Warren v. Warren

• Decision Date: 29 March 1917
• Parties: WARREN v. WARREN.
• Court: Florida Supreme Court

75 So. 35

73 Fla. 764

WARREN v. WARREN.

Florida Supreme Court

March 29, 1917

Rehearing Denied May 7, 1917.

Appeal from Circuit Court, Monroe County; H. Pierre Branning, Judge.

Bill in equity by Alicia M. Warren against Jerry J. Warren to compel defendant's payment of permanent alimony, with a prayer for alimony pendente lite and for suit money. Decree allowing complainant $2,300 annually as permanent alimony and ordering defendant to pay solicitor's fees of $4,500 and all costs, and defendant appeals. Affirmed.

Whitfield J., dissenting.

Syllabus by the Court

SYLLABUS

Defenses in an equity cause should be interposed at the proper time and, if not, the party who offers them at a late stage in the proceeding must abide the discretion of the court reasonably exercised as to whether they will be allowed.

The trial court is clothed with broad discretion in the matter of allowing amendments to the pleadings in civil causes, and unless there is gross abuse of the discretion this court will not interfere with its exercise.

In a suit by a woman against her husband for maintenance under the provisions of section 1934 of the General Statutes of Florida 1906, where the application of the husband, made when nearly all the testimony had been taken, for leave to amend his answer by adding a paragraph charging the wife with adultery has been denied, and the application is supported by affidavits and other documents showing the alleged adulterous acts to have been committed 30 years before and other affidavits tending to show indiscreet conduct at a later date, the refusal of the court to allow the amendment will not be disturbed as an abuse of the chancellor's discretion.

Under section 1933 of the General Statutes of Florida 1906 providing for the granting of alimony to a wife when any of the causes for divorce exist in her favor, a married woman cannot maintain her cause against her husband unless she has acquired a residence in this state by actually living therein with the intention of permanently remaining and such residence has continued for two years next before the filing of the bill.

Under the provisions of section 1934 of the General Statutes of Florida 1906, the wife may maintain a bill in equity against her husband for maintenance, where the legal residence or domicile of either of them is in this state, and such residence need not have been acquired two years before.

Legal residence or domicile 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 case a domicile by choice is established.

Legal residence or domicile in this state of one whose domicile of origin is here or who may have established in this state a domicile by choice is sufficient to give the court jurisdiction of the subject-matter in a cause involving the duties and obligations arising out of his or her marital status with another, and temporary absence from the state even for a long period of years is not sufficient to divest the court of jurisdiction.

Upon the question whether a person has established a domicile by choice in another state or country, the court will inquire whether such person not only lived in such other state or country, but whether the intention to permanently remain there was present when the removal occurred, or was entertained at all, and upon the question of such intention the court will examine into the acts and declarations of the party whose legal residence is inquired about, and such evidence will be weighed as it is upon any other question.

Where in a suit by a wife against her husband for maintenance under the provisions of section 1934 of the General Statutes the question of the place of his legal residence becomes material, he may by certain conduct and declarations be estopped from asserting what his intention was in leaving the state or in living elsewhere.

Where for the purpose of invoking the jurisdiction of the courts of this state in a suit against his wife for divorce a husband alleges in a sworn bill of complaint that his domicile was in this state and had been for more than two years, and that he had never changed it from this state, he will be estopped in a suit brought by his wife for maintenance in the same court shortly afterwards from denying the truthfulness of such allegations of the bill, in so far as they involve a declaration of his intentions concerning a change of domicile when he left the state or during the period that he lived elsewhere up to the filing of his bill of complaint.

A foreign judgment upon a matter within the jurisdiction of the court rendering it and in which the court had jurisdiction of the parties will be regarded as conclusive between the parties in this state where there has been a trial upon the merits in the foreign court under a system of jurisprudence likely to secure impartial administration of justice, and there is no showing of prejudice on the part of the court or fraud in procuring the judgment, and no special reason why the comity of this nation should not allow it full credit.

The courts of this state will inquire into the merits of a foreign judgment when the courts of the country whose judgment is under consideration do not give effect to the judgments of the courts of this country upon the same subject.

A judgment or decree of a court of the republic of Cuba purporting to annul a ceremonial marriage between the parties performed in that country upon the grounds that the parties at the time of such marriage were already husband and wife construed to be an adjudication of the existence of the marital status of the parties.

COUNSEL Jefferson B. Browne, of Tallahassee, and Blount & Blount & Carter, of Pensacola, for appellant.

Hudson, Wolfe & Cason, of Miami, for appellee.

OPINION

ELLIS J.

In January, 1913, Alicia M. Warren, the appellee, hereinafter referred to as the complainant, exhibited her bill in equity in the circuit court for Monroe county, Fla., against Jerry J. Warren, who will be hereafter referred to as the defendant. The object of the suit was to compel the payment by the defendant to the complainant of permanent alimony in a sum commensurate with the defendant's means and ability. The bill contained a prayer for alimony pendente lite also, and for suit money.

The complainant seeks the relief prayed for under the provisions of two sections of the General Statutes of Florida 1906, viz. section 1933, which is as follows:

'If any of the causes of divorce set forth in section 1928 shall exist in favor of the wife and she be living apart from her husband, she may obtain alimony without seeking a divorce upon bill filed and suit prosecuted as in other chancery causes; and the court shall have power to grant such temporary and permanent alimony and suit money as the circumstances of the parties may render just; but no alimony shall be granted to an adulterous wife.'

The other section, which is 1934, is as follows:

'If any husband having ability to maintain or contribute to the maintenance of his wife or minor children shall fail to do so, the wife, living with him, or living apart from him through his fault, may obtain such maintenance or contribution upon bill filed and suit prosecuted as in other chancery causes; and the court shall make such orders as may be necessary to secure to her such maintenance or contribution.'

The complainant's bill contained, in substance, the following allegations, viz.: That the complainant is a legal resident of the state of Florida, and has been for two years last past; that the defendant is a citizen and resident of Monroe county, Fla., and that they are each over the age of 21 years; that complainant and defendant were married in December, 1886, at Key West, Fla.; that in 1896 they were divorced upon suit of the defendant; that in 1901 defendant represented to the complainant that the divorce was void and of no effect because of some legal defect, and persuaded complainant to resume marital relations with him; that in February, 1901, the defendant, while residing temporarily in Havana, Cuba, sent for the complainant to join him in Havana that she complied with the request, and on February 18, 1901, they were married in Havana, where they cohabited and lived together as man and wife until January, 1912; that during that time the defendant continuously maintained his 'legal and voting residence at Key West, Fla.' and from time to time during such period the complainant and defendant visited Key West and other Florida points together as man and wife, and that the defendant in Havana, and in Florida, and all other places and at all times introduced and acknowledged the complainant as his lawful wife; that in February, 1912, the defendant commenced proceedings in the 'primary court of the east in the city of Havana, Cuba,' for the annulment of their marriage. The complainant appeared by her attorney and answered the petition, but in July, 1912, the court rendered its final judgment by which it was 'decreed in effect that the marriage ceremony of the 18th day of February, 1901, in Havana, between your oratrix [the complainant] and defendant was performed and solemnized in accordance with the laws of Cuba, but that the same was null and void, because the said parties were at the time thereof already man and wife, and so incapable of entering upon a new marital contract.' The bill then proceeds to attack the judgment of the 'primary court of the east in Havana' by alleging that the court was without jurisdiction to enter the judgment because 'the parties thereto were shown by the record therein to have been at the time citizens and residents of Florida, temporarily sojourning in Havana, and...