HomeMy WebLinkAboutM-85-1096LAST N
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MILLER J. DAWKINS October gib, 1qb; ,
CI COMMISSIONER
Voting Conflict
M TT&YtH-I �RA
City Clerk
Please fill out the enclosed Memorandum of Voting Conflict in
connection with Motion 85-1096 passed on October 24, 1985. This
pocket item dealt with Victor de Yurre's residency question.
If you have any questions, please do not hesitate to call.
MH:si
M� L/✓ fl� Y �✓ -
FORM 4 ME►WOORANDUM OF VOTIt _ ,i CONFLICT
LAST NAME -FIRST NAME -MIDDLE NAME
DAWKINS, Miller J . THE BOARD. COUNCIL, COMMISSION. AUTHORITY, OR COMMITTEE ON
WHICH 1 SERVE IS A UNIT OF
MAILING ADDRESS
5900 Pan American Drive I� CITY coe Y
Miami,
DATE ON WHICH VOTE OCCURRED
October 24, 1985
SAME OF BOARD. COUNCIL, COMMISSION. AUTHORITY. OR COMMITTEE
City Commission
*CITY 000UNTY OOTHER LOCAL AGENCY DSTATE
NAME OF POLITICAL SUBDIVISION OR STATE AGENCY
r
WHO MUST FILE FORM 4
This form is for use by any person serving on either an appointed or elected board, council, commission, authority, or committee,
whether state or local, and it applies equally to members of advisory and non -advisory bodies who are faced with a voting conflict of
interest.
As the vbting conflict requirements for public officers at the local level differ from the requirements for state officers, this form is divided
into two parts: PART A is for use by persons serving on local boards (municipal, county, special tax districts, etc.), while PART B is
prescribed for all other boards, i.e., those at the state level.
PART C of the form contains instructions as to when and where this form must be riled.
PART A
VOTING CONFLICT DISCLOSURE FOR LOCAL PUBLIC OFFICERS
[Required by Section 112.3143(3), Florida Statutes (Supp. 1984).]
The Code of Ethics for Public Officers and Employees PROHIBITS each municipal, county, and other local public officer FROM
VOTING in an official capacity upon any measure which inures to his special private gain. Each local officer also is prohibited from
knowingly voting in his official capacity upon any measure which inures to the special gain of any principal (other than a government
agency as defined in Section 112.312(2), Florida Statutes) by whom he is retained.
In any such case a local public officer must disclose the conflict:
(a) PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of his interest in the matter on which he is
abstaining from voting; and
(b) WITHIN IS DAYS AFTER THE VOTE OCCURS by describing the nature of his interest as a public record in this part below.
NOTE: Commissioners of a Community Redevelopment Agency created or designated pursuant to Section 163.356 or Section 163.357,
Florida Statutes (Supp. 1984), or officers of independent special tax districts elected on a one -acre, one -vote basis are not prohibited from
voting. In such cases, however, the oral and written disclosure of this part must be made.
1, the undersigned local public officer, hereby disclose that on , 19 .
(a) 1 abstained from voting on a matter which (check one):
inured to my special private gain; or
inured to the special gain of
CE FORM 4- REV 1044
, by whom I am retained.
/nOo PAGEI
PAGE 2
(b) The measure on which I abstained and the nature of my interest in the measure is as follows:
M-85-1096 which deals with Victor de Yurre's residenc}-.
i
11/27/85
r
Date Filed Signatute
Please see PART C for instructions on when and where to file this form.
PART B
VOTING CONFLICT DISCLOSURE FOR STATE OFFICERS
[Requtr-d b;• Secyion 112.3143(2), Florida Statutes (Supp. 1984).]
Each stave public officer is permitted to vote in his official capacity on any matter. However, any state officer who votes in his official
capacity upon any measure which inures to his special private gain or the special gain of any principal by whom he is retained is required
to disclose the nature of his interest as a public record in Part B below within 15 days after the vote occurs.
1, the undersigned officer of a state agency, hereby disclose that on
(a) 1 voted on a matter which (check one):
19 .
inured to my special private gain; or
inured to the special gain of , by whom 1 am retained.
(b) The measure on which 1 voted and the nature of my interest in the measure is as follows:
Date Filed
Signature
Please see PART C below for instructions on when and where to file this form.
PART C
FILING INSTRUCTIONS
This memorandum must be filed within fifteen (15) days following the meeting during which the voting conflict occurred with the person
responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the meeting minutes. This form need not
be filed merely to indicate the absence of a voting conflict.
NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES# 112.317(1983). A FAILURE TO MAKE ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY
BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT. REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT,
DEMOTION. REDUCTION IN SALARY. REPRIMAND. OR A CIVIL PENALTY NOT TO EXCEED 55.000.
�.CE FORM 4. REj-JQ;fij W_W_ __. _ ____._ .._ _.-__.... �._ . _..._._.__... PAGE 2
L! ! �' J\�� Ur)L Ich
i �7 uu'
October 25, 1985
Mr. Nicholas A. Sakhnovsky
2712 S.W. 34th Street, #106
Miami, Florida 33145
Dear Mr. Sakhnovsky:
As requested by you, stated hereinbelow please find the text of
M-85-1096 passed by the City Commission at its meeting of October
24th in connection with the questions raised by you regarding
Victor de Yurre's residency.
Motion 85-1096
A MOTION OF THE CITY OF MIAMI COMMISSION STATING THAT
THEY HAVE HEARD THE ALLEGATIONS MADE BY MR. NICHOLAS
SAKHNOVSKY (CANDIDATE IN GROUP V) REGARDING LEGAL
RESIDENCY OF VICTOR DE YURRE (CANDIDATE IN GROUP V)
AND FIND NO VALIDITY IN SAID ALLEGATIONS AT THIS
TIME; FURTHER STATING THAT THEY WILL AGAIN LOOK AT
ANY EVIDENCE THAT MAY BE PRESENTED TO THIS COMMISSION
AT THEIR MEETING OF NOVEMBER 13, 1985.
If we can be of further assistance, please do not hesitate to
call.
Vey truly yours,
Wtty Hirai
City Clerk
0f:t,juer 2a, 1 a ,
To: Ms. Matty Hirai, City Clerk
From: Nick Sakhnovsky, per request of she Co%missioii
I hereby submit this affidavit for 1.ran-•mittal to the Coc:.mission
t oday, per the request )f the r,?yur in ::ub.ic meeting this ::iorning:
1. According to record; urt file for pablic inspection at the D.-Ide County
Property Appraiser's office, Bcatriz J. De Yurre, wife of Victor De
Yurre, owns the property an: name at 420 Sarto in Coral Gables.
She received homestead exemption on the property for 1984 and 19:35;
the property was obtainea in 1963.
2. Victor De Yurre was, on January 1, 1985, registered to vote at 519
NW 13 Ave., Apt. 1, in N;iami. According to residents of the same
apartment building, this is the home of Victor De Yurre's father --
not Victor De Yurre, nor his wife.
3. Victor De Yurre has never been available, nor sleeps, nor resides,
at 519 NW 13 Ave., Miami. The secretary to Victor De Yurre has told
me that he is happily married to his wife. If, then, he is sleeping with
his wife, he is not residing at 519 NW 13 Ave. in the City of Miair,i.
4• Section four of the Charter states that commissioners must have the
same qualifications as electors. This doelaot mean merely that they
hold voter registration cards as your literature for prospective candidates
states. It means, rather, that they be bona fide residents. Victor
s
De Yurre is not a bona fide resident of the City of i•fiami.
5. I hereby request transmittal of this affidavit to the co:rmission today,
per their instructions.
Nicholas A. Sakhnovsky
Attachment: Copy of property appraiser's record for 420 Sarto, Coral Gables.
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PA
INIE.FR-OFFICA MEMORANDual
" Matt Hi
y p*-i October_ 24, 1985
City Cle m
Residency of a candidate
for City Commission
Lucia A.�ougherty
City Attorney
You have presented us with the attached challenge of the
candidacy of Victor DeYurre in the forthcominq municipal
election. In connection therewith you have asked what
constitutes residency for purposes of a candidate for City
Commission and what is the extent of your authority in connection
with such challenge.
The City of Miami Code Sec. 16-17(a) require-, a six month
residency immediately prior to the election. Subsection (b)
requires the candidate to sign a form which declares in Paraqraph
3 that•
T presently reside at the folInwing
address- which is my legal
address, and I have resided continually at
said address from the day of
to the day of.
Pursuant to the case law consulted, copies of which are
attached, once a candidate has properly completed the above
declaration, the burden of proving non -residency shifts to a
challenger.
Florida courts have consistently held that domicile or
residency, depending on the proceeding, is a matter of subjective
intent: that one's residence is where he says it is, until
proven otherwise. A legal residence is the place where a person
has fixed an abode with the present intention of making it their
permanent home.
Some objective indicia of residency are: voter
registration, homestead exemption, driver's license address, or
notification to the Florida Department of Motor Vehicles of any
changes, address on checks used for personal checking, receipt of
personal mail. All of these items can be rebutted by the
candidate.
0
2
The Charter of the City of Miami provides that the
Commission shall be the judge of its election and Sect. 16--17 of
the City Code provides that -
In the event the commission finds that any
candidate for the office of mayor or
commissioner does not meet the qualifications
of an elector as required under the charter
of the city or of this section, the
commission may adopt a resolution so finding
and directing the city clerk to refrain from
placing the name of the candidate for mayor
or commissioner, as the case may be, on the
ensuing ballot for such office. to the event
the name of the candidate has already been
placed on the ballot, then the clerk shall be
instructed to take the necessary action to
either remove the name from the ballot or
lock the key for that particular candidate in
order that the electorate shall not be
permitted to vote on an unqualified candidate
for the office of mayor or commissioner_.
Nothing herein contained shall prohibit the
candidate who is found to be unqualified for
the office of mayor or commissioner from
appealing the decision of the commission to a
court of appropriate jurisdiction.
Hence it is the opinion of this office that you should refer
this matter to the City Commission together with the results of
your investigation or recommendation to make its own findings in
this matter.
LAD/GC/wpe/mgh/ab/B127
8 . -.1006
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WALKER v. HARRIS Fla. 955
Che"1FU Apq„ sM sold OU
LETTS, Chief Judge. dence in east borough and was therefore
Reversed. Constructive possession has
not been shown. See Daudt v. State, 368
Sold 52 (Fla. 2d DCA 1979), cert. denied
376 So.2d 76 (F1a.1979).
DOWNEY and MOORE, JJ., concur.
w '
o Srtr Vatosls
✓ Dorothy WALKER,
Appellant/Cross-Appellee,
V.
Kenneth W. HARRIS, and City Commis•
sion of the City of Belie Glade, Florida,
sitting as Canvassing Board for the City
of Belie Glade, Florida. Appellees/Cross.
4 nnPllant.5.
No. SO-106.
District Court of Appeal of Florida,
Fourth District.
May 13, 1981.
Rehearing Denied June 19, 1981.
Woman appealed from finding of the
Circuit Court, Palm Beach County, W. C.
Williams, 111, J., that woman had failed to
establish legal residence in east borough of
city and was therefore unqualified for elec-
tion to the city commission. The District
Court of Appeal, Hurley, J., held that: (1)
trial court findings that rent had not been
paid for first rental period and that woman
used house only as mail drop were not sup-
ported by substantial evidence, and (2) trial
court findings that first rental check intro-
duced into evidence was dated after end of
first rental period, that woman utilized
joint checking account with her mother, and
that woman failed to notify Department of
Motor Vehicles of her change of address did
not constitute substantial evidence suffi-
cient to justify court's ultimate conclusions
that woman failed to establish legal resi-
unqualified for election to city commission.
Reversed.
1. Elections *-126(4)
Where both landlord and tenant testi-
fied that rent had been paid, that tenant
moved her possessions onto premises, enter-
tained friends there, and regularly slept
there, and there was no testimony to negate
or contradict such testimony, trial court's
findings in proceeding to challenge tenant's
qualification for election to city commission
based on alleged failure to establish legal
residency that tenant had not paid rent and
used landlord's house only as mail drop
were void for lack of evidentiary support.
2. Domicile 4-1
"Legal residence," or "domicile," is
place where person has fixed abode with
present intention of making it their perma.
nent home.
See publication Words and Phrases
for other judicial constructions and
definitions.
3. Elections *-126(4)
Where tenant moved to east borough
for sole purpose of establishing legal resi-
dence to qualify for election, notified bank
and Post Office of her new address, was
student who had resided with her mother
prior to moving, and landlord knew tenant
was student and late payments were ac.
ceptable to him, trial court findings that
first rental check was dated after end of
first rental period, tenant utilized joint
checking account with her mother, and ten-
ant failed to notify Department of Motor
Vehicles of her change of address did not
constitute evidence sufficient to justify con-
clusion that tenant failed to establish legal
residence in east borough and was unquali-
fied for election to city commission.
Tobias Simon of Simon, Schindler &
Tripp, P. A., Miami, for appellant/cross-ap-
pellee.
r-10gk)
956 Fla. 398 SOUTHERN REPORTER, 2d SERIES
,Montgomery, Lytai, heiter, Denney & Se-
arcy, P. A., and Edna L. Caruso, West Palm
Beach, for appellee Harris.
HURLEY, Judge.
The issue on appeal is whether the trial
court's finding that appellant failed to es-
tablish a legal residence in the east borough
of the City of Belle Glade and therefore
was unqualified for election to the city com-
mission is supported by substantial compe-
tent evidence. Our re%iew of the record
reveals an insufficiency of supporting evi-
dence and, consequently, we reverse.
The City of Belle Glade is divided into
three boroughs. Section 6-15 of the city
charter specifies:
Of the five City Commissioners; one shall
own property and reside in the North
Borough; one shall own property and re-
side in the East Borough; one shall own
property and reside in the West Borough;
and two shall own property and re4ide
anywhere in the City. All qualified
electors of the City may vote for any
candidate for City Commissioner.)
Appellant, Dorothy Walker, filed for elec-
tion to the Belle Glade city commission and
indicated that sne was a resident of the east
borough. She was elected to the commis-
sion on September 11, 1979. Shortly there-
after, Kenneth W. Harris, the defeated in-
cumbent, instituted suit to oust Ms. Walker
and declare the election null and void. Mr.
Harris contended that the election was
fraught with campaign financing violations
and that Ms. Walker was unqualified for
election in that she was not a bona fide
resident of the east borough.
The case was tried before the court and
resulted in a finding that the alleged cam-
paign financing violations were insubstan-
tial and without legal consequence. The
court further found that Ms. Walker was
not a bona fide resident of the east borough
and therefore, since she failed to satisfy an
essential qualification for office, the court
declared the election null and void and or-
1. Trial counsel stipulated that the property
ownership requirements have been stricken.
Thus, the ordinance. only requires that three of
dered a new election for the east borough
seat. A stay was entered and this appeal
ensued.
The court made the following findings of
fact on the issue of residency.
The defendant Dorothy Walker is a black
female currently enrolled in her third
year of taw school at the Univer_ity of
Miami College of Law. Ms. Walker, who
retained a residence at her mother's
house in Belle Glade during the first two
years of law school, decided in the sum-
mer of 1979 to run for the East Borough
Commission Seat in Belle Glade and, to
that end, moved from her mother's house
to an apartment located within the East
Borough.
Shortly after moving to this apartment,
however, the building in which the apart-
ment was housed was condemned, and
Ms. Walker moved again. On August 7,
1979, she entered into a written form
lease with Mr. Velasco to rent a bedroom
in his home located at 349 Southeast 3rd
Street, with use of all facilities therein,
for $100.00 per month. The blanks of the
lease appear to the Court to have been
filled in with the defendant Walker's
handwriting. On September b, 1979,
Walker submitted a change of address
form to the post office and fir. Velasco
testified that she does receive mail at his
house.
Mr. Velasco also testified, however, that
he never received rental payment from
the defendant Walker for the month of
August and that the first check he re-
ceived was dated September 19, 1979,
which was two days after this cause of
action was riled. The Court notes that
this check was on a joint account with
Ms. Walker's mother and that the address
printed on the check is that of defendant
Walker's mother, which is in the West
Borough.
The Court finds that the defendant Doro-
thy Walker was a legal intern in the
State Attorney's Office at the Belle
the five city commissioners reside in specified
districts or boroughs.
Glade Anne
duties entail
meanor cast
Upon questi,
Pendant Wa'
not complie
§ 322.19, Flo
that:
Whenever
for or rece
feur's licer
dress nam,
+ the license
name of a
t riage or c
' within 10
1 departmen
new name
license.
The address
license is the
in the West
finds that
Walker may
sonai belong
East Boroug
dence, and i
mail drop in
Belle Glade
ough.
Analyzing th
f five factual d<
t support the col
to establish a b
borough: (1)
349 Southeast
he never recei•.
` month of Aug,
f check introduc.
September 19t'
suit was filed:
joint checking
the checks bore
mother's addre
Ms. Walker fa
partment of m,
address; and (:
at 349 Southv:
more than a "r
2. This address
}
WALKER v, HARRIS
Cho W MAW.. !M 50-u fas'
U,d L iu,;u„ i�, and that her
duties entailed the prosecution of misde-
meanor cases and traffic infractions.
Upon questioning by the Court the de-
fendant Walker admitted that she had
not complied with the provisions of
§ 322.19, Florida Statutes, which requires
that:
Whenever any person, after applying
for or receiving an op4rator's or chauf-
feur's license, shall move from the ad-
dress named in such application, or in
the license issued to him, or when the
name of a licensee is changed by mar-
riage or otherwise, such person shall
10
r1a. 957
Before appraising the sufficiency and le-
gal effect of these findings, we wish to
emphasize that an appellate court may not
substitute its judgment for that of the trier
of fact by reevaluating the evidence. Mar-
shall v. Johnson, 392 So.2d 249 (F1a.1980).
Our role is property limited. "Findings of
fact by a trial judge are presumed to be
correct and are entitled to the same weight
as a jury verdict. Findings by a trial court
will not be disturbed unless there is a lack
of substantial evidence to support the
court's conclusion." Strawgate v. Turner,
339 So.2d 1112, 1113 (Fia.1976) (citations
omitted).
within 10 days thereafter notify the
department in writing of his old and
new names, and of the number of his
license.
The address on Ms. Walker's driver's
license is the same as that of her mother
in the West Borough. The Court further
finds that even though the defendant
Walker may have had some of her per-
sonal belongings at the address in the
East Borough, it was not her legal resi-
dence, and it was nothing more than a
mail drop in an effort to comply with the
nnc;Arn L- ronlAirements of the Charter of
Belle Glade for election to the East Bor-
ough.
Analyzing the trial court's order, we find
five factual determinations which tend to
support the conclusion that appellant failed
to establish a bona fide residence in the east
borough: (1) 'sir. Velasco, the landlord at
349 Southeast Third Street.2 testified that
he never received a rental payment for the
month of August, 1979; (2) the first rent
check introduced into evidence was dated
September 19th, 1979, two days after the
suit was filed; (3) Ms. Walker utilized a
joint checking account with her mother and
the checks bore a printed inscription of the
mother's address in the west borough; (4)
Ms. Walker failed to notify the state de-
partment of motor vehicles of her change of
address; and (5) Ms. Walker used the house
at 349 Southeast Third Street as nothing
more than a "mail drop."
2. This address is in the east borough.
[1] Turning to the record, we find that
two of the trial court's findings lack any
support whatsoever. Mr. Velasco, the land-
lord, never testified that he had not re-
ceived the August rent. On the contrary,
both Mr. Velasco and Ms. Walker testified
unequivocally that the rent had been paid.
No evidence was offered to negate their
testimony and so, the court's contrary con-
clusion is without support in the record.
The same holds true for the court's finding
that Ms. Walker used the home at 349
Southeast Third Street a
than a mail drop. Ms. Walker and Mr.
Velasco testified that appellant moved her
possessions onto the premises, entertained
friends there, and regularly slept there.
Again, this testimony was uncontradicted
and, consequently, the court's first and fifth
findings are void for lack of evidentiary
support. Thus, we are left with three find-
ings and the question is whether they are
supported in the record and, if so, whether
they constitute substantial evidence to jus-
tify the court's conclusion that appellant
failed to establish a bona fide legal resi-
dence in the east borough.
Before considering the three remaining
findings, we turn to the concept of "domi-
cile" or "legal residence" and its usual mode
of proof. In Herron v. Passailaigue, 92 Fla.
818, 110 So. 539, 543 (1926), the court stat-
ed:
4 0
3
9," Fla. 398 SOUTHERN REPORTER, 2d SERIES
The rule is well settled that the terms
"residence," "residing," or equivalent
terms, when used in statutes, or actions,
or suits relating to taxation, right of suf-
frage, divorce, limitations of actions, and
the like, are used in the sense of "legal
residence"; that is to say, the place of
domicile or permanent abode, as distin-
guished from temporary residence.
(2) A person may have several tempo-
rary local residences, but can hgve nnl y one
legal residence. A legal residence, or dom►-
cile, is the place where a person has fixed
an abode with the present intention of mak-
ing it their permanent home. Minick v.
Inlc , , .o. 3 119331 In
Bloomfield v. City- of St, Petersburg Beach,
82 So.2d 364 (F1a.1955), a case strikingly
similar to the one at bar, the court held:
Mhere a good faith intention is coupled
with an actual removal evidenced by posi-
tive overt acts, then the change of resi-
dence is accomplished and becomes effec-
tive. This is so because legal residence
consists of the concurrence of both fact
and intention. The bona fides of tht.
intention is a highly significant factor,
1,+ at .12Rf.
Furthermore, our courts have consistently
recognized that an individual's intent is a
,subjective factor and, therefore, "the best
proof of one's domicile is where he says it
is. Ogden v. Ogden, 159 Fla. 604. 33 So.2d
870, 873 (1947). See also, Brown v, Brown,
i 123 So.2d 382 (Fla.2d DCA 1960). This is
i not to suggest that proof of legal residence
cannot be measured by objective factors,
but in analyzing proof of intent, a person's
2 declaration is especially significant and en-
titled to great weight.
(31 In the case at bar, Ms. Walker re-
peatedly testified that she moved to the
east borough for the sole purpose of estab-
lishing a legal residence to qualify for elec-
tion. She testified that she was aware of
leased and moved into a home in the east
borough which was in bad repair; (2) she
spoke to a contractor and to the utilities
company about making the first home hab.
itable, but gave up when it was condemned;
(3) she located the Velasco home at 349
Southeast Third Street, signed a lease,
moved in and took up residence; (4) she
notified the bank and the post office of her
new address. Again, we note that the fore-
going testimony was uncontradicted.
To corroborate her testimony, appellant
called her landlord and the postmaster as
witnesses. Mr. Velasco, the landlord, testi-
fied that on August 7, 1979, he signed a
lease and agreed to rent a portion of his
home to appellant for one hundred dollars
per month. Rent was due on the last day
of each rental period. He further testified
that appellant moved into the premises and
thereafter entertained friends and regular-
ly slept there. Mr. Donald Sivyer, the post-
master in Belle Glade, produced a change of
address card which appellant had filed on
September 6. 1979, and which reflected her
new address at 349 Southeast Third Street
in Belle Glade. As with the earlier testimo-
ny, this evidence was uncontradicted.
Turning again to the remaining three
findings in the trial court's order --{a) the
f
first rental check introduced into evidence
was dated September 19, 1979; (b) Ms.
Walker utilized a joint checking account
i
with her mother: and (r) Ms Walker failed
to notify the department of motor vehicles
of her change of address —we hold that
they are so patently inconclusive that, ei-
ther individually or cumulatively, they do
not constitute "substantial evidence" suffi-
cient to overturn or rebut the uncontradict-
,rf
ed testimony and evidence t ai appellant
�N
to
intended _to establish a legal residence in
the east and took overt steps to
accomplish this end. Appellant admitted
her failure to notify the department of mo-
sider in weighi
residence. Ye
unrefuted that
bank and the b
new address.
her failure to
of motor vehici
for the use of a
checks bearing
mother's west
testified that
with minimal f
ed with her me
east borough.
so, we find no
in this finding.
first rent checl
Velasco testifie
been paid, thou,
exact date. I
that, under the
due and payat
30-day period
have been Sept.
testified that I
full-time stude
were aceeptabl
lradlcled WnLit
had been paid,
tember 19th ch
Bearing in
"that the prim.
tion contest is
ple has been ef-
323 So.2d 259,
425 U.S. 967. P
(1976), and iu.
testimony of al
the unc:ontradi,
overt acts wh.
legal residence.
Glade, we are
trial court's re:
t
Section 6-15 of the City Charter and, de-
for vehicles, but testified that she was un-
ma ter of law,evidence soffit
spite an acute housing shortage in the east
aware of the requirement and that her
ultimate conclu
borough, she searched for a residence that
license, which had been issued several years
is reversed
would meet the charter's requirentents.
earlier, was about to expire. without ques-
Ms. Walker detailed the steps which she
tion, notification to authorities and to the
took to carry out her intent: (1) she located,
public at large is a relevant factor to con -
ANSTEAD, .
Associate Jud 6
1
10Jf>
• _ STATE v, PERRY Fla, 959
CNe as, Fta.App., $94 Sold 90
cider in weighing a disputed issue of legal
residence. Yet, in the case at bar, it is STATE of Florida, A pellant,
unrefuted that �ppellant notified a local
bank and the Belle Glade post office of her V.
new adds . Thus, the probative value of Rufus W. PERRY and arle Melvin
her failure to notify the state department Seitz, Appelle s.
of motor vehicles is severely undercut. As
for the use of a joint checking account with No, W971
checks bearing a prihted inscription of her
mother's west borough address, appellant District Court of Appe�I of Florida,
testified that she wits a full-time student Fourth District.
with minimal funds and that she had resid- May 13, 1991.
ed with her mother prior to moving to the Rehearing Denied June 18, 1981.
east borough. This was uncontradicted and
so, we find no probative value whatsoever
• in this finding. Lastly, as to the date of the
first rent check, both Ms. Walker and Mr. The State appealed from an order of
Velasco testified that the August rent had the Circuit Court, Brow•ard County, Mel
en paid, though neither was sure as to the Grossman, J., granting defendants' motion
exact date. Furthermore, they testified to suppress marijuana seized without search
that, under the rental agreement, rent was warrant by police when defendants were
a due and payable on the last day of the arrested without arrest warrant in one de-
30-day period which, in this case, would fendant's residence. The District Court of
have been September 6th. Mr. Velasco also Appeal, Downey, J., held that: (1) by de -
testified that he knew Ms. Walker was a fendants' invitation of undercover police of -
full -time student and that late payments ficer into one defendant's residence to
were acceptable to him. With the uncon- transact unlawful business, they surren-
:: testimony that Lhe August rent dered, or waived, their right of privacy in -
had been paid, the significance of the Sep- sofar as residence was concerned and inso-
tember 19th check is dubious at best. far as constitutional protection was con.
Bearing in mind the general principle
"that the primary consideration in an elec-
tion contest is whether the will of the peo-
ple has been effected," Boardman v. &teva,
323 So.2d 259, 269 (F1a.1975), cert. denied,
425 U.S. 967, 96 S.Ct. 2162, 48 L.Ed.2d 791
(1976), and looking at the uncontradicted
testimony of appellant's intent coupled with
j the uncontradicted evidence of the multiple
overt acts which she took to establish a
legal reside -nee in the east borough of Belle
Glade, we are compelled to hold that the
trial court's remaining three findings, as a
matter of law, do not constitute substantial
evidence sufficient to justify the court's
ultimate conclusion. Accordingly, the cause
is reversed.
ANSTEAD, J. and WARREN, LAMAR,
Associate Judge, concur.
cerned, residence was tantamount to public
place, and (2) through undercover police
officer's prearranged signalling, arresting
officers had probable cause to believe felo-
ny was being committed in one defendant's
residence and persons inside residence,
which at time of questioning had become, in
effect, public place, could be arrested with-
out warrant and marijuana found therein
seized.
Reversed and remanded with di-
rections.
1. Searches and Seizures *-7(27)
By defendants' invitation of undercov-
er police officer to one defendant's resi-
dence to transact unlawful business, de-
fendants surrendered, or waived, their right
of privacy insofar as residence was con-
Sr- W j-U9b
382 Fla. 123 su HERN REPORTER, 2d SERIES
,,•,r.;; ... ...- t, ,i,e dfceased wife.
Upon •::c co:is:ut•ration we hold that the
counterclaim goes not show as a matter of
1:i•,t• tl-at the relief prayed for therein is
barred on the theory of waiver by acquies-
cence. If su\h ,"ue is m:,,1e by the defenses
1.rrtafttr uttcrpvsed by the counttr defend-
ant, such issues must be res)lved by the
trial curt up on the proof adduced by the
parties on the trial of the eause.
1We have ct-rcidered the drnss-as- ,nment
of err,-r filt,l l,y appOlve and argued in his
b-: f, ° :it fi::d it to be without substantial
m<
1:•.... :-1.
and CARROLL, DONALD,
i 1 r. ...
p M N4�'QJ stsr(t
it dellne BROWN, Appellant,
W. Norman BROWN, Appellee.
No. 1744.
U:-tri;•r C ••;rt of Appeal o1 Florida.
Second M-trict.
Sept. 30, 1%0.
Act:.:-, t•y wife for divorce. The Cir-
,:,.., t ,,•.:rt, Frotv:trd County, James H.
1., d:,niis_ed complaint and �%iie
The District Court of Appeal,
51::,nn: n,, T., held that where husband and
v.-ere res:dents of Maryland, husband
in F6r::ary, 1959, went to Florida with
t:: erstanding that his wife should remain
1whind intending to go to Florida as soon
as the:r son had completed his school year,
and .rife joined husband in Florida in
June, although domicile of wife shifted
v,;th her hu=band and she became domi-
c:'.::- of Fior:da, inasmuch as wife had
been in Florida for only four months wheti
she commenced action for divorce, wife did
not meet six-month residence requirements
of Florida statutes and complaint was prop-
erly d:sm:s-cd.
Affirmed.
1. Domlclle 0-1
"Domicile" invnlvcs intent of indi-
vidual and "residence" is a matter of ob-
jective fact.
Spe puhlioation Words and Phrases,
for other judicial eonstrnetions and defi-
nitiotim of "Domicile" and "B, sidence".
2. Divorce C=62(2)
Where husband and wife were rsi-
dt.nts of Maryland, husband in Februar}•.
19: J, went to Florida with understanding -
that his wife should remain behind intend-
ing to gn to Florida as soon as their son
had cor,.,1lcted his school year and taife
joined husband in Florida in June, although
dom:ci!e of wife shifted with her husba^,J
ar d she became domiciliary of Florida, in-
asmuch as wife had been in Florida for
onit four months when she commenced
action for divorce, wife c: nut
morah residence requireme•:its of Florida
s,,n-utes and complaint was properly di�-
m:s,td. F.S.A. § 65.02.
T-)se A. Gonzalez, Jr., of Watson, Iiu`�ert
S Souat•y, Ford LatiderJale, for
Iar;t.
No appearance for appellee.
SHANNON, Judge.
This is an appeal by the appellant, the
plaintiff below, from a final decree in a
divorce action, where the complaint was
dismissed without prejudice on the ground
that the wife did not meet the residence
requirements of F1a.Stat. § 65.02, F.S.A.
The husband and wife mere formt•rly
residents of Maryland. In February, 1959,
96
the 11Wl),' :,J can
derstanding tt it!
remain behm,! ,;,
and i�in hire ;a .
r-ILtt•d his
to Florida ar d j,
After site
to a disaurecmr•
tllfc stung for d;
the cause can:,.
final decree, ex :
chancellor t:t;.t t
IC State of i! r;
.rJ not mr:t the r
he hloriti.r
Vic•\i,! .ct r
t,! tun ;t J:t•,,rcc
ft;n•c its:�r,•1 >:x
before the F::c,
Fla;nt, but chi,:l ,
divorce f;,,! pr:,-
tiWe are u:•r,blr
t�tion has
:nc Court,
tttc•tn the juri:.?:r•
a:i, w a coot of
c;tsc, and the rr.i,!r:
n oaths, ;th:rh the
is dc.. tc le.
these tern,, r,;a; c :
t rr, in the cr.se at
fcrcnce becomes im;
rn li Am.Jur., Div(
12q--2.
utory "lf-uiting P,
the power to conic-
res or marriagr ;,•;
of grantin` a
intportar,t fact.,. -
domicil r,thc:r
residence, ine
the granting of a
3
t •� F
yV '4
w den
fe did
anents
prop-
indi-
t ob-
trsi-
:ar�
•t.it:t�
tend -
Son
wife
tnugh
'tanti
for
"1.
t six-
th e
in a
was
round
!once
r.tcrly
1);q.
BROWN V. BROWN
Cite its, FIL.1= So._d 3S4
the husband came to Florida with the un-
&r,tanding with Otis wife that she would
remain behind intending to co:ne to Florida
and join him as soon as their son had co n-
14ted his school year. She actt:ally c:.me
to Fiorida and joined her huc',ancl in June.
.lfttr she c:tine to Florida the parties came
to a di,agrecment which resulted in the
ttlfc stung for divorce in Octuber. Whcn
the e;disc came before the chancellor for
final decree, ex p:frte, it was held by the
ch,nccilor that the wife having been in
t'.:c State of Florida for only four months,
t!:d :tot mcct the residettc,: rcr;uirements of
tht i'lo: ida sutttttes.
::c�i'.tncc required. —In orrlcr to
'ta:tt a divt.rcc the eom; l;tit:ant must
h.o r rt sah l six months i;t the st.ttc
l t fore the filir,l,; cf the bi!1 of c ::I -
;'lit. but shall lit t Ycct ant st.i! f
d:•.orce f;lt,! prior to Oct�,bt•r 1, lr:.
t.'.. a. t U:i:,! ie 10 find that -"'is t 7:"1
y; -tion has 1,ccn before t!te F!or.t!a `u-
Court, a:tht n:h thtre are m;:Lt•
been an-
Ttch:ucally, thtrc is a ci>tinct;rn bt•-
t.tttn the jurisdictiom rcqui-,CrnC its, %%1 :clt
a court of equity to decide a divv:c.
caa•, and the residence requirement of six
alas, which the Legislature has .rip o<( '.
>t.!cace" in a divorce case undoul)ttdly
fits "&micile." In a general seise,
,t-c arms may be interchangeable. Hn%%-
tter, ir, the case at bar the technical dif-
fcrence becomes important, as pointed out
In li Am.Jur., Divorce, § 2S2:
"§ 2S2. Length of Residence; Stat-
utory "ll'aiting Period." —In so far as
the power to confer jurisdiction of the
res or marriage status for the purpose
of granting a divorce is concerned, the
important factr r is the existence of a
domicil rather than the length of the
residence. The state may authorize
the ;'ranting of a divorce if the p!ain-
I
Fla. 383
tiff has estnl,h,hcd a domicil within
the state cvcii for a day. On the other
hnrr!, the states have the pots:er to su-
permipose ttp,••n the fact of dn:r.�c:I or
residence within the state a rtgwrc-
mcl:t th;.t the (! )-micil or reslt!cr,ce con-
tinue for a eertam period of t:me as
a pmrcgaisite to a divorce; and the
lcgi,latures have exercise,] ti•ir poi•:er
by prc�crilhin;, a "waiting per. , i" of
fr,-)tn 6 wccl s to 5 years. The rt,ttu-
tory period of residence must ordi-
narily ehtpse prior to the commence-
mcnt of the action, in order for the
plaintiff to obtain a decree of divorce.
r r s It
t'. t tl,. • •x niwlth- residence requirttnt•nt
in:i- bt• Florida Statute, § 65.02, F.S.A.
at:•'.> an a(hlttwn-d phase to "domict!e."
(1] Pcrha the clearest %%ay to point
ihI tim:,;un is by the pr�uf
t" ::':I taco item. Ti:_ dl,lmi-
c:1, ir.t .. t s ,: c i:,:t!:t of an
Thc rn•ridcncc is a matter of obi^eti:c Lct.
Ml:aiy stater have v. • '. 1 •' ^:. • . -
t!:.a a div%-,cc p:a:.::;f must have
tinn a-1y resid.,V for a specific period of
t;,.:t '.t:t.r_ bcinq ,::;:;wed to br:n; st:it.
This i- true in Ar;zc. a, Connecticut, Ne-
�a!a North Carolina, Ohio and Vir i:.ia,
and pussihly other fur isdictioni. Tt pical
of the holdings %%here a state ha i a "con-
t:::,. -...: rt i !cc. ty;,e Of st:ttut_ i$ CAM t-
han v. Carnah;:n. 79 Ariz. 371, '`';) P.-'A
A.L.I:?t} tehtrc the court
said in part:
"This rourt with unanimity 1:a; c,m-
sistently held -
"'Linder the statute, it is af,-Jot
essential before a person may lag;nil
file a complaint for a divorce that he
,hall have been an actual b-ma tide
resident of the state for one year and
of the county six months. • ' •' "
According to the Supreme Court of Missis-
sippi, this is also valid in Florida. In the
full faith and cred:t case of A:::;:::t v.
S . 10 6
r
s
Aft
�.
384 Fla. 123 SOUTHERN REPORTER, 2d SERIES
Anglin, 1951, 211 :Miss. 445, 51 So.2d 781,
the husband and wife lived in Mississippi.
it'hen they separated, the husband went to
Florida, and, having met the jurisdictional
requirements, he subsequently obtained a di-
vorce in this state. The wife sued for di-
vorce in Mississippi and the husband raised
iris Florida decree as a bar to that action.
:after investigating the jurisdiction of the
F!,+rids court, the Supreme Court of Nirs-
!.i -ippi gave full faith and cjedit to our
dtctee, sa%inh at I:ta' 76' of M So.2d:
Bona fide residt rice in
Fiori•la by a cr,mplainant in a divorce
action for a ptrl"ti of ninety days next
prnct lit, the tiling of suit %%a5, un !.r
the law• of that state, a statutor, pre-
n.q!rtsitc to jur:-diction, and appellee's
;!:at he had betn a bona fide
,k-ident of On.n4t: County, Florida,
for rnt,re than ii:ncty days next pre -
of his bill. • ♦ • "
[2) In t! ;:t-.r.t case the gtte-lion we
ha\e is—D_c the maxiin that a wife's
::cile is that of her hu:band's establ:sh
c,n-tr+lc:I\e residence tin, er Florida "-:at-
, � ' ' fi 7 .\ '- The foibo%sine factors
apl ra r to :,t• ..:l .:Ant :
1. 711' ,,.::`: 77 a, -plies to dou•icite, and
as ., -td :11, �\ c. dt-:tlieile and rc" erice are
technicaiiv „
2. There : :,t, quc>tion th.:t trte maxim
a,.1 lies to _.,.., the domicile an,l that the
:C 1 .. .....:r of Flora !e ..I -en
raise_ tic- q:: n as to the nsid:nt re-
q:...rre:.,_ of t),ur statute.
3. Our r:rte Court has expressly
: ... ;, ac dial rt -nee is required for
dive-rcc acu•.,n. Sie Campbell v. Camp-
?•' F1a.195:, 57 So.2d 34.
4. Our Supreme Court has also cqu:ttcd
t:'.t: terms "domicile" and "residence" in
Hvr-on v. Passailaigue, 92 Fla. 818, 110 So.
:3 a.
There are a great many cases d•_cic;cl at
tri .; court level and \\hick are not reported
'.\ ^t ar,'1 the actual o!,inions
are not available to us. However, in an
annotation in 39 A.L.R. 719, the foliowing
cases are reported to hold that the maxim
of a wife's domicile being the saute as her
husband's does not suffice to satisfy the
statutory time requirements: Starr v. Starr,
78 Pa.Super. 579; Schonwald v. Schon-
wald, 55 N,C. 367, and Dutcher v. Dutcher,
39 Wis. 651. A directly contrary result,
how(.ver, can reportedly be found in Ash-
baugh v. Ashbaugh, 17 I11.476, and Kashaw
v. Kashaw, 3 Cal. 312.
The question of a married woman's domi-
cile arises in many contexts other than di-
vorce. The solutions in these areas have
been helpful by way of analogy in deter-
mining the question in the present case.
]n 'Minick v. Minick-, 1933, 111 Fla. 4(.t,,
14') So. 453, 487, the I'lorida Supr, r.•c
Court passed upon the validity of construc-
tive ervice in a divorce action where a wife
had dr>crted her husband in Florida. ]u
tice Brown, in writing h>> opinion for the
Court, says in part:
"I'crhai- rite interpretation of no
words u,t.1 in legal phrasuo!ozy has
(-*Kell the COtirtS Of this ci,ttr.t'\' more
la',- and dif;iculty, and h:u resulted
in a greater variety of itl !,-:al opin-
ion, than the intcrpretati„ri of the
words 'djrtrlci,? and 'rrsidt r.; c.' Un-
doubtedly, much of the apparent va-
riety and inconsistency in the decisions
is due to the fact that the words 'resi-
dent' and 'Cl-1ut::iCC, attn d •,,nrt•salc:.t,'
as well as the word 'd,,mic:;e,' are evi-
dcn:'j' u-. l in a different sense in seine
statutes from that in which they are
used in other statutes relating to differ-
ent sul,jects. We will make no attempt
to review or reconcile the various deci-
sions on this subicct. Our own deci-
sw;ls appear to he fairly consistent as
to th•,se phases of the subject with
ash:cat we have had to deal taus far in
this juri,dretion.
This thou lit is illustrn:ed
by the present ca=e. Ttci:nii.tlly, the
domicile of the de i,
nutted to l,t, M 11:C c\
of the ilurl,a,."!. 1,.It h.,
in the nte;uti::� „f tr:: '
iCr 5t;itii;t•, mtj:t•t ..
> n:h „thcr 1 LtCc, a
bili. • ; "
]n the rield of
of Vircima v. Rutlttrf
514, ItO S.E. Oil". cut A
tout b.,f-'re the court \\
tht :-t.ttc of Virc:::ia
ddncy tax on the s+.,
W."Illan. sole!\• +:.I the t:
married a Vrr_t :i t r.:a
tt:t� t!icrrf-,re li, ! + Ir-.
rlagl: the \'.:fc 11,01 bu.
ltdv fork ns;dtnt W111
slid r, :a:ntr..1 t,, 1.:,\
Thar. t•.a, no fr:ct:,..,
al:. and the v.lie
fr+ rrl dale Vlrgirl:.t ta-• t
of --,air rc-rltr,cc. }t:
for the wifc at:l ir!tlC•
to) a cormnon law tirt
\s"m:u1'- d,rtnn:;c shift
obi wurly contrary. it
that the rule
:Ili! tt'. :t'. .•l'
b. :r, t
be r:tb Ilia: a;t to
ata::ir5, there
that the %%ifc
c:tt 1"nticil f-'r it. .
iur-ba:ram."
Titre .. an•,:'t.r r.
we have rile
till, \\•here a ,
a t::t:.it a ........
st:tie
will all ,. !h \.
_
30NES v. STATE Fla. 38�
Cite as, Fla., =3 So.2d 3t35
, in aft
,flowing
maxim
as her
.fy the
. Start,
Schon.
)utcher,
result,
.n Ash.
Ka.haw
;.c dtftndant wife con-
tn,trc1t to be, in the eye of the law, that
of the husband, but her residc::ce, with-
in the meaning of the constructive serv-
ice statute, might well hat a been at
some other place, as alleged in the
bill. * * * "
In ;hc field of taxation in Commotrtvealth
t,f VI ',::tia v. Rutherfootd, 1933, 160 \"a.
t_ 1. 1,0 S.E. 0, ), 90 A.L.R. 349, the ques-
ii.w i,, fore the coprt was whether or not
th. of Virginia could impose a resi-
d, ",:}• tax on the separate property of a
tt.-::i,in, solcly on the ground that she had
i:i;+ric,1 a Vir.inia man aril that Virginia
it.i, iht rtf�,rt. ht r home. Prior to the
mar -the ttife had been it %tell cs!ab'.ishcd
i, York residtnt and :after her marriace
a:mud to pay \etc Yorkta\L: .
1 h, rt• ttas no friction hctwccn the liusband,
a: ? ttifc ant: the wife claimed txcinlitiun
fr the Y:n;in.,t ,:,x on the gr a -ids of t,.:t
The Virt:nia court held
fir tl:t wift. ar.d criticized ri i,', adherence
t r ,::::::"n Lt:r fict(n that a married
trite >hl:, tthtn the file-!, are
i,n:•? contrary. In 011 A.L.R. ,;; , the
• • 11% this, hn•.rct•cr, is not
,.,i:, th.,t ,,a.r;ic that t':c L•;:-'.rand
uv111'cil Uf t?ic fast:?yl
! , ... :?'t 1, . r.cil (if t':c wife fol-
1 ,a> ..,.., , hu.'.,:an,l, tvi:l ii: time'
L. .. . , i oit that th.tt rule v. ill
to o,., liti-,ns to the
t':,:t ., tt ail be applied
ri the surruu:i `in; ci:curt-
t.::,tcs, _ is nothitiz to indicate
th.,t the :rift ni:iint:airied all indcpcnd-
i,:ric:? fl-r lurself, tthcther under
ar : .,i,? rcL,tiutiS with her
lurb,uid."
There is another field of late in -which
tit have the same princin?e invnlvcd, and
011, is where a non-resident «:duty tr.takes
a cl.,i n for a statutory allowance in the
%%ht.% he: hnsi,and teas du::aicilcd at
of iti_ t'cath. The n::: iority rt:'.e
u:.l ,.;'. ,:', tie_ tt i,l nv her . ,..t:.;ory :un(,u:a,
but even here there is a coi:flict among the
decisions, as will appear from 26 A.L.R
1: ?,
We believe that under the facts in this
case, the wife has failed to prove the six
months residential requirtmcnt, as provid.-d
for in Florida Statute, § 6�.02, F.S.A., and
that the chancellor teas correct in dismiss-
ing her complaint.
Affirmed.
ALLE\, C. T., and KANNER, J., concur.
p f Sh �YM,t� StSRM
Ewual James JONES. Petitioner,
V.
STATE of Florida. County of Dade,
Respondents.
No. 60-270.
I li>trlct t'-,nrt of Api-v al of FL,rida.
Third Iti=trict.
Sept.:',. POW
11olwarinl; i . J,41 uor lri, lligo.
Prosecution for violation of a cour:ty
tra';ic ,.rdiiiance. "I'ht Circuit C,.:irt. Ii:,t
Cot:nty, Joe Eaton. J., atfirrned a ju IL:tnuit
(if c•,nviction b)• the \Ict:r"Politan Court
trari. The District C o,i-t t,f Appeal,
II,•rton, C. T., held tii:,t dct.':'. ua's motv_m
to quash the ch:argc did nt-t properly 1`.U-v
issue of validity of defentkant's arrest, ui
view of fact that tthethcr the cimrge .tas
subject to quashal was not 0epernlvia
the v;didity or invalidity of duLit,l.,nt's
arrest.
Petition denied.
f. Automobiles C -350
Alth�,Ilg,h, if :any evi,?trice tta- obtain-
ed as tht. ri stilt of ills a? iir,>; if a d..•
�� `1096
, in an
,liowing
maxim
as her
,fy the
. Start,
Schon•
)utchcr,
result,
.n Ash-
Kashaw
s domi-
han di -
is have
i deter.
case.
.•: 4r; 1,
tlprcnle
nstruc-
a wife
.. Jos•
for the
no
has
:il:cd
upitt-
the
Un-
t va-
,ions
.resi-
rYt-
Su:lle
y are
iiffer-
;empt
deci-
deci-
_nt as
with
f.ir in
(ONES v. STATE
Cite as, Flit., 123 So.2d 3M
;,C dtftndant wife con-
tinual to be, in the eye of the law, that
of the husband, but her residclice, with-
in the meaning of the constructive sety-
ice statute, might well ha% a been at
some other place, as alleged in the
bill. * * * "
In the field of taxation in Commonwealth
of \',r�inia v. Rutherfoord, 1933, i60 Va.
21. ln') S.E. 419, t)p A.L.R. 34R, the ques-
t,,w k fore the cogrt was whether or not
ill, �-t.rfe of Virginia could impose a resi-
d, ,} tax on the separate property of a
%%!nan, solely nn the ground that she had
tn'!r:c,l a Vir_n,ia man and that Virginia
N .1, thtrtf„rt lur hi,mt. Prior to the mar-
r:[L!.• the Wtfe had been a Wcll estab',ishcd
X.0 fork res,dtnt and :liter her marriaze
C, ':l;MWd to pay New fork taxes.
1 h, rc Was no friction between the liusban,l
a;.! mfc all,' the wife claimed txemption
f: r: the \':r n;i,, :,,x on the nrn.'unt!s of rut
. „ rt>. ! ::cc. 'J'hc Vira:liia court held
tl:c wife al: J c.*ltiMCd rigid adhcrei;ce
ftcti,,n that a marred
.!ui.. %%htn the fac:, are
contr:try. In'.n1 A.L.R. 3;'1, the
' • ' It; t!tis, hr)-xt ,,-cr, is not
that t!,e hL:,b,ilid
ti:r ,L,tnxii of Cle fatiri'.y,
t! nrcil (If the wife fol-
1• i:l time
1,,. :,' .. ., 1•ut th;it that rule v.-ill
to the
e .,•.;r,, .i:;•i . ,.a it Mill be applied
in the surrot:u `in; cucum-
t.1:,Ccs, ,,,_:e is nothln;; to indiCtte
t!!.tt the :.:Ie maintained an independ-
r:,t f„r I:t•rsclf, whither under
„r at :i;.,i,!e rcL,tions With her
h;l-lr;uld."
There is anot!ter field of law in Which
ut have the same principle in\•nit•cd, and
01, is Where a non-resident widow makes
.1 ;I:,i:n for a statutory allowance ill the
h�cc her htt!l,arld v.as (Ionliciled at
iiis 1!cath. The w.!il,ritw rt:'.e
thr V.,u AW her st; t:::ury an;l,unt,
Fla. 3805
but even here there is a conflict among the
decisions, as will appear from 26 A.L.R.
I . ?.
We believe that under the facts in this
case. the wife has failed to prove the six
months residential rcgnir(nlcni, as provnlcd
for in Florida Statute, a 65.n2, F.S.A., and
that the chancellor Was correct in dismiss-
ing her complaint -
Affirmed.
ALLEN, C. i., and KANNER, J., concur.
•
O � Irk YYMIII t�if[M
Ewual James JONES, Petitioner,
V.
STATE of Florida. County of bade,
Respondents.
No. 60-270.
11i,triet C-mrt of ,lfglr:tl of Florida.
Third Dktrirt.
Srrt. .:11. J!Ituf.
Itl-hoarinh It, ,•Gtil Urt Ifi, IOPo.
Prosecution for \iolation of a rountw
tra:iic r-rdirrutce. The Circuit Cwirt, I tide
Co:!ntc, file Eaton. J., affirmed a ju,lt;ntcrit
(if c•,nviction by the Mctropolitan Court
the CJ11111V, a:;:l de:t::Li::t 1"rollilt CC. —
The I)istrict l_ U'trt Irf Appeal,
I1,•rton, C. I., held that def,r,,'. itit's motion
to quash the charge (lid not properly rai-c
issue of validity of defcn,!alIt's arrest, in
t•icw of fact that Whether the charge t%as
subject to quashal wa, not 0epcndimt up,j:l
the validity or invalidity of dcfcilLnt's
arrest.
Petition denied.
1. Automobiles C-35D
Akh,,u lt, if :uty ewi,',rr,cc vwa- Obtain-
ed as th. result of illcl;a! :trrkri of a de.
4
0
4.
1
0
364 Fla. 82 SOUTHERN REPORTER, 2d SERIES
acts, the conclusion of law is that
Plaintiff, hawing disaffirmed the con-
tract, is entitled to rescission of the en-
tire transaction, providing he can and
does return everything of value that he
has received; that 4 to say, benefits
derived from the contract; he is not
required to refund incidental and re-
mote expenses of the other parties, as
distinct from those he would have been
entitled to under the contract."
a
While recommending rescission, because
of the mental incompetency of the plaintiff,
the master found that by the weight of the
evi lcnce no undue influence had been es-
tablished, and rcconimcnded that plaintiff
pay the costs of suit.
[41 Appellant next contends that it was
error to assess costs against him under the
circumstances of this case. With this con-
tention we cannot agree, for on this record
appellant has failed to make error clearly
apparent,
The final decree appealed from must be,
and it is hereby, reversed with directions
to enter a fina} decree in accordance with
the recommendations of the special master.
Reversed with directions.
DREtit', C. J., and TERRELL and
THOMAS, JJ., concur,
Exceptions having been filed, the chan- a .,,.,.,.��„
ccii.,r entered a final decree overruling the '
master's report and findings except as to
costs and as to certain financial details not
rcicvant here. \o reason was assigned for
this action. The ag:c•rment and deed sought
to tic resc:ndtd were confirmed and rati, awrenee BLOOMFIELD, Willard Johnson,
Fed in cw _r} rt >p_ct Ity the c}ianccllor• Vk
Harry G. Rodefeld, Albert W. Furen and
Sheldon A. Lindsey, Appellants,
rl--31 :1; ; ..,.,., contends that the chan-
c ., the master's find-
::;�>, compcte:a su`i-
s: cat;a! e i�ra•_e. N e have reviewed the
at Ict g:i;, a:r1 agree with appellant
that t:tc rran:.r's findings were abum'antly
s p �rted. The final decree must there-
fore be reversed upon authority of Frank
v. Frank, F;a.. 7. Su.11 282; Slatcoff v.
I� c Fla., 74 S�).23 59; and Harmon v,
Ifarmon, Fla., »,1 _o.2d 21-ri, unless the mas-
ter has ni;�cunceived the legal effect of the
evidence. We think that the situation which
the master's findings describes is one which
clearly warrants rescission. In Windham
v. Windham, 1.52 Fla. 362, 11 So.2d 797,
798, we held that "inadequacy of considera-
tion, coupled with a degree of mental weak-
ness, if clearly established by the testimony,
will furnish sufficient ground for equitable
interference", citing authority pertaining
to cancellation of instruments. See also
Douglas v. Ogle, 80 Fla. 42, 85 So, 243,
and Webb v. Webb, 145 Fla. 267, 199 So.
343.
V.
CITY OF ST. PETERSBURG BEACH, Flor-
ida, a municipal corporation, Earl W.
Compton, Carlisle T. Manly, Virginia R.
Neel, Mayrle G. Woolf, Walter Sweeney,
Rex Padgett, Ben F. Overton. Harold
Soehl, and William Melnberg, Appellees.
Supreme Court of Florida.
En Banc.
Sept. 16, 1055.
Action for a declaratory judgment.
From an adverse judgment of the Circuit
Court for Pinellas County, John Dickinson,
J., some of the defendants appealed, The
Supreme Court, Thornal, J., held that the
evidence established that successful candi-
date for office of city commissioner was a
qualified elector, eligible for election to
such office.
judgment affirmed.
Thomas, J., dissented.
BLOOS'
i- DOmielle C=4(2)
L•;tlr_r :We're i::. _:i',.
d nticae without the f,
ni,w,tl nr the fact of t
int n:nr.i is
dun:iriie.
2. Domicile C=4(2)
Where a good fa,* -
quite a new dumic;le
actual rcmucal evidenct
act<, ch_nLe of r:�il•,'.
and becur,;es effective.
3. Domicile C= f
Lcl ;l "resiJenee" c
currcncr of both fact a
tion.
81- putilirltion Wo:
fi"r other judicial coesr
n:ti,-us of "Rem,b•uce".
4. Domicile C'=1
Legal "residence" o:
a resi,lence at a partic
by positive or pr
intcn :ion to remain tile-
t;r:: _.
See puoh •adon 11'nr
fur utLer Judicial cn:;st.
i.ititais of
S. Domicile G8
Tile place
',where a r,
i:r rest�la is
ecnerali:•
6. Domicile C=4(I)
Establishment of rc�
pends on a variety of ac
all of which must be wei
u'a: cage as evidence w
tip-)u any other subject.
7. Domicile 0=t 2)
Where a man actua"
fide resident of state an:
perr:ianently a citizen :.f
Bence wv:th spec:.4c, clear
12
. - - -. � ......-,+.�-,-ter„+ WflfY-'�C.i'1�iWi};= 4t�-.+i11�,! ;!c 4F'.�► ��J�f�t:`ait�a� r _ •
BLOOMFIELD v. CITY OF ST. PETEBSM0 9E!3
Cite as, Fla., 82 So.2d S64
1. uu.fffl,fe .,-4%it
Either mere intention to acquire a new
domicile without the fact of an actual re-
moval or the fact of removal without the
int'_ntion is insufficient to acquire a new
domicile.
2. Domicile C=4(2)
Where a good faith intention to ac-
quire a new domicile is couple, 1 with an
actual removal evipenced by positive overt
acts, chmige of residence is accompiished
.:,,1 bcconoes clTeetive.
3. Domicile C-I
Legil "residence" consists of the con-
c' r: since of both fact and bona fide inten-
tion.
ve lit0lu•ation 'Words nnil Phrnsrs,
f a L,thcr ju.lirial constructivus and JL5-
a cis ns of "Itt•�iJ uce"
tention of returning will not destroy the
residence actually established.
S. Elections e-72
Evidence established that a man \\•ho in
good faith intended to establish his perma-
nent residence in Florida, as cvidenced by
sale of home in Michigan, acquisition of a
home in Florida, transfer of bank accounts,
filing of income tax returns, and mainte-
nance of Florida home by his wife, became a
resident of Florida, and after tierce months,
a qualified elector in municipality to Pin-
ellas County in which such residence was
maintained, though he returned to Michlh..n
for the purpose of continuing his previous
employment for one year, at the conclusion
of \\ hich he returned to Florida. .acts 1947,
c. "4214; F.S.A. § 97,041 ; h.S.a. Const.
art.
9. Declaratory Judgment C=209
4. Domicile 0=1 titi'hcre majority cot:trol of cit\• crm-
Le:.11 'ence" or "t:�r'Sl'Lc" m('ans n1:F5:)tl and 11e11ce of ea\• go%ce nC:t•nt tle-
a at a partir.;;ar l::lc., a�con:- 1'�n' d upon whether a succ.s�tul can,ll-
tp_'ltive ur prtsu:n; five j,r.f .t ,-) G.tte for I,f:ice of city way a
auu to remain there for an sit:i:m:te,l q;1:li:itd elector of eft} and therefore dull
t....
t• e,tcd and dispute as to his qualification to
Boll] such office re-:i'.tel in orL;aniz-ation of
�f•c t•,...,. :,:io❑ Xt- ,rds and l'l.rasts. #„ ., ;P. ..., a.......
--
$66 rig. 82 SOTJTMN RUOUTRR, 8d SERIES
Carroll R. Runyon, St. Petersburg, Ben
F. Overton, St. Petersburg Beach, and S.
E. Simmons, St. Petersburg, for appellees.
THORNAL, Justice.
The appellees above named were plain-
tiffs in a declaratory judgment proceeding
in the trial court. From a decree adverse
to their liking the appellants,; who were
among the defendants below, have appealed.
t
The dispute grows out of a contest for
political control of the government of the
City of St. Petersburg Beach. By an
amended complaint the appellees, Compton,
Manly and ;Feel, contended that they, plus
the appellants, Bloomfield and Johnson,
were the duly elected and qualified City
Commissioners of St. Petersburg Beach.
The appellants Bloomfield, Johnson and
Rodefeld contended by their answer that
they, plus appellees, Compton and Neel,
were the duly elected and qualified City
Commissioners of said city. The whole
dispute centered around the appellee Manly
in that if he was a qualified elector of the
city and therefore duly elected, the majority
control of the government of the city rested
„,(anly group,.
On the contrary, if Manly was not legally
elected, the majority control rested with
what we shall call the "Bloomfield group".
Although ultimately the control of the
government of the city turns on the ques-
tion of the election of Mr. Manly, the facts
set forth in the complaint as well as the
answer reveal a condition of municipal
chaos and uncertainty that according to
appellees justified the exercise of the juris-
diction of the Circuit Court under the
Declaratory Judgment Act, F.S.A. § 87.01
et seq. The other parties to this appeal
were various city officials appointed by the
respective groups.
It seems that they had a city election at
St. Petersburg Beach on May 4, 1954,
When the smoke of the political battle
cleared away, the tabulation of votes re-
vealed Manly had received 262 votes, Comp.
ton had received 253, Rodefeld had 185, and
Furen had 181. It was obviously a fac-
tional contest. Under normal conditions
1
pursuant to the municipal charter, the re-
sults of the election would have been that
Manly and Compton would become mem-
bers of the City Commission. In fact the
then -incumbent City Commission, which
included three of the appellants, formally
met on May 7, 1954, canvassed the ballots
and certified the results of the election.
On June 15, 1954, on the occasion of the
first meeting of the City Commission sub.
sequent to the election, the appellees Manly
and Compton, having theretofore taken the
oath of office, attended the meeting with
the expectation of performing the duties of
City Commissioners. At this point the so-
called "Bloomfield group" declared Manly
ineligible to hold the office of City Com-
missioner on the ground that at the time of
the election he was not a qualified elector
of the community for reasons hereinafter
pointed out; that his election was, there-
fore, of no consequence at all, and in the
judgment of this group, it was necessary to
fill the vacancy created by the alleged in-
eligibility of Mr. Manly, and in order to
fill such alleged vacancy, Mr. Rodefeld was
elected to a position on the municipal com-
mission.
The contesting groups thereupon with-
drew to opposite sides of the same meeting
room. In an atmosphere reminiscent of the
Hatfields and the McCoys challenging each
other from opposite sides of the valley, each
group proceeded to appoint its own city de-
partment heads. Out of the welter of
feuding that resulted, the City of St. Peters-
burg Beach, like Noah's Ark, had two of
everything; including city clerks, police
chiefs, patrolmen, city attorneys, city judges
and building inspectors. The "Bloomfield
group" retained control of the Police De-
partment patrol car, as well as the books
and records of the city, but this did not pro-
duce any dismay on the part of the depart-
ment heads appointed by the "Manly group".
Apparently the respective police officers
patroled opposite sides of the street, the
respective city attorneys rendered varied
and conflicting opinions as to the authority
of the various officials. Offenders against
law and order were faced with possible trial
by two municipal judges, and the Gulf
BL00AV
Beach Bank, where pul
deposit, refused, for o
honor any checks at all 1
at the bank did not knc
honor.
It cannot be denied t'
-as filed, as alleged in
admitted in the answer
and government of the
burg Beach, Florida, are
and confu-,iun". The c,
as a step toward elimi:
This leads its back to w
the controlling question
bility of fir. Manly to
office to the City of St.
Manlv's eligibility was
ground that he was not ar
wit;t;n the contemplation
utes at the time that he b
for of?ice early in 1054.
after hearing all of the to
that Mr. Manly was a q.:
therefore eligible to ho;
Appellants seek reversal
the principal one, howev
on certain provisions of
which require that muncc
be qualified electors of
Another section of the ch;
"all electors shall be q
to the laws of the State
cial acts applicable to elec
of Plnrlla�."
Appellants further c
Section 97.041, Flori�,,a
order to be a qualified c
things a person must be
dent living in Florida for
siding in the county
register for six month,
appellants refer to Artie!
Florida Constitution, F.-S.
very similar requirement, :
is made to Chapter 2421
governing registration in
where in addition to the o,
it is stipulated that to b,
municipality one must be
municipality for :%rce r.:
grounds for reversa;
S" - iO Jf >
t
hat
em-
the
tch
.11y
Its
on.
the
ab-
-ily
.he
tth
of
So-
ily
m-
of
for
ier
it -
.he
to
in-
to
:i.S
:i-
h-
i ig
he
•h
;e-
of
rs-
uf
ice
'es
)c-
.ks
:o-
rt-
Crs
.he
.cd
ity
�al
:lf
1
BLOOhn IELD V. CITY OF ST. PETEBSBURG BEACH FIAL 367
Cite s. F11L., 62 So.2d 304
Peach Bank, where public funds were on
deposit, refused, for obvious reasons, to
honor any checks at all because the officials
at the bank did not know whose check to
honor.
It cannot be denied that when this suit
was filed, as alleged in the complaint and
admitted in the apswer, "business affairs
and tio%,,-^ment of the City of St. Peters-
burg Beach, F'.orida, are in a state of chaos
and confusion". 'the complaint was filed
as a step toward eliminating the chaos.
This leads its back to what appears to be
the controlling question to wit: the eligi-
hility of Mr. Manly to run for municipal
office in the City of St. Petersburg Beach.
Nlanly's eligibility was questioned on the
gr,,und that lie was not an elector of the city
within the contemplation of applicable stat-
ute at the time that he became a candidate
f,,r office early in 1954. The Circuit judge,
:.fter hearing all of the testimony, concluded
that Mr. Manly was a qualified elector and
ther,Jore eligible to hold office in the city.
A,,-p cilants seek reversal on several grounds,
the principal one, however, being founded
on certain provisions of the city charter
.., tilat municipal officials shall
be qualified electors of the municipality.
Anwher section of the charter provides that
. a;l electors shall be qualified according
to the laws of the State of Florida or spe-
c;al acts applicable to electors in the County
of Pincl!as."
A; pt slants further contend that under
fiction 97.041, Florida Statutes, F.S.A., in
order to be a qualified elector among other
things a person must be "a permanent resi-
dent living in Florida for one year and re-
t.:d:ng in the county where he wishes to
register for six months". Furthermore,
appe,lants refer to Article VI, § 1 of the
Florida Constitution, F.S.A., which fixes a
very similar requirement, and also reference
I s made to Chapter 24214, :acts of 1947,
governing registration in Pinellas County
where in addition to the other requirements,
it is stipulated that to be an elector in a
:tumicipality one must be a resident of such
i,unicipality for three months. As other
gru:;nds for reversal appellants contend
that the provisions of the Declaratory
Judgment Act are not available to the ap-
pellees to test the title to an office inasmuch
as the appropriate procedure, so they con-
tend, would have been quo warranto, and
furthermore that in this contest the burden
should have been upon the plaintiffs below
to establish that Mr. Manly was a qualified
elector rather than upon the defendants be-
low to prove that he was not.
As we shall see, the principal question to
be resolved is whether Manly was a quali.
fied elector on May 4, 19.54, when at least
262 of his fellow -townsmen thought he was
by voting for him for City Commissioner.
It becomes necessary to summarize
briefly the history of Mr. lfanly's residence
in Florida. It appears that he and his wife
visited St. Petersburg Beach in 1949. They
returned again in 1950, and bought a piece
of real estate. They were visitors again in
1951. It then appears that early in 1952
they decided to build a motel on the land
which they had previously purchast:d, con-
structing one apartment in the motel for
themselves pursuant to a decision to move
to St. Petersburg Beach tn rr t•P • —;-;"0. -•
home. Early in 1952 application was made
for a construction loan at a local savings
and loan association, and the motel was
completed in August, 1952.
The 'Manlys, prior to the completion of
the motel, placed on the market for sale
their home in Michigan. They actually sold
it in September, 1952, and put the proceeds
of the sale into their Florida property or in
Florida banks. Prior thereto Airs. Manly
had moved to the apartment in the motel
and had brought with her from :Michigan
all of the personal effects of herself and her
husband such as dishes, lamps and other
personal belongings a.ccL=ulated over a
lifetime. They sold the bulk of their furni-
ture with their home in Michigan. In
August, 1952, they closed out two bank
accounts ih Michigan and immediately
opened an account in Florida. Ever since
the construction of the motel they have iPe-
tained the same motel apartment as their
residence according to their original plan.
The Manlys filed their joint income tax re-
3Gg Fla. 82 SOUTHERN REPORTER, Sd SERIES
turn for 19;2 income in the Jacksonville
District Office of the Internal Revenue
Department, the same hating been filed be-
tween January and :March, 1953. Similarly
in 1954 they filed their income tax return in
the same office for the 1953 income taxes.
In both of these returns they showed their
residence to be at the address of the motel
above described. Both husbalid and wife
testified positively that they decided to be-
come lcfial residents of FloridA on Decem-
ber 1, 19;", when Mr. Manly was in Florida.
1'htir tc5nmony is positive, consistent and
unequivocal on this point. It appears that
on or about that date they concluded that
the motel cost there more than they had an-
tic:patcd and was not yet producing the
income they expected, and that therefore
Mr. Manly would continue working for his
company in Michigan for one more year in
order to sue plemc::t their income and to
,ua!ify him fi,r an adi!itional year on his
rct;remcnt bt:;c:i;s. lie went back, to
Michigan carp• in 19-3 to accomplish this
I i:rp--se and thi; purpose alone. Fur awhile
he haJ a room with a nephew there and
then rented a small apartment on a month -
to -month ba<is. All of this time, hc)wcter,
%,)n:e, his wife
r, ruined in Florida taking care of their
motel and it was unly or. one or two brief
uccasiuns as visits, an.l the evi-
r,cncc silo -.vs tlta thty %t ere, th:.i sl:c ever
wt-nt back to M: ch:gan durin: 1')- 3. 1:111,1EY
in Ueccrnbcr, 1`1: ilat;ns; the \car
Ica rd'u:L to I• Z,11 and havin; ez:r:led the
s l..::Uvrial fie:. ri:ni L. bt'Ile'l.t�, .11r. laaiy
re:,:r:ud to St. I'ctersburb Beach, regi::ered
to 166% in January, 19:4, and quali c•d later
as a fur the City Commission with
res:il.t above mintiur.cd. In addition to
t?:e f jrigoong facts it apt.:ars that Manly
i:u l a \i,J!:;an t:l- oil his autoniob;le in
1'', 3 f'.'r the reason that he kept the car in
Michigan \t'h;le he was workin;. Iie re-
tailicti his \li:higan driver's license because
up there they had a three-3-car license aml
his did not expire until 19-54. Out of all of
these facts tine are called upon to determine
whether Manly was an elector with at
Rant one year of residence bcliind him at
the time he roistered to vote and subse-
que::a; qu;,lred to run for municipal office.
1
The Circuit Judge concluded that he was,
and we concur with the Circuit Judge.
[1-5] We recognize the rule announced
in the landmark case of Smith v. Croom, i
Fla. 81, where it was stated: "The mere
intention to acquire a new domicil without
the fact of an actual removal avails noth-
ing; neither does the fact of removal
without the intention." Applying the rule
in converse, however, we have consistentl}
held that where a good faith intention is
coupled with an actual removal evidenced
by positive overt acts, then the change of
residence is accomplished and becomes
effective. This is so because legal residence
consists of the concurrence of both fact and
intention. The bona fides of the intention
is a highly significant factor. In Wade v.
Wade, P3 Fla. V-04, 113 So. 3=4, 3 %5, the
governing principles were announced as
folluws :
"In Plidlinore's Law of Domicile
(page 13), quoted with approval by tl-:s
court in Smith V. Crvoln. i Fla. 81, it is
said that 'duniicile' ai,�!wcrs \cry much
to the common meaning of our word
'hra:e.' t'_ed in tius cunnectu•n. 'legal
residence' or %'.oniic:le' mc:::,- a resi-
delictr at a particular place, accorn-
panicd witll positive or pr 41vnptive
proof of an in;crition to rc;:-ain there
for ,it unlinutcd time. 'Eie term
'domicile' was defined by the Roman
taw to mead:
"'In whatsiever place an ind:vitlu.,l
has s.t up -h:s household go,,ds and
rnade the chic' scat of his a:.a:rs and
in:errst;, from which, v:itliout sur-c
special avocation, he has nu inten:ion of
depart;nA; irom v.h:ch, \%hcn he has
departed, he is considered to be away
from home, and to which, when he has
returned, he is considered to have re-
turned home.'
"Tht place i+•here a married man's
family resitic'n is generally to be deemed
his domicile, but the presumption from
this circumstance way be overcome by
other circunit�tanccs. Smith v. Croum,
supra."
8LO(
[6]- We also hole
one's residence w;'.l
variety of acts or de
must be weighed in
evidence would be w
subject.
[7.8] We hold f
actually becomes a
this state and inter
nt•ntly a cittzen of t:
With the :peclfIC 6.
tion of returning wi:
dcnce actually there
aPPcars to this Cuur
f,: th Mr. 'Manly fit':
ills ilcrma cni rc::d
ccn;hcr, 1951. This i
by itinumcrahle stcl•.
taken by disposing of
the transfer of his i
quisition of a home s
income tax returns,
of the Florida honie
he enjoyed a happy
relationship. All of
other factors mt•n-:t
capi,bly ;o :he cur.;iu
1,cr l"" •1• ' _ . .
tendtd but actually h
steps to rm-ke him=
State of Florida. 1
thcrcfure. ha'.l coneu
dent from th,:t gate
tl:_ c•.:�cncc I ....
h,, i a re a:•_r.�e
sortie date ill tht' .
ca>c this Court
of the itac::; and
res:.'.ence h..tl not c
hea..note indic::::;
pres:n:c :n
quired time is essent
tion of the
ttiality such w::; no.
the Court. 1'?.e C.
that ill a c?ivorcc Pr ;
ill which t?:c �'-.:r
party, t?i•.. , ..
r"Y : - Lo:3it
IM
ge concluded t'n"t tic w,i�,
;Ith the Circuit JudGc.
:ognize t}le rule announced
case of Smith v. Croom, 7
:t was stated: "The mere
uire a new d,m;icil withl'ut
actual removal avails noth-
:ors tile fact of removal
ntion." Applyii,, the rule
vever, we hia%e cunsistently
a good fa::h intultioti is
n actual rini•,val evidenced
acts, then the change of
Icon, :'shed and becomes
is so bccau:e l: gal residence
oncurrcncc of Perth fact anti
buila of t`.0 Intention
,:f.cant %ct .,. in 11•a,1e V.
: 1:? - ,-.t, the
,nrc's Law rf Dom:clle
r ! •,ti:.....• cal 1, tl•a
it is
deli
,n 1:'. '.tl
'it;ve
:ac:.. ❑ . � .... ..:1 the rc
: , tr...v. IIie term
I y t:;e Roman
. , .. ; :.,,, a•. .. '. , .Taal
,.e: :C.•t O: Y:5 .....,.:5 a1H1
.,ae,tl, hc' ...,. t: 1 a:a;, ioil Of
fr,,n1 e.hch, v.:,,n he hills
is cX..si,l,-,d to be away
.:1.7 to tt h:ch. '.. ien he h.is
: is guns;dcred to have re-
v.'
:c is lie re a 1r..Ir r icd man's
Lou' t'.Ic p:c:::::1}ti;,n ir.•rll
may 'Je ovc-rconle ! �
.4111,
BLOOi>f TMLD v. CITY OF b. �PETERSBURG BEACH F1a. 3f 9
Cite at, Fla., 62 So.2d 264
[6] We also hold that establishment of
one's residence will usually depend on a
variety of acts or declarations all of which
must be weighed in the particular case as
evidence would be weighed upon any other
subject.
[7,83 We hold further that if a man
actualiy becomes a bona fide resident of
this state and intends to remain perma-
nently a citizen of the state, mere absence
witil the specific clear-cut bona fide inten-
tion of returning will not destroy the resi-
dence actually theretofore established. It
appears to this Court that in absolute good
faith Mr. Manly frilly intended to establish
his permanent residence in Florida in De-
cember, 19c2. This intention was evidenced
by innumerable steps theretofore definitely
1 taken by disposing of his home in Michigan,
t the transfer of his batik accoutits, the ac-
quisition of a home in Florida, the filing of
income tax returns, and by the maintenance
of lie Florida home by his wife with whom
he enjoyed a happy and congenial marriage
rclat:or, l-,;p. All of these together with the
other factors mentioned above point ines-
cap.,bly to the conclusion that as of Decum-
b,r. ly:_'. this rlan not r)nly bona fidcly
tended but actually had taken the
steps to ma;<e himself a resident of t::c
State of Florida. The intent and the ;,
therefore, had concurred. Ile w s a rc-:-
dent from that crate forward.
\',-e distinguish this case from Campbell
v. Cat -pbell, Fla., 1'if2, -F-7 5o11 34, where
tile' e•y;Jtl;Co p01111Ld to a:; iilte:,t to
lah a residence for divorce purpo;cs at
soak date in the future. In the t.:amhbcll
case this Court livid that the concurrence
of the intent and the act of establishing the
residence had not concurred. Although a
hca,!note indicates a holding that actual
ph%sical presence in the state for the re-
i;:;:red time is essential, a careful examina-
tion of the opinion will reveal that in ac-
tuality such was not entirely the ruling of
the Court. The Court did insist, however,
that in a divorce proceeding which is a cause
in which the State is al•.v:iys an unnamc i
thin! party, there niust be a positive show-
:;,, tl;.a tide of actual perma-
62 Su.2d--:4
nent residence is bona fidely intended and
that there must be clear and positive evi-
dence of fulfilling this intcnti,?n by af r=-
ative acts that point conclusively to the
desire to make Florida one's per nianent
residence. Here again the intent and the
act must concur.
[9, 10] Haying held that the appellee
Manly was a qualified elector within the re-
quirements of the laws appiical.ie, tye con-
sider the other two questions raiscd by ap-
pellants. In the matter of the propriety of
employing the Declaratory }u l_mrr;t Act it
appears to us that the proceeding under
this act was thoroughly justi;;ab:c in t};e
case at bar in order to brim an csp edttious
termination to the public conf::: _ n tl;.,t re-
sulted from the situation dc-: ibcd above.
While the matter of the rip')* tD an of:i_c
was involved, it is perf'_ct .)!,%ions frrall
this record, that the basic obice:n'e of the
proceeding was to elimil;ate tihe cha-)s that
existed throughout the entire municipal
government. If the issue had Bern limited
sole!.: to tryin, title to an r•:'.Ice, quo war-
ranto would have been the r, m, ;v. In view
of the record in this particul:.r case, ap-
pi!',ants cannot • ._ I:::
[ll] We d;sp,»_ of :h• a'. _ ! err
as�i,•ned on the n.:,er ,f the l
proof by a ;.,
wt:ich reveals that the al•p.l''1 ... tilr�u a
tt;e:r attorney tout. the lye-:
t,, as -.ire.•. the }
- n
-IN.,• would like t"r t!,.e t� ..
that we assumed that !,:.. 'e:i i ....;a7
and it was not cast up, n us, :..,d we d, Ih•t
acrnit It was cabt upon us a a nl:,aer of
law". Having volt:nta .yip assmr, ! ti,_
responsibility of roil,.; fi xard wah t!;c
proot, we cannot see t!;at tiro
are now in a position to fl:..:! .,,,
error on this proposition. T'itref .c, %ve
do not consider it necessarynece4sary to explore the
law appiicable.
Findin;: no error, the &:rcc wi ti:: lower
co -art is, therefore,
Atiirtn,d.
RS, �
z.
I
310 Fla. 89 SOOTBERN REPORT1i;R, 2d 111=11
TERRELL, HOBSON and SEBRING,
JJ•, concur.
DREW, C. J., concurs specially.
THOMAS J., dissents.
•
ROBERTS, J., not participating.
DREW, Chief Justice (concurring spe-
cially).
In this case, as in many other cases be-
fore us recently, the question of the pro-
priety of bringing the action under the De-
claratory Judgment Statute, Chapter 87,
F.S.A., is raised. I think the situation pre-
sented here, and so ably discussed in the
opinion of Justice THORNAL, clearly evi-
dences the wisdom of the provision in Sec-
tion 87.12, F.S.A., that the existence of an-
other adequate remedy shall not preclude
the exercise of jurisdiction.
It was never intended that the adoption
of Chapter 87, F.S.A., would eliminate all
nthrr fnr:n1 of action. On the other hand,
it was never intended to put the Act in a
strait jacket because another remedy might
be available. In my specially concurring
opinion in tialpert v. Olesky, Fla., 65 So.2d
762, text page 764, speaking on this general
subject I said:
"I cannot a.-ree that Chapter 87, F.
S.A., is as limited in its scope as the
main opinion seems to indicate. Sec-
tion 87.05, F.S.A., especially provides
that the enumeration of certain specific
things in Sections 87.02, 87.03 and 87.-
04 does not restrict the exercise of the
general powers conferred in 87.01 in
any proceedings where declaratory re-
r
,`f�Yir,a
lief is sought. Our statute is broad
Eugene Robert .
and flexible and is designed to serve—
Dune:
and does serve —a highly useful pur-
pose.
C. E. MARV
"Section 87.11 of the Act negatives
such a narrow construction as is ap-
parently placed on it by the main opin-
ion. It provides that 'Its purpose is to
gej
settle and to afford relief from insecur-
ity and uncertainty with respect to
rights, status and other equitable or
Action by str
legal relations; and is to be liberally
ing, specific pert',
administered and construed.' (Em-
of receiver with
phasis added.) Section 87.12 provides
Court, Dade Cot
that the existence of 'another adequate
heart. J., granted
remedy' shall not preclude the exercise
charge receiver,
of jurisdiction.
certiorari. The 5
held that where p
"It is my view that to place such a
sixth of corporat•
narrow and strained construction on
showing of fraud
this .Act is not only inconsistent with
corporate assets,
many of our decisions construing it,
vent and a going
but does violence to the legislative
entitled to have 4
intent. In the practical application of
out notice or bor.
the Act to given facts or circumstances,
}folders enjoined
there is no stil,stltutc for the proper
oration of burn.
exercise of sound judicial discretion
that corporate sto
by the court."
Certiorari ;
While it would be disastrous to extend the
quashed.
provisions of Chapter 87, F.S.A., supra, to
all forms of acttun, equal harm would be
done by unduly, limiting the scope of this
Corporatlons C=►
Act. This is especially true «here, as here,
Where petiti
when the case reaches us, it has been thor-
of corporate stoc'
oughly litigated by the parties.
ing of fraud, dou
porate asses, a:.
THORNAL, J., concurs,
and a going c( :.
titled to have a
TIiOr1:�S, Justice.
notice or bond,
ers enjoined frc
I dissent because I think the litigation
tion of business
should have been determined in quo war-
corporate stock L
canto proceedings.
Marks & Ke"
Davis, Miami 1;
Joseph A. Iiac,
Parker, Foster. t
hassee, for resp.,
zA
1
33 SOUTHERN REPORTER, 2d SERIES
The only pertinent portions of the record
involved in these proceedings are: (1) The
award of alimony, under date of January
20. 1947; (2) the testimony before the
Chancellor, on August 21, 1947; (3) the
order of commitment, of like date. All
o:}rc•r ma:tors in the transcript might as well
have been omitted, inasmuch as the rule
provides that, as to the record to accom-
pany a petition fors certiorari, it shall be "a
cc•rtifierl transcript of the record of the pro-
cecdin;s the petitioner seeks to have rc-
vir:tved or so much thereof as is c:scntial."
t �:u:,rcmc Court Rules 23 and 34).
It appears that the Chancellor below, on
dw 21st day of January, 1947, made ;in or-
elir decreeing that the defendant -petitioner
:ry to the plaintiff -respondent the sum of
;per week, for the maintenance ankl s•,tp-
port of herself and her two m:nor children;
that on the 21st day of Aucust, 1947, a
boring %%as had before the Chancellor in-
,,1%•r: Il;e nonpayment of,ahnton% accord -
in; to the order of jarv:ary 21, sulim, an11
:hat t} c Chaneellur, :,t the conc;r:�ion of
:!;e hear;-:c, adjudge-1 the petit;,); cr in con-
:cmpt of court by reason of his fadure to
pay to the plaintiff the sums ordered to be
v.Od uvu.i the award.
the proceedings before the Chancellor in-
volving contempt were more in the nature
of an inquisition, prosecuted by the wife,
as to the ability of the husband to pay,
which inquisition failed to reveal that the
inability of the alleged contender to obey
the court's decree was voluntarily brought
upon himself, or due to his own fault, and it
likewise failed to reveal that the allc;;ed
contemner was able to perform the decree
of the court.
Upon the showing made by the record
before us, it appears that the Chanc.:: r
erred in adjudicating the petitioner in con-
tcnipt and thereupon it is ordered that cr-
tiorari issue and that the order of Acg•.r�t
21, 1947, be, and the same is hcrei,v
qua>itcd.
T11O\t:\S, C. J..
ADAMS, jj., concur.
where cau
'!r .. ....
the forum.
4. bamteite
The 1
where he t
—1LAUdgmer
Rule
require co;
feet to En.L
6. Judgmen
Full f
require re.
not final.
7. Judgmen
F, rc :,
of judicial
take of th,
if procure
8. Judgmer
Jt:rrst
prcmy�:: r;
9. Divorce
synon .•^.�:
,~...
"Cit-zvw
10. Divorce
n::c c
ida for
so wits: b
net,.,, a::c
to :•�:
tnat;er .
It. Divorc
with olio
place
where lie
bership, a
other :....
12. J u d ni,
l.r
not
at c� ::n
K
OGDFV V. OGiI'FN F1A. Sil
Cite Y 33 Sold 870
�' �r• rante first arose woald afford relief 13. Courts C=12(I)
llor itt•
nature
e wife,
'o p3Y1
:tat the
0 obey
' 'rought
. and it
1licgcd
decree
record
ncc•lior
.n con -
at cer-
1ugu�!
tiercby,
D, and
rQ
idence
Eng.
•td re.
.trinity
fe re-
••quent
nd in
rained
r
:tte its
t Can.
)reign
9
e en-
rctiun
unaer same. circumstances to judgments of Process 0=77
the foram. under Florida law, domicile is so im-
portattt that it determines court's jurisdie-
4 bomlella C=10 j ti,m c,f parties and, if substituted service is
The best proof of one's domicile is relr<<1 upon, the regulatory statute must be
where he says it is. stric!Iv followed.
5.-.tudgment 0=831
Rule of international comity does not
require courts of United States to give ef-
fect to English ju�gments that are not final.
6. Judgment C=814
Full faith and credit clause does not
require recognition of judgments which are
not final. U.S.C.A.Const. art. 4, § 1.
7. Judgment C-831
Fureign judgment, to actuate doctrine
of judicial comity or reciprocity, must par.
take of the cicments that would support it
of procured in this country.
& Judgment C=16
Jurisdiction of the parties is the first
prerequisite to a va:id jw:gmt nt.
9. Divorce 0=62(6)
When divorce and alimony are in liti-
plion. "domicile" and "citizenship" are
svno7ymons and may overlap.
%#. ms nn.) 111irasrs, Permunrnt
Edition, fi-r all other deftl6wa of
"Cit yew -hip" and "Domicile".
10. Divorce C=62(2)
One establishing his residence in Flor-
ida for purpose of securing divorce mast do
so with bona fide intent to make it perma-
nc:t, and its cstabltsl:r;f tit :� prcnqui tie
to fix:ng jurisdiction of court over subject
matter of di%urce suit.
11. Divorce C=62(6)
Citizenship or domicile in connection
with divorce and alimony may be aided by
place of one's business, profession, or trade,
where he holds his church or lodge mem-
bership, and where he votes and exrrci.,cs
other indicia of citizenship.
12. Judgment C-831
he judgment of an English court will
not be recognized on of internation-
al ce,mi!y where essentials of due process
required by dumrstic law arc not ubscrvc,l.
14. Judgment C=831
Where suit was brought by wife in high
court of justice in England to restore her
conjugal rights but husband was citizen of
and was then living in United States, and
issue of jurisdiction raised by husband was
di>misscd, without determination on the
tnerits, because of his failure to pay costs,
decree finding husband guilty of desertion
and requiring him to pay alintony would not
as a matter of international comity be given
etlect of res judicata as to issue of deser-
tion in hmband's stnt for divorce in Flori-
da.
CHAPMAN, J., dissenting,
Suit by Clement Moore Ogden, also
known ns Francis Clement Moore Ogden.
against R +se Edith Ogden, also known as
Ilaydec Rosa Ogden, for divorce, wherein
defendant answered i-:il with motion to dis-
miss and counter,' ..med for niimonv and
su:t mOney. Dccrce for plaintiff, and de-
fendant appeals. Can motion for rehearing.
A`irmed.
Appeal fr<.m Cir- ;tit Court, Dade County;
Ruse Williams, Judge.
Evan, Mershon, Saw'ycr, Johnston &
Sinintons. Ilcnc(:rt S. Sawyer, and W. O.
Muttrtens, all of Miami, for appellant.
Rc.bcrt L. Graham, Jr., of New York City,
Redfcarn S Ferrell and D. 11. Redfearn,
all of Miami, for appellee.
PER CURIA.M.
The record and the briefs in this cause
have been cxmnined. We are not convinced
that reversible error was committed so the
judgment is affirmed.
Affirmed.
TERRE•LL, BUFORD, CHAPMAN, and
ADAMS, JJ., and PARKS, Associate Jus-
tice•, concur.
—, o Fla. #OUTHEM REPORTER, 2d SEnTES
T110M.%S, C. j., dissents.
I1:\RNA, J., not participating.
TERREI L, justice.
Appellee, Clement Moore Ogden was born
barn in Paris in 1894 of w•eaithy American
parents who spent a great deal of time in
Europe, died and were buried in England
but nev r applied for citizenship there or
surrendered their citizenship in this coun-
try. Clement Moore Ogden vase educated
in England and has spent most of his life in
Eur,,pc but has never surrendered his citi-
zcnship in the United States. In 1924 he
married a French lady at Cannes. To this
union a son, David, was born and soon
thereafter the marriare was severed by
divorce. In 1930 he married the appellant,
Rose Edith Ogden, at Cannes, to which
union a daughter, Patricia, was born in
Switzerland in 1931. Rose Edith Ogden
was born in Argentina, but like appellee,
has spent most of her life in Europe.
Appellant and appellee lived together as
man and wife at different places in Eu-
rope and made irregular visits to this coun-
try during their married life. In 1939 they
bought a house in England and were hav-
ir.g it reconditioned when appellee was re-
- •, thin country, because
�1 nrld War Two half broken out and a:1
ci:izcns of the United States were advised
by our Ambassa Jnr at London to return
home. Appellee L leges that he made all
ar rant,cments to return to this country
with his family and secured transportation
for cacti of them, but at the last moment
a,•p,.1:::nt ref:a.d to accompany him or to
per*tit P.ori,:ia to return with him. Apo-
;,•:C:e returned to New Fork with his son
in May I94D, where he resumed his domi-
cile.
He continued to reside in New York till
[. Noyeniber 1')44, when he removed to
Flori-da and estaliiished his domicile at Holly-
wood for the purpose of improving his
health, so he alleges. Repeated attempts
to get appellant to join him in this country
and resume their family relations failed,
so in February 1945 he instituted this suit
for divurce based on desertion. Defendant
answered the hill with a motion to dismiss
and a coui,.tcrc'.iim for alimony and suit
1
1
money. Prior to the institution of Og-
dcn's suit for divorce in Flnrida Mrs. Og-
den trough: a suit in the High Court of
luvice in EngLind against Ogden to te-
store her conjugal rights. The judgment
sccurerl in that case was the predicate for
'sirs. Ogdcn's motion to dismiss Og Icn's
bill for divorce in Florida. On final hcar-
ing the plaintiff's prayer for divorce was
granted, defendants mnticn to dismiss was
overruled and her prayer for relief by
counterclaim was denied. This appeal is
from the final decree.
On first consideration the judgment ap-
pealed from was armed without opinion
but on petition for rehearing we are urged
to review and reverse that portion of the
order of affirmance in so far as applicable
to Mrs. Ogden's motion to dismiss. The
effect of overruling the motion to dismiss
was tantamount to refusal of the chancel-
1(')r to apply the rule of comity to the judg-
ment of the High Court of justice in Eng-
land secured by IMrs. Ogden in her suit to
restore coniugal rights. We are also urged
to render a written opinion because the
question is one of first impression in this
State.
By factual allegation appellant has very
thorougYy presented four questions for
our eon,ideration but we tl,:t,;, :; of
rt:ay be resulyed into two essential qucs-
ti. ms, tow'it : (1) Did Ogden properly raise
aru prove his charge of desertion, and (2)
under the rule of international comity,
somctirnes called the rule of reciprocity,
did the chancellor commit error in refu-zin;
to hold that the Judgment of the Nigh
Court of Justice of England in the suit
brought in that country by Mrs. Ogden
against her husband for restitution of con
fugal rights, was res adjudicate as to vie
question of desertion in this case- The
English decree found Ogden guilty of de-
serting Mrs. Ogden and ordered him to pay
her two thousand pounds per year alimony.
[1, 2] As heretofore recited, the second
question is the uric on which the rehearing
is sought and to which this opinion will be
primarily directed. If this question re-
quired an affirmative answer, it would nec-
essarily settle the first question in favor of
Mrs. Ogden, but since we think it requires
J6
a negative a;
in Fta*'c t:::l:
ine,l the, eyi :
tions, and a. e
to sup, nrt :`.,,
d.)es not imp'
conf?i: s in tl;
hr hc• :, fed ,
thr affair and,
y;ttc:•t� t1;;' to
r, livr with+ ,.
fur his, whic',t
[3] On 0,..
under the M:,
charier" �r c-n
t" git'c the •
ju,,. .. d r,f
of l:n,_:an,
the ;u-:;rite:,;-
given f.,rcc a:
r•I only w:i,:i
tion where
ford rt icf u::
to the
ing tl:e r u,r
query, w•,ta•1
and gtvc
ciimstances ..
offered for cnf
rc•�tur.... .. t..
Court of JC,':.
tics of this, ...
New fork, t
t ;cd
1Lf:a.ltCtwrt
cause e.,r.:e
Court di�:ini-
and held
the
ply with .::e C
and security.
shows on its
aphcl'ce's d,,::;
tion of
the Eng';sh
Mrs.
come O�
b:dr, is •n • • ,.
.t,,
i1
►1
I
ug-
Og-
t of
re-
nent
for
•.•n's
car -
was
was
by
i is
ap-
tion
•ed
the
ible
The
.iss
-cl-
.l g-
ig-
to
r-cd
she
'!-,is
for
m
s-
se
2)
t y.
.y.
;h
:tn
•ri-
ih e
lie
re -
ay
:y.
nd
ng
be
X-
•c-
-, f
_s
0ar)F7% V. OCIIEX Fla. 873
Cite w 33 %o.Cd 870
a negative answer, it is not out of place
ed by the English Court in her suit to re -
to state that we have carefully re -exam-
store conjugal rights. Despite the fact
ine(l the evidence in support of both ques-
that Mr. Ogden then claimed and has al-
tions, and we think there is ample evidence
ways claimed the United States as his
support the charge of desertion. This
domicile, his plea raising that point was
dries not imply that there are not sharp
dismissed without a chance to meet the
conflicts in the evidence, but the chancel-
issue on the merits and litigate the qucs-
lor bcGcved the complainant's version of
tion of domicile. On August 14, 1944,
tl;c of -ir and the record is sufficiently con-
the original order was amended to require
vuicim-, that we could not reverse the chan-
'Mr. Ogden to pay Mrs. Ogden two thou-
ctllor without substituting our judgment
sand pounds per annum as alimony, "un-
iur his, which we are not permitted to do.
tit further order" of the English Court.
(3] On the point of whether or not
It may be that such an order is binding
iri&r the rule of international comity the
under English practice, but we do wit
Jianccllor committed error in his refusal
think it attains the dignity of an order or
to ,ive the effect of res adiudieata to the
decree that the Courts of this State are
of the High Court of Justicc
required to enforce under t' e role of in-
ri: 17:it !and in the suit for restitution of
tc•rnational comity. In the first place, it
c•atiugal rights, the general rule is that
is not a final decree of the Ens;lish Court.
t!:e jud;ments of a foreizn court will be
fir. Ogden was not an English subject
g;%-en force and effect and will be enfnrc-
and the courts of that country did not ac-
t; only when the courts of "the jurisdic-
quire iurisdicti, n of his person. lie claim -
,:on %there the cause first arose would af-
ed his domicile in this country, he post
ford relief un-.'tr the same circumstances
tietly t;enic,l I:n Ii>h domicile, and when
;u the juil,inicnts of the forum. Apply-
advised by the American Ambassador to
ing the rule to this case, we have the
leave that country lie immediateh• made
an En::ish Court recog-nize
preparations to di, and did in fag t
and pt�c t:;rct to a hhrida decree against
cnme to the V;1:,L,l :. tes where he has
an En lit:i suhicct secured under like cir-
remained to t!:is d;::c. Ile inherited a
:,s the English Court decree
sizable fortime in tlic *z•ate of New York
offered for enforcement here?
from his father. whi. i• he still owns, he
pays taxes thcr r, hi• crimes from
[4) Appc:lant instituted her suit for
there, :,rid every indicia of his citizenship
rtr rati.,a of conjugal rights in the High
points to New fork ns his legal domicile.
Court of Justice of England in 1941. 10-
It is quite true tltat the major portion (-i
t:cc of this suit was served on appellee in
his life has bt:cn spent in England and on
New 1'ork, 0,:,obcr 29, 1941. :appellee
the continent, bu: he h• d lined in hotels,
:Aa an a:::Jatit to be used exclusively as
rent%J houses acid flats and had cxpreswd
evidence at the trial, raising the point of
no purpose to become an English subject.
Juribdiction of his person. When the
He was a man without a profession, trade
cau_e c.:me on to be heard, the English
or job, acid, so far as the record discloses,
Court dismissed the issue of jurisdiction
spent his time in Europe for lack• of in -
and held the appearance to be general, on
ccntive to appropriate it to something ,
the ground that appellee had failed to com-
more htud:i')lc.
ply with the court's order requiring costs
After all, the best proof of one's domi-
and security. The order in other words,
cile is where he says it is. If the place
shows on its face that the question of
he claims for it is challenged, the law of
a:,pcl!ce's domicile, as affecting jurisdic-
this country perinits him to meet the chal-
tivn of his person, was not adjudicated by
lenge before a judo teat against him be -
the En;lish Court,
comes final. The evidence takt:n on the
Mrs. (),den's primary reliance to over-
point in England shows that Ogdcn's dom-
come Ogden's charge of desertion with
icile was a question for the courts of this
tl e plea of res adiudicata in the case at
courtry to decide. The expert testimony
b.,r, is Lit tits plci,d'ngs and order enter-
of English barristers on the point shows
33 60.'_d-53"i
k
�A
1
- M SOUTHERN REPORTER, 2d SERIE9
that the decree for restitution of conjugal
rights was good in England, but that its
extra -territoriality was a matter for the
American Courts to decide. We have
previously shown that Ogden entered a
Special appearance and made an issue on
the point of domicile, but his appearance
was dismissed because of Ogden's failure
to pay costs, so the issue of domicile has
not yet been litigated.
1
[S, 6] In fine, we construe the net ef-
fect of the expert testimony to be that
the order of the English Court in the suit
t„ rtstnre conjugal rights, if issued in a
forc•i::n country, would not be given effect
in Eng!"nd because it was not final judg-
ment. X%'c do not understand the rule of
nitcrna:i nal comity to require the courts
,,f t:,;s c,.00ry to recognize and give effect
to the ju,':z-ncn:s of an I tlg!ish Court
that are not final. If permitted to reason
i,y it m:,r be said :L:., :ch is the
tr;tct of flip fu'.l faith aml crct::t' cause
of t!:e Lnr"!;,ttit: (ill of the U:•::c.f eta -es
of other Sec:i(in
I, :1::... IV, I't !cral Ccm :lupine; Bar-
`•cr v. I..,rl cr, 323 U.S. 77, 65 S.Ct. 137,
n 1.1-.i f'. I A.L.P. 163; Lc.l:rcr v.
Iz4 Ha. 11.7, V, cr).2d '-Z:6: NIcis-
ter v. D::�:. 2) Ohio.',np. 221, I:1 \.E.
of counsel groat rc.i::nee
p;aced on tl:c ch.ir:c t`.::t tilt Fin,^::pit
..:j;mcr,. is n,,t final L::; in oil.- rids that
a not material here.
[7, 8,1 contcP.rls that the It:'f,-
ta:::; in rite 11lg; l Co::-,: of las,ice of Iyr.g-
rt lit.. cc ;j::;al rig il:s, is
}' :lrr cvi•1.::Ce of ctr.incn- English
h',rri�:c:s, to he co:rc:nsirc :and bin,}ins on
r ;•1tn ::s t., tl:e cr:,rt-tion of d.s.rz:on, and
_.r ..._ 1;.w of Il::trt,,,.. atal Cemit}, is
i,..r to ii::;a;:::; t!ic q::estion of desertion
is t':c courts of Florida. App eilant fur-
ther c,�mtcnds by the same token, that the
If is t'.:::t of Justicc of England and h d jur-
is,-:cz:,-)n of th, subject rnatter 1:;ig-ted
,litre, because bot!: parties lmd lien resi-
dua, of F:r:g' .r..l, i:llcrc c };..?,:, ,.. n ccas-
ed and that 0o;.Icn's ac:uaI domicile in
:as ri ,t essen:i.-J to give the
of tl:at c,::rary ju71_.?;:t:0n of the
•l:t-�e�, t^titter.
N
We do not challenge the content of the
foregoing paragraph as being a correct
statement of the law of En. -land, but if
it is, then the very predicate, on which
the judgment for restoration of conjugal
rights is laid, is such that it should not be
recognized and enforced in this state un-
der the law of international comity. To
actuate the doctrine of judicial comity or
reciprocity, the foreign judgment must
partake of the elements that would support
it if procured in this country. Parker v.
Parkcr, 1F-5 Fla. 633, 21 So.2d 141. If
this is a correct statement of the law of
England, a judgment secured thereby is
charged Nrith dt fi;icncies that w•oult! lift
it out of the class rightly entitled to in-
ternatit,nal reciprocity. In other words, if
the que,tion of desertion can he determin-
ed in England wi:ht,ut securing jurisdic-
tion of the defendant, and if the question
Of ?its d(?vii:i;c is not m:ilerial to that de-
ternimmiuri, llicn juritidiction and duc
process u::t:cr Ln ':-11 l:tiv is ;o dtti:rent
from w'.:at we n:.' rstan,,I it to be in this
cnuntr.:, and v,itat i:ur Ia.v rcgti:res to
support it, t!:at a jiv!gmcnt secure :here
in a case lit;: t.i;s w•ui:!,! not he recog:tiz.
ed and enfc-ced in P;urid i on the b::sis
of it:tcrr:,tic.:al comity. 1•rris(!.ction of
the parties is the first prerequisite to a
judgment in th:s c• '.rtry and it
mak.s no d:ffcrcnce w•hr•!:rr the par:ics
art: Lim-(- L•zar•. s or t}le L••ghcst rank,
Mg citizclu.
[9-11] L.'ndcr the constitution and lain
of t:lis anti
are iit 1:::,: non, d, ri;cdc and c::i::.nship
are sylrvnt lttuus :aid may o•, erlap, that is
to s: y, one csmbhu -Iiing his resicictice in
Florida f,)r the purpose of s,:cr:r;n a di
t•„roe, tnu: t do so with the bona f,1- i;i
tt.ut to it permanent and :,s cstal,-
!ishmcnt is a prerequisite to fixing juris-
diction of the cuurt over the subject mat-
ter of a divorce suit. Citizensh:p or dum-
icile may, be aided by the plw.e of ones
bU.Sill.bs, prtfesiiun or trade, where lie
holds his Church or lodge mcn,,bership,
inhere one votes and excrc:ses uthcr in-
dicia of ci;izc:t hill, but all such alto, are
absect in tl:i.i case. 0,zden was a man of
indtpcnt:k�nt t::v:ws, never had a L su1c�5,
pro:cssiori or tra
of this country, a.
his allcg:ance to :-
ship in any other,
(121 The fay:
of his life :Ibrn.,,l
lease his allcgia,ic
ing the civic, r:
which citizeii,h:i,
Amcr:c:itt nauvn:
life ab;„a 1. Ill ,
country, \then tr:i
our rcprescntai:+t
of Euro;ic.
ion, spent m.tr.y
dren of+t.Il:lit
were sent :,'iro i.:
cc:uc:l- ,I : rd
td tht: pine:..
earl. r •et ., !
ed. Ti-, C•• —;
sumC
Cou^ijie� t"r t�
al:atons,
groun,I nf inter:
the judo:-,, r! t f .
purpo.-e wl "ll t!:.
ess, as our l.tw r,
[13] T: _ ci: .
imp )-..gilt that ..
of it
of 1 ;, r:,., 1. If -
It dt,cs llut
dcr f,:r ..1
the suit f .r rtv-
The c>:;,t r, :
ed on Ugdrn :a
woul] nt r he t•
effect. 0 :,
SOIL purpox of r.
cisdir.:un of his
a rt•ast,n t!,.it ll.,•.
with tF.e
and w:i>
and there ... , r;.i
ira to L: .. ..
Od1ea
3
.f the
,rreet
.:it it
. hich
j ugal
..it be
c un-
To
:y or
must
pport
er V.
:. If
tw of
by is
I lift
to in -
Is, if
i nt;n-
isdic-
stion
it de.
due
rent
•i this
cs to
there
Cti i z-
basis
in of
to s
'Id it
.,rtics
rani*
d law
:ninny
nship
:Iat is
ice in
a di
le in-
estab-
juris-
r mat-
- dnin-
f ones
:e he
rship,
-:r in-
:s are
....In of
-itless,
1
00TIOUN i. Of7TiRN
Disk w 33 Seed e?o
: -n or trade, was born a citizen pearanc
of this country, and has never surrendered and co
his allegiance to it nor applied for citizen- it is cl
ship in any other country. notice
1121 The fact that he has spent most
of his life abroad does not ipso facto re-
lease his allegiance to this country, includ-
ing the civic, military and other duties
which citizenship imposes. Ilundreds of
Amcrte.m nationAls spend much of their
life abroad. In 'the early history of the
country, when travel conditions were poor,
our mpresentatives to the various courts
of Europe, tintahly Franklin and jcffer-
eon, spent many years -thrond. The clid-
dren of %%e,dOly planters and merchan:s
µ•ere scat ahro:t-1 at •c%-cn anal cirlit to be
cc!itc,:cd anal sta}cd till they had conipl,t-
ed their cdut•ation in their iatC tee115 or
c: r!y t%vi•ir:cs, Ltit they were nest cit:zcrs
of or su'.iiect to the clinics that ctr:zt n�%Ip
irrpuses nt the cottrarics where they resid-
ed. The cotirts of this state apu'd ::nt a,-
st:me iuri"lictinn over nationals of other
ccintTics for the purpose of divnrce and
al:monv, any b. ink sr., the will nut, on Cie
gratin,! of 1nrcrcr.;i-.na1 comity, reccgn,ize
the lud."'Incrit of rtn I:ngli�h Court for that
purpose when the cs<,.n:i.Js of due nrre-
•••r lair rngxres, are not o!-scr%cd.
[13) The qucs:ion of dom.cile is so
it~tut that it determines the Courts
jurihd:ctiun of the par;ies under the kov
of Fljr:da. If sib;ti;tr,,.d service is rc-
licd on to reach the dcfcn :ant, tile statute
titat rn-.i-t be strictly foiluwvd.
is ,t :!iat ihc•re was any or-
der fur subs:irutr.l service on Ogdcn in
the slat for rest-rt•,t;ion of eotijug:il rights.
The estocrt tcstimuny shows that even
thuu�h s:ibstitutcd service had been secur-
ed on Ogden in that suit, the judgment
WOUlu nut be i:utiticd to extraterritorial
erect. Og•1cn's special appearance fur the
sole purpuse of raising the question of ju-
risdiction of his persun was dismissed fur
a reason that had nuthing whatever to do
with the question of jurisdicuon. It al-
leged that he %vas a eit:zcn of this country
and was dotnicilcd here. The tear was on,
and there %%as no routs;bility of his retitrn-
ir•g to ErgL:n:l in the near future. Mrs.
Ogden conteiids that Ogden's specicl ap-
4% F1a- Sia
e was dismissed with his knowledge
nsent. Ogden denies this and since
ear that the English Court was on
of his claim of citizenship in this
country, we think the steps shown to ac-
gttire jurisdiction of him fall short of legal
requirements.
As a clincher to support reversal, appel-
lant relics on Bates v. hotter, M Nev. Si,
2W F. 2)3 and similar cases. \Vc have
given careful consideration to these cases.
In the Bates case both parties were Eng-
lish suhjtcts and for the porimscs of that
ctce had their marital domicile in Ein;land.
rlatcs was in Canad.t at the time suit f-r
divorce uas brunbht by his wife, and was
served %v:th n.,tice them, %%!uc!t, tinder
Ex-4lish procedure, was good as sult,utiit-
cd scr%icc, ]itilic c: �c at liar, (1:An not
only dctucd being ton 1.n!t�h subject but
ci ,nnc'd Ius citiZL';5h:;t iu tl:is ct,untry. Ile
tv,u dumicilcd in ::_•,. fork then the wife
iiit 1 her suit to restore c,inhihal rights,
and on account of the %%a-, then in progress
he could not return to EnLi!.tnd :till] con-
thegttestiun of dori:cilcric . ju.!zrnt
w:,s rcn.kred a:;ainst him withmit any con-
s:•i,-r ttwn to the issue of domicile.
Tic o; inion in Fates v. Bates shows on
its fc cc ,-!;at it was actu:ii%d by test;moony
of En, lish barri>., c to the cffcct that the
jut.,,mcnt for lu::cial scp:ira"on ryas
�r;:nteJ by a court having jurisdiction in
persc,n over both spouses, -In(! that so long
as it remains in f,:!i force in England, it
trill operate as a bar to plainnti's subsc-
(pi'.tit action fur divorce there on the
.tro!inds stated, that a Lkc jndgmcnt of
)u,'.i,i.tl scp.tration rendered fit Nevada
%%ould be accorded tic s.,nie cficct in Eng-
;:uu1. and since tltcre %%,,, ito ,honing of
fraud, as a inattcr of cumi:y, the jut!g:lent
for judicial separati m operates as a bar
to the pl:untiff's action fur di%urce in Ne-
vada on the ground of crut.Ity occurring
prior to the English decree.
j14) We do not inter,,,rct the evidence
of the En li_.h 1-.irr isters as to the ju,!g-
nicnt in the cunju�:t1 ri;hts case to have
any such effect. Ogden clai!ncd citizen-
ship and J.�taicilc in tEis can:ntry. His
c;:,im was sunim,trity di.;,,,,col of and he
v:as dcnicd art olj,„rttm;,y to cuntcst tine
S111 —iV.���
A
�4 40�
Fin. 33 SOL713FRN REPORTER, 2d SERIES
T:-;Fsh Court The petition for rehearing is denied
did n:,t acquire iurisdiction of his person and our former judgment of affirmance is
and stated that his residence in England adhered to.
was not essential. For these and other
reasons, the judgment secured against him THOMAS, C. J., BUFORD and AM
in England should not, as a matter of in- AifS, JJ., and PARRS, Associate justice,
ternat+onal comity, be recognized and giv- concur.
en the effect of res adjudicata in the case
Qt bar. CHAPMAN. I., dissents,
t
11
COOK V. 13E
2 Di%
Somme
(let. 31
Rehearing Devi
1. Mortgages 0=1
The test of w?
a "mnrtca;e" is «1;
secure a and,
tcrr.l into fo- ewe
de1)t, it 15 a m,-rtZ.
see Words nn1
for all
2. Mortgages G-38(I)
1=.�•idcncc stint:,:
action whrrcin
f.n,las:t a ,_Ltd .:1
tcmlcd as a
crt,;l, a to
payment of debt fur
security.
3. Appeal and error
Where w itnus�
fore lower a,urt ii
of lower court wot:
Appeal from C'r,
ty; L. S. 1;
Bill to declare a
redeem, and for of
H. Benton a::a :,n
and cross-b; l b•. r
verse decree, r;•�-
Af:irmed.
The contract or
the , artics
execution and '...
is as foilaws :
"This contract n
this the 12th day ,
Nlarzaret 11. Bent.
Benton, parties
Cook, party of
eth—
'•That
Benton anti