HERMAN GILLMAN, APPELLANT,
v.
ANNE GILLMAN, APPELLEE
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The husband appealed a final judgment of dissolution of marriage granted to his wife, arguing the trial court lacked jurisdiction. The appellate court agreed, finding the wife failed to satisfy Florida's residency requirements both procedurally (through inadequate corroboration of testimony) and substantively (having resided in Florida for only four months, not the required six months, when the petition was filed).
The trial court lacked jurisdiction on both grounds. First, Section 61.052(2) requires that the individual invoking the court's jurisdiction must personally testify as to actual presence in the state and intention to make Florida their residence, and such testimony must be corroborated by other evidence. Second, the six-month residence requirement means the petitioner must reside in Florida for the six months immediately preceding the filing of the petition, and the wife had resided there only four months when she filed.
[1] A party filing a petition for dissolution of marriage must reside in Florida for the six months immediately preceding the filing of the petition.
[2] Evidence of a party's Florida residence for the purpose of dissolution of marriage must be corroborated.
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Join FLexlaw to unlock all legal intelligence“We hold that Section 61.052(2), Florida Statutes (1971), requires that the individual invoking the jurisdiction of the court must testify as to his or her actual presence in the state and the intention to make Florida his or her residence at that time, and that such testimony must be corroborated by other testimony or objective evidence.”
Establishes the core holding regarding the statutory requirement for personal testimony and corroboration in jurisdiction cases.
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Join FLexlaw to unlock all legal intelligenceThe wife filed a petition for dissolution of marriage in January 1980. She had moved to Florida from New York in September 1979, giving her approximat…
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DELL, Judge.
The husband appeals a final judgment of dissolution of marriage, granted by the trial court on petition of the wife, contending the trial court was without jurisdiction. We agree and reverse.
To obtain a dissolution of marriage, the party filing the proceeding must reside in Florida for six months before filing the petition. § 61.021, Fla.Stat. (1971). Evidence as to Florida residence must be corroborated. § 61.052(2), Fla.Stat. (1971). Appellee did not testify to her Florida residence. The only evidence adduced was the testimony of appellee’s sister. Because this evidence of residence was not corroborated as required by Section 61.052(2), Florida Statutes (1971), the trial court was without jurisdiction to enter the judgment of dissolution.
Although this error alone requires reversal, another jurisdictional error requires discussion. Appellee’s sister testified that appellee had been a resident of Florida for one year at the time of the hearing, having moved to Florida from New York in September of 1979. Although this established that the appellee had been a resident of Florida for one year at the time of the hearing, it also established that at the time the petition was filed in January of 1980, appellee had been a Florida resident for not more than four months. The witness’s further testimony as to appellee’s residence was unclear, confusing and did not dispel the effect of her previous testimony.
Section 61.021, Florida Statutes (1971), requires the party filing the proceeding to reside six months in the state before filing the petition. We construe this section to mean the party filing the proceeding must reside in this state for the six months next preceding the filing of the petition. Residence for purposes of dissolution of marriage means an actual presence in Florida coupled with an intention at that time to make Florida the residence. Curran v. Curran, 362 So. 2d 1042 (Fla. 4th DCA 1978). Thus, the residence requirement is not satisfied by the mere maintenance of a vacation or other temporary home in this state. Nor does the establishment of six months bona fide Florida residence forever after entitle the petitioner to invoke the jurisdiction of our courts. See Gordon v. Gordon, 369 So. 2d 421 (Fla.3d DCA 1979). The testimony in this case did not tend to prove that actual, continuous presence coupled with the requisite intent existed until September, 1979. Since the petition was filed only four months later, the trial court was without jurisdiction to enter the judgment appealed.
We hold that Section 61.052(2), Florida Statutes (1971), requires that the individual invoking the jurisdiction of the court must testify as to his or her actual presence in the state and the intention to make Florida his or her residence at that time, and that such testimony must be corroborated by other testimony or objective evidence.
Accordingly, the final judgment of dissolution of marriage is reversed.
GLICKSTEIN and HURLEY, JJ., concur.
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Fernandez v. Fernandez, 648 So. 2d 712 (Fla. 1995)…WELLS, Justice. We have for review Fernandez v. Fernandez, 632 So. 2d 638 (Fla. 2d DCA 1994), which expressly and directly conflicts with the decision in Gillman v. Gillman, 413 So. 2d 412 (Fla. 4th DCA 1982), on the issue of whether an individual seeking to invoke the jurisdiction of the court in a proceeding pursuant to chapter 61, Florida Statutes (1991), for the dissolution of a marriage must testify in a hearing before the presid…
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Emir Shammay v. Shammay, 491 So. 2d 284 (Fla. 3d DCA 1986)…We construe this section as meaning that the defendant’s residency in this state must proximately precede the commencement of an action. See Squitieri v. Squitieri, 196 N.J.Super. 76, 481 A. 2d 585 (N.J.Super.Ct.Ch.Div.1984); cf. Gillman v. Gillman, 413 So. 2d 412 (Fla. 4th DCA 1982) (interpreting section 61.021, Florida Statutes (1971) as requiring the party filing dissolution to have resided in Florida six months next preceding the filing). Proximity is to be determined in light of the totality of the circu…
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Eckel v. Eckel, 522 So. 2d 1018 (Fla. 1st DCA 1988)…the state before the filing of the petition.” The six-month residency requisite has been construed “to mean the party filing the proceeding must reside in this state for the six months next preceding the filing of the petition.” Gillman v. Gillman, 413 So. 2d 412, 413 (Fla. 4th DCA 1982) (e.s.). Florida courts have recognized an exception to the statutory residency demand as to members of the military, allowing them to seek divorce in Florida without proving their actual presence in the state during the six-…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Curran v. Curran, 362 So. 2d 1042 (Fla. 4th DCA 1978)
- Gordon v. Gordon, 369 So. 2d 421 (Fla. 3d DCA 1979)