Myers, for appellants.

Duane A. Reynolds, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.

SMITH, Judge.

From a final decree finding plaintiff-appellee entitled to homestead exemption from taxation under Article X, Section 7 of the Florida Constitution, F.S.A., defendants-appellants, the Tax Assessor of Lee County, the Board of County Commissioners, and the Comptroller of Florida, bring this appeal which was transferred here from the Supreme Court of Florida. See Schooley v. Judd, Fla.1962, 142 So.2d 727.

The plaintiff filed her claim for homestead tax exemption for the year 1961, asserting that she held the legal title to the real property erty involved; that she resided thereon on January 1st; and that she in good faith makes the same her permanent home. The Tax Assessor found her not to be entitled to the exemption claimed, giving as his reasons therefor: 'Husband claims domicile other than Florida. Domicile of wife follows that of husband unless separate set-up for purposes of legal separation or divorce.'

Upon appeal from the decision of the Tax Assessor refusing to allow the exemption, the Board of County Commissioners, sitting as a board of equalization reviewed the application and affirmed the decision of the Assessor. The applicant then instituted proceedings for a declaratory decree pursuant to Section 192.19, Florida Statutes, F.S.A. Following a final hearing, the chancellor entered the decree finding the plaintiff entitled to homestead exemption.

There is no dispute between the parties as to the facts, so it is incumbent upon us to determine whether the chancellor correctly found that Mrs. Judd was entitled to the homestead exemption from taxation. The facts are that Mrs. Judd and her husband owned the real property and both were residents of Lee County, Florida, until December, 1958, when her husband conveyed the property to her. At about the same time, her husband filed a declaration of removal of domicile from Lee County, in which he stated that he had established his domicile in Washington, D. C., where he owned a home. The husband testified that he changed his domicile to Washington because of certain requirements of law pertaining to his acting as a member of the board of directors of a corporation existing under the laws of the District. Mr. and Mrs. Judd continue to live together as husband and wife, and there has never been any separation. Mrs. Judd has continued to vote in Lee County, and she maintains a Florida driver's license and a Florida license tag on her automobile. Mr. and Mrs. Judd have maintained their marital relationship in Lee County, Florida residing together in her home, the real property described in the complaint.

Article X, Section 7 of the Constitution of Florida, provides, insofar as pertinent to the facts here, as follows:

'Every person who has the legal title * * * to real property in this State and who resides thereon and in good faith makes the same his or her permenent home, * * * shall be entitled to an exemption * * *. The Legislature may prescribe appropriate and reasonable laws regulating the manner of establishing the right to said exemption.'

We have stated in Poppell v. Padrick, Fla.App.1959, 117 So.2d 435, that 'The constitutional and statutory provisions concerning homesteads should be interpreted in the liberal and beneficent spirit in which they were conceived.' It has also been noted by our Supreme Court that Florida and Mississippi are practically alone in their policy of withdrawing homesteads as a source of revenue for the support of local government. Overstreet v. Tubin, Fla.1951, 53 So.2d 913.

"The words and terms of a Constitution are to be interpreted in their most usual and obvious meaning, unless the text suggests that they have been used in a technical sense. The presumption is in favor of the natural and popular meaning in which the words are usually understood by the people who have adopted them.

"* * * It must be very plain, nay absolutely certain, that the people did not intend what the language they had employed in its natural signification imports before a court should feel at liberty to depart from the plain meaning of a constitutional provision. * * *" City of Jacksonville, et al. v. Glidden Co., 1936, 124 Fla. 690, 169 So. 216.

In addition to the foregoing general principles, the rule is well established in Florida and elsewhere that where the benefits of an exemption from taxation are claimed, then the constitution or statute in question must be construed strictly against the one attempting to bring himself within the terms of the exemption. This does not mean that where an exemption is claimed in good faith the provision of law under which the claimant attempts to bring himself is to be subjected to a strained and unnatural construction as to defeat the plain and evident intendments thereof; but it does mean that the person claiming the exemption has the burden of proving that he is within the usual and obvious meaning of the constitutional and statutory provision which establishes the exemption. Lummus v. Cushman, Fla.1949, 41 So.2d 895.

It is the general rule recognized in this and most other jurisdictions that a wife's residence or domicile is that of her husband. There is a well-established exception to this rule; that is, a wife may acquire a residence separate and apart from that of her husband if it should become proper or necessary for her to do so. This right of establishing a separate residence springs from the necessity of its exercise and endures as long as the necessity continues. Herron v. Passailaigue, 1926, 92 Fla. 818, 110 So. 539; Merritt v. Merritt, Fla.1951, 55 So.2d 735.

Since the 1938 Amendment to Article X, Section 7, it has not been necessary to establish the relationship of the head of a household as a prerequisite to qualify for the exemption, because that requirement was thereby specifically eliminated. It was, however, incumbent upon the plaintiff to prove the necessity for her exercising her right of establishing a separate residence from that of her husband, and to show the continuance of that necessity in order to show the length of its endurance. Thus only could it be established that she in good faith makes the property in question her permanent home. The Supreme Court of Florida has defined the words, 'good faith,' as 'a concrete quality, descriptive of the motivating purpose of one's act or conduct when challenged or called in question.' Municipal Bond & Mortgage Corporation v. Bishop's Harbor Drainage Dist., 1944, 154 Fla. 246, 17 So.2d 226.

The record here fails to disclose any facts showing the necessity for Mrs. Judd to establish a residence separate and apart from her husband. Having shown no such necessity, it follows that she had no right to establish a...