Sternberg v. Sternberg
| Decision Date | 07 July 1939 |
| Citation | 139 Fla. 219,190 So. 486 |
| Parties | STERNBERG v. STERNBERG. |
| Court | Florida Supreme Court |
Rehearing Denied July 27, 1939.
Suit by Jacon Charles Sternberg against Etta Sternberg for divorce. From an order holding that a motion made pursuant to special appearance in effect constituted a general appearance thereby invoking jurisdiction of the court and requiring defendant to file an answer to the bill of complaint, the defendant appeals.
Affirmed. Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.
Rosenhouse & Rosenhouse, of Miami, and Waller & Meginniss, of Tallahassee, for appellant.
Simonhoff & Simonhoff, of Miami, and Whitfield & Whitfield, of Tallahassee, for appellee.
On August 15, 1937, appellee here filed in the Circuit Court of Dade County, Florida, his sworn bill of complaint against the appellant here, defendant below, alleging that for a period of more than ninety days preceding the filing of the bill of complaint he had resided continuously in Dade County Florida. Plaintiff below sought a divorce on the ground of habitual indulgence in a violent and ungovernable temper, and on the additional ground of extreme cruelty.
On September 11, 1937, the defendant below filed her special appearance and motion pursuant to special appearance as follows, viz.:
'Special Appearance
* * *
'Comes now the defendant, Etta Sternberg, by her undersigned attorneys, and appearing specially and solely for the purpose of contesting the jurisdiction of the Court over the person of this defendant and over the subject matter of this suit files this her special appearance and simultaneously herewith files her motion in support thereof. * * *
Motion Pursuant to Special Appearance.
* * *
'Comes now the defendant, Etta Sternberg, appearing herein specially and solely for the purpose of contesting the jurisdiction of the court over the person of this defendant and/or over the subject matter of this suit and not otherwise thereupon says:--
'First: That the matrimonial domicile of the plaintiff and defendant is now, and continuously has been since their marriage, in the City of New York, State of New York, on June 25th, 1924; that neither plaintiff nor defendant is now or ever has been, a resident of or in Dade County, State of Florida, but on the contrary continuously since their marriage as aforesaid, each of the parties have resided in and have been residents of the City of New York, State of New York.
'Second:--That the plaintiff and the defendant were lawfully married in the State of New York on June 25, 1924, and at the time of this marriage, the plaintiff had graduated from Bellevue Medical School, New York City, obtaining the degree of Doctor of Medicine; that shortly thereafter he was licensed to practice in the State of New York and that during the year of 1925 the plaintiff and defendant took yp residence in a private house in the Borough of Brooklyn, Kings County, City and State of New York, at 561 East 3rd Street, the lower portion in which home the plaintiff had his office and catered to his patients; that thereafter during the year of 1926 they purchased their own home in the Borough of Brtooklyn as aforesaid at 1516 West 7th Street, and wherein the plaintiff had his office, utilizing the upper story of said home so purchased for the living quarters; and the plaintiff and defendant occupied said residence both as their home and office until the year of 1933 when a certain separation agreement was entered into by and between the parties hereto; that after said separation agreement, the plaintiff continued to occupy and use the premises aforesaid, that is, the lower portion of said premises and living in the upper portion under an amicable arrangement with this defendant to pay the carrying charges of the mortgage, interest, taxes, repairs, etc. and such tenancy, continued until March, 1934; that thereafter, the plaintiff has his office in the Borough of Brooklyn, City of New York at 441 Ocean Avenue, and had his medical office at said place until the latter part of March 1937, at which time he changed his offices to 2023 Caton Avenue, in the Borough of Brooklyn, City of New York County of Kings, State of New York and he has his said offices at said place at the present time; that at the time of the removal of the plaintiff's offices from Ocean Avenue as aforesaid to the Caton Avenue address as aforesaid, the plaintiff did print removal cards and did send out and mail said removal cards to all of his patients and that this defendant has in her possession a notice of removal card printed in an envelope which was post-marked April 1st, 1937, and the said notice being enclosed in an envelope and addressed in the handwriting of the said plaintiff, all of which this defendant is willing to verify and the said envelope and removal card contained therein, she is willing to produce in court.
'Defendant further states that the plaintiff had built up a large and lucrative practice; that he still conducts said offices as aforesaid; that inquiring of the office by telephone one is advised that Dr. Sternberg 'had a heart attack and is now in Philadelphia under the care of a physician who is his uncle and that he is recuperating rapidly and will resume his practice in the latter part of September and that in the meanwhile, Dr. Samuel Felder is taking care of Dr. Sternberg's patients.' That the office at Caton Avenue as aforesaid contains the placard and sign of Dr. Sternberg, both in the window and in the entrance.
'Third Defendant further shows unto the Court that if the plaintiff has been in Florida for ninety days preceding the filing of his bill of complaint, she alleges that he has not been a resident of Florida within the meaning of the Statute requiring the ninety day residence as a predicate for the filing of the Bill of divorce; that his sojurn in Florida is merely temporary and solely and only for the purpose of trying to establish sufficient day...
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Klem v. Espejo-Norton, 3D06-3080.
...it with several other "defenses," including laches and res judicata. While this was indeed the law expressed in Sternberg v. Sternberg, 139 Fla. 219, 190 So. 486 (1939), that rule did not survive the enactment of the "new" rules of civil procedure more than fifty years ago. Under the presen......
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Harrison v. Harrison
...a motion seeking an order to dismiss and the grant of suit money and counsel fees, resulted in a general appearance: Sternberg v. Sternberg, 1939, 139 Fla. 219, 190 So. 486. The judgment of a court of competent jurisdiction must receive full faith and credit as to all matters in controversy......
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Babcock v. Whatmore
...over him for the simple reason that he appeared generally and requested the relief which he received."); Sternberg v. Sternberg, 139 Fla. 219, 224-25, 190 So. 486, 488 (1939) ("[W]hen a person appears specially for the purpose of presenting the question of jurisdiction of the court, he must......