Maltzman, Marvin S.

English

University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Law Review7-1-1961Domestic Relations -- Florida JurisdictionalRequirements for DivorceMarvin S. MaltzmanFollow this and additional works at: http://repository.law.miami.edu/umlrThis Case Noted is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami LawReview by an authorized administrator of Institutional Repository. For more information, please contact library@law.miami.edu.Recommended CitationMarvin S. Maltzman, Domestic Relations -- Florida Jurisdictional Requirements for Divorce, 15 U. Miami L. Rev. 409 (1961)Available at: http://repository.law.miami.edu/umlr/vol15/iss4/5CASES NOTEDDOMESTIC RELATIONS -FLORIDA JURISDICTIONALREQUIREMENTS FOR DIVORCEDefendant moved from Maryland to Florida, intending to establishFlorida as his family's permanent home. By agreement, his wife was tojoin him at a later date. Plaintiff joined her husband and they residedtogether for a short period of time. Subsequently, the wife filed a complaintfor divorce which was dismissed for lack of jurisdiction. On appeal, held,affirmed: a wife who is not physically present within the borders of thestate for the statutory period of time1 cannot acquire residence throughher husband's previously established domicile. Brown v. Brown, 123 So.2d382 (Fla. App. 1960).Florida has consistently held the statutory residence period in divorcecases to be a jurisdictional requirement. 2 Its courts have no authority togrant a divorce unless residence is both alleged3 and proven by theplaintiff.4 It is also well established that whether the plaintiff is a residentof the state is a mixed question of law and fact to be determined bythe chancellor.5A problem arises in the court's interpretation of the term "must haveresided" as used in the Florida statute.- The Supreme Court of Floridahas held that the term residence, when used in divorce statutes, is usedin the sense of a legal residence or place of domicile or permanent abode1. FLA. STAT. § 65.02 (1959). "In order to obtain a divorce the complainantmust have resided six months in the state before the filing of the bill of complaint ..(Emphasis added.)2. Kutner v. Kutner, 159 Fla. 870, 33 So.2d 42 (1947); Mills v. Mills, 153 Fla.746, 15 So.2d 763 (1943); Phillips v. Phillips, 146 Fla. 311, 1 So.2,d 186 (1941);Curley v. Curley, 144 Fla. 728, 198 So. 584 (1940); Wade v. Wade, 93 Fla. 1004,113 So. 374 (1927); Beekman v. Beekman, 53 Fla. 858, 43 So. 923 (1907); Donnellyv. Donnelly, 39 Fla. 229, 22 So. 648 (1897); Gredler v. Credler, 36 Fla. 372, 18So. 762 (1895).3. Curley v. Curley, 144 Fla. 728, 198 So. 584 (1940); Chisholm v. Chisholm,98 Fla. 1196, 125 So. 694 (1929);' Wade v. Wade, 93 Fla. 1004, 113 So. 374 (1927);Prall v. Prall, 58 Fla. 496, 50 So. 867 (1909); Beekman v. Beekman, 53 Fla. 858,43 So. 923 (1907); Gredler v. Credler, 36 Fla. 372, 18 So. 762 (1895).4. Mills v. Mills, 153 Fla. 746, 15 So.2d 763 (1943); Curley v. Curley,144 Fla. 728, 198 So. 584 (1940); Wade v. Wade, 93 Fla. 1004, 113 So. 374 (1927);Beekman v. Beekman, 53 Fla. 858, 43 So. 923 (1907).5. Fowler v. Fowler, 156 Fla. 316, 22 So.2d 817 (1945); Kiplinger v. Kiplinger,147 Fla. 243, 2 So.2d 870 (1941); MacQueen v. MacQueen, 131 Fla. 448, 179So. 725 (1938).6. FLA. STAT. § 65.02 (1959).UNIVERSITY OF MIAMI LAW REVIEWas distinguished from a mere temporary residence. 7 Thus, the court hasused the term residence to mean a domicile for a specified period oftime.8 In order for one to establish a domicile it is necessary for twofactors to concur: (1) physical presence within the state, and (2) theintention to reside indefinitely therein.9 It is also necessary for one tohave legal capacity in order to perfect the establishment of a new domicile.10It is generally recognized, in the absence of a judicial decree of separation,that the domicile of the husband is also the domicile of the wife.,1 This isbased upon the view that the husband is the head of the family, with thelegal obligation of support, and the right to choose the family domicile. 12Therefore, a married woman cannot claim a separate legal residence forthe purpose of commencing an action for divorce when the parties areliving together.' 3 However, if the wife separates from the husband forjust cause' 4 she may establish a residence of her own. 15The majority of jurisdictions have not permitted a wife to file suit fordivorce in the state of the husband's domicile when her only claim to7. Fowler v. Fowler, 156 Fla. 316, 22 So.2d 817 (1945); Curley v. Curley,144 Fla. 728, 198 So. 584 (1940); Evans v. Evans, 141 Fla. 860, 194 So. 215 (1940);Bowmall v. Bowmall, 127 Fla. 747, 174 So. 14 (1937); Minick v. Minick, 111 Fla.469, 149 So. 483 (1933). The court stated that the terms "residence" and "domicile"are synonymous in many cases, but " '[Riesidence' as used in . . . [the constructiveservice statutel should not be construed to be synonymous with 'domicile' in allcases .. " Minick v. Minick, supra at 483, 149 So. at 489; Chisholm v. Chisholm,98 Fla. 1196, 125 So. 694 (1929); Wade v. Wade, 93 Fla. 1004, 113 So. 374 (1927);Herron v. Passailaigue, 92 Fla. 818, 110 So. 539 (1926); Warren v. Warren, 73 Fla. 764,75 So. 35 (1917).8. Brown v. Brown, 123 So.2d 382, 384 (Fla. App. 1960). Accord, see casescollected in note 7 supra.9. Bloomfield v. City of St. Petersburg Beach, 82 So.2d 364 (Fla. 1955); Frankv. Frank, 75 So.2d 282 (Fla. 1954); Kiplinger v. Kiplinger, 147 Fla. 243, 2 So.2d 870(1941); Phillips v. Phillips, 146 Fla. 311, 1 So.2d 186 (1941); Wade v. Wade, 93Fla. 1004, 113 So. 374 (1927); Warren v. Warren, 73 Fla. 764, 75 So. 35 (1917);Beekman v. Beekman, 53 Fla. 858, 43 So. 923 (1907); Smith v. Croom, 7 Fla. 81 (1857).10. Miller v. Nelson, 160 Fla. 410, 35 So.2d 288 (1948).11. Merritt v. Merritt, 55 So.2d 735 (Fla. 1951); McIntyre v. McIntyre, 53So.2d 824 (Fla. 1951); Curley v. Curley, 144 Fla. 728, 198 So. 584 (1940); Minick v.Minick, 111 Fla. 469, 149 So. 483 (1933); Herron v. Passailaigue, 92 Fla. 818,110 So. 539 (1926).12. Frank v. Frank, 75 So.2d 282 (Fla. 1954); Pawley v. Pawley, 46 So.2d 464(Fla.), cert. denied, 340 U.S. 866 (1950); Walker v. Walker, 64 Fla. 536, 59 So. 898(1912).13. Frank v. Frank, 75 So.2d 282 (Fla. 1954); Bowmall v. Bowmall, 127 Fla. 747,174 So. 14 (1937); Minick v. Minick, 111 Fla. 469, 149 So. 483 (1933); Herron v.Passailaigue, 92 Fla. 818, 110 So. 539 (1926).14. Generally, a wife may acquire a separate domicile from that of her husbandwhen he has been guilty of some misconduct or dereliction of his marital duties whichwould give rise to a cause of action for divorce. Frank v. Frank, 75 So.2d 282Fla. 1954); Gratz v. Gratz, 137 Fla. 709, 188 So. 580 (1939) (cruelty); Chisholm v.hisholm, 105 Fla. 402, 141.So. 302 (1932) (abandonment of the wife by the husband).See generally, 17 AM. JUR. Divorce and Separation § 292 (1957).15. Frank v. Frank, 75 So.2d 282 (Fla. 1954); Merritt v. Merritt, 55 So.2d735 (Fla. 1951); McIntyre v. McIntyre, 53 So.2d 824 (Fla. 1951); Curley v. Curley,144 Fla. 728, 198 So. 584 (1940); Gratz v. Gratz, 137 Fla. 709, 188 So. 580 (1939);Edmundson v. Edmundson, 133 Fla. 703, 182 So. 824 (1938); Minick v. Minick,111 Fla. 469, 149 So. 483 (1933); Chisholm v. Chisholm, 105 Fla. 402, 141 So. 302(1932); Herron v. Passailaigue, 92 Fla. 818, 110 So. 539 (1926); Walker v. Walker,64 Fla. 536, 59 So. 898 (1912).[VOL. XVCASES NOTEDdomicile or residence is based upon the maxim that the domicile of thehusband is that of the wife. 16 Some states refuse to adhere to the strictcommon law rule and allow the wife to establish a separate domicile.These courts reason that modern statutes have abolished the disabilitiesof married women, and by doing away with the unity fiction have nullifiedthe identity of the domicile of the spouses. 17 A few jurisdictions haveeliminated the problem by enacting statutes allowing the wife to acquirea residence in the state for the purpose of bringing a suit for divorce,independent of the desire of her husband.' 8 Other courts have held thata wife can acquire a separate domicile while living apart with the consentof her husband.'9The court, in the instant case, was faced with several conflictingconcepts: (1) that the domicile of the husband is that of the wife,20(2) the equation of the terms domicile and residence, 21 and (3) theFlorida Supreme Court's statement that one must have "actual residence"to satisfy the jurisdictional requirements in an action for divorce. 22 Thecourt relied upon the interpretations of these terms as used in other areasof the law, 23 and concluded that the terms are "technically distinct" for,purposes of divorce. 24 The court reasoned that the wife became a domiciliaryof the state when her husband arrived in Florida with the intent to resideindefinitely therein. 25  But, as the court distinguished the terms domicileand residence for purposes of divorce jurisdiction,26 the wife could notacquire her husband's residence unless she physically resided with himfor the statutory period of time. This result was based upon the court'sdetermination that residence requires an actual physical presence withinthe state.2716. George v. George, 190 Ky. 706, 228 S.W. 408 (1921); Phelps v. Phelps,241 Mo. App. 1202, 246 S.W.2d 838 (1952); Hopkins v. Hopkins, 35 N.H. 474(1857); Schonwald v. Schonwald, 55 N.C. 343 (2 Jones, Eq. 367) (1856); Malgrasv. Malgras, 15 Ohio App. 335 (1921); Starr v. Starr, 78 Pa. Super. 579 (1922);White v. White, 18 R.I. 292, 27 At. 506 (1893); Tower v. Tower, 120 Vt. 213, 138A.2d 602 (1958); Dutcher v. Dutcher, 39 Wis. 651 (1876). Contra, Kashaw v. Kashaw,3 Cal. 312 (1853); Thorns v. Thorns, 222 I1. App. 618 (1921); Ashbaugh v. Ashbaugh,17 I11. 476 (1856).17. Younger v. Gianotti, 176 Tenn. 139, 138 S.W.2d 448 (1940); Commonwealthv. Rutherfoord, 160 Va. 524, 169 S.E. 909 (1933).18. GA. CoDE ANN. § 79-403 (1937); KAN. GEN. STAT. ANN. § 60-1503 (1949).See Pearlstine v. Pearlstine, 148 Ga. 756, 98 S.E. 264 (1919); Johnson v. Johnson,57 Kan. 343, 46 Pac. 700 (1896).19. Antonelli v. Antonelli, 16 N.J. Super. 439, 84 A.2d 753 (Super. Ct. 1951);Webb v. Webb, 13 N.J. Misc. 439, 178 At]. 282 (Ch. 1934); In re Crosby's Estate,85 Misc. 679, 148 N.Y. Supp. 1045 (Surr. Ct. 1914); Younger v. Gianotti, 176 Tenn.139, 138 S.W.2d 448 (1940).20. Brown v. Brown, 123 So.2d 382, 384 (Fla. App. 1960).21. Herron v. Passailaigue, 92 Fla. 818, 110 So. 539 (1926).22. Campbell v. Campbell, 57 So.2d 34 (Fla. 1952).23. Minick v. Minick, 111 Fla. 469, 149 So. 483 (1933) (constructive servicestatute); Commonwealth v. Rutherfoord, 160 Va. 524, 169 S.E. 909 (1933) (taxation).24. Brown v. Brown, 123 So.2d 382, 384 (Fla. App. 1960).25. Ibid.26. Ibid.27. Id. at 385.19611412 UNIVERSITY OF MIAMI LAW REVIEWThere would appear to be an apparent conflict between the resultreached in the instant case and the Florida Supreme Court case ofMcIntyre v. McIntyre .2 In that case, the wife left Florida for more thansix months, returning for a few days to file for divorce. She alleged thatshe was a bona fide resident of Florida. The Florida Supreme Court heldthat the mere removal of the wife to another state, without more, isinsufficient to rebut the presumption that the wife's domicile was thatof the husband.2 9 Therefore, the wife acquired the necessary residencetime by virtue of the common law fiction that the domicile of the husbandis that of the wife.After careful review of the facts presented in the Brown case, itappears that the jurisdictional requirements should have been sustainedby the District Court of Appeal, when viewed in the light of the McIntyredecision. In both cases the court held that the wife acquired the domicileof her husband, but, according to McIntyre this was sufficient to conferresidence upon the wife.30 It is submitted that the court improperly incor-porated into the statute a new jurisdictional requirement for divorce. Acomplainant wife, whose husband has acquired a domicile in the state,must now physically reside six months in the state before the filing of hercomplaint. Although this would appear to be the better view, the changemade by the court properly lay with the state legislature.MARVIN S. MALTZMANLANDLORD AND TENANT -LANDLORD'S LIABILITYFOR NEGLIGENCE OF INDEPENDENT CONTRACTORThe lessors voluntarily agreed to repair the roof of certain leasedpremises. They employed an independent contractor to perform the work.While the repairs were being made, rain came through the roof anddamaged plaintiff's furniture and furnishings. The plaintiff sued thelessors for failure to exercise proper control over the contractor. The trialcourt granted defendants' motion to dismiss. On appeal, held, reversed:a lessor who gratuitously assumes to make repairs on leased premises maynot absolve himself from liability by employing an independent contractor.Easton v. Weir, 125 So.2d 115 (Fla. App. 1961).28. 53 So.2d 824 (Fla. 1951).29. Ibid.30. Ibid.[VOL. XV

Domestic Relations -- Florida Jurisdictional Requirements for Divorce

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Domestic Relations -- Florida Jurisdictional Requirements for Divorce

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