Wade v. Wade

• Decision Date: 10 May 1927
• Citation: 113 So. 374,93 Fla. 1004
• Parties: WADE v. WADE.
• Court: Florida Supreme Court

113 So. 374

93 Fla. 1004

WADE v. WADE.

Florida Supreme Court, Division A.

May 10, 1927

Suit by John Wade against Hannah M. Wade for divorce. From a decree for the complainant, defendant appeals.

Reversed.

Brown J., dissenting.

Syllabus by the Court

SYLLABUS

Except where defendant has committed adultery in state, two years' residence in state by complainant must be alleged and proved in divorce suit (Rev. Gen. St. 1920, § 3189). Except where the defendant has been guilty of adultery in this state, the prerequisite two years' residence in this state of the complainant in a suit for divorce, as prescribed by section 3189, Rev. Gen. Stats. 1920, is jurisdictional and must be both alleged in the bill and established by the proofs; otherwise our courts have no authority to grant a decree of divorce.

Admissions of parties in divorce suit even by decree pro confesso amount to little; in divorce suit allegations of bill must be proved, not established by admissions; admission of two years' residence by complainant suing for divorce in pleadings is ineffectual as substitute for proof (Rev. Gen St. 1920, § 3189). The state being a party in interest in all divorce suits, and the public welfare and morals being involved, admissions of the parties therein, even by way of decree pro confesso, amount to but title. Proof of the allegations of the bill must be made.

Two years' residence required of complainant suing for divorce means 'legal residence,' that is, place of domicile, or permanent abode (Rev. Gen. St. 1920,§ 3189). The requirement of section 3189, Rev. Gen. Stats. 1920, that the complainant in a divorce suit must have 'resided' two years in the state before bringing suit, refers to a 'legal residence' of the complainant, that is to say the place of domicile or permanent abode of such person, as distinguished from a temporary residence. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Legal Residence].

'Reside' in divorce statute requiring complainant to reside in state two years refers to legal residence; 'legal residence' under divorce statute requiring complainant to reside in state two years means place which he has made chief seat of his household affairs or home interests (Rev. Gen. St. 1920,§ 3189). As used in section 3189, Rev. Gen. Stats. 1920, relating to the prerequisite two years' residence in this state of a complainant in a suit for divorce, the word 'reside' has reference to the complainant's legal residence, which means the place which an individual has made the chief seat of his household affairs or home interests, from which, without some special mission, he has no intention of departing, from which when he has departed, he is considered to be away from home, and to which, when he has returned, he is considered to have returned home. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Reside.]

Recognized distinction exists between residence for commercial purposes and one fixing court's jurisdiction to adjudicate on duties and obligations of marital status (Rev. Gen. St. 1920, § 3189). There is a recognized distinction between a residence for commercial purposes and such a residence as is necessary to support the jurisdiction of a court to adjudicate upon the duties and obligations growing out of the marital status.

'Legal residence' or 'domicile' may be acquired by one coming from another state or country and living in state intending to remain permanently; one coming into state from another state or country and living in state intending to remain establishes 'domicile by choice'; 'legal residence' consists of fact and intention, concurrence of both being necessary. A legal residence or domicile in this state may be acquired by one who, coming from another state or country, actually lives in this state, with the intention of permanently remaining here. In such a case a domicile by choice is established. Legal residence consists of fact and intention. Both must concur. [Ed. Note.--For other definitions, see Words and Phrases, Second Series, Domicile of Choice.]

Mere intention to acquire new domicile, unaccompanied by actual removal or removal without intention, avails nothing. The mere intention to acquire a new domicile, unaccompanied by an actual removal, avails nothing; neither does the fact of removal avail without the intention.

Evidence held insufficient to show establishing and retaining bona fide legal residence in state for two years by complainant before suing for divorce (Rev. Gen. St. 1920, § 3189). Evidence examined and found to be insufficient to meet the burden upon the complainant (in a suit for divorce) of proving the establishment and retention for two years of his bona fide legal residence in this state prior to the filing of the bill of complaint.

If complainant in divorce suit has become bona fide resident of state with intention to remain permanently as citizen, mere absence intending to return will not divest courts of jurisdiction of person or subject-matter (Rev. Gen. St. 1920, § 3189). If the complainant in a suit for divorce 'is or has become a bona fide resident of the state and intends to remain permanently a citizen of the state, mere absence with the intention of returning will not divest the courts of Florida of jurisdiction over such person or of the subject-matter' in a suit for divorce.

Appeal from Circuit Court, Dade County; A. J. Rose, Judge.

COUNSEL

G. A. Worley & Son, of Miami, for appellant.

Thompson, Barns, Thompson & Youmans, of Miami, for appellee.

OPINION

STRUM, J.

This is a suit for divorce, the husband being complainant below. From a decree granting the divorce as prayed, the defendant wife appealed.

The grounds upon which the divorce was sought are: (1) Extreme cruelty by the defendant wife to the complainant husband; and (2) habitual indulgence by the defendant in violent and ungovernable temper.

Amongst other things, the defendant below, appellant here, contends that the proof does not establish the prerequisite two years' residence in this state on the part of the complainant preceding the institution of this suit.

Except where the defendant has been guilty of adultery in this state, the prerequisite two years' residence in this state of the complainant in a suit for divorce, as prescribed by section 3189, Rev. Gen. Stats. 1920, is jurisdictional, and must be both alleged in the bill and established by the proofs; otherwise our courts have no authority to grant a decree of divorce. Beekman v. Beekman, 53 Fla. 858, 43 So. 923; Krumrine v. Krumrine, 90 Fla. 368, 106 So. 131. Such residence being jurisdictional, an admission thereof by the parties in their pleadings is ineffectual as a substitute for proof. The requisite residence must be alleged in the bill and established by proof. This is not an instance in which facts going to the jurisdiction may be effectually admitted by the parties. Phelan v. Phelan, 12 Fla. 449; Underwood v. Underwood, 12 Fla. 434; Gredler v. Gredler, 36 Fla. 372, 18 So. 762; Prall v. Prall, 58 Fla. 496, 50 So. 867, 26 L. R. A. (N. S.) 577.

The state being a party in interest in all divorce suits, and the public welfare and morals being involved, admissions of the parties therein, even by way of decree pro confesso, amount to but little. Proof of the allegations of the bill must be made. Hancock v. Hancock, 55 Fla. 680, 45 So. 1020, 15 L. R. A. (N. S.) 670. Even if the defendant fails to appear, the courts are nevertheless bound to proceed with the same formality as if such defendant was present and maintaining the keenest opposition. State ex rel. Dixon v. Wolfe, 63 Fla. 290, 58 So. 841; Spencer v. Spencer, 61 Fla. 777, 55 So. 71.

The requirement of section 3189, supra, that the complainant in a divorce suit must have 'resided' two years in the state before bringing suit, refers to a 'legal residence' of the complainant, that is to say, the place of domicile or permanent abode of such person, as distinguished from a temporary residence. The word 'residence' has a variety of significations depending upon its various applications, but used in this connection it is synonymous with 'domicile' or 'permanent abode.' Herron v. Passailaigue (Fla.) 110 So. 539.

In Phillmore's Law of Domicile (page 18), quoted with approval by this court in Smith v. Croom, 7 Fla. 81, it is said that 'domicile' answers very much to the common meaning of our word 'home.' Used in this connection, 'legal residence' or 'domicile' means a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time. The term 'domicile' was defined by the Roman law to mean:

'In whatsoever place an individual has set up his household goods and made the chief seat of his affairs and interests, from which, without some special avocation, he has no intention of departing; from which, when he has departed, he is considered to be away from home, and to which, when he has returned, he is considered to have returned home.'

The place where a married man's family resides is generally to be deemed his domicile, but the presumption from this circumstance may be overcome by other circumstances. Smith v. Croom, supra.

There is a recognized distinction between a residence for commercial purposes and such a residence as is necessary to support the jurisdiction of a court to adjudicate upon the duties and obligations growing out of the marital status. Keerl v. Keerl, 34 Md. 21. See, also, Smith v. Croom 7 Fla. 81.

Judge Story said:

'Domicile may be named under three distinct heads, namely, domicile of origin, which is the place of birth; domicile voluntarily acquired or domicile by choice; and domicile...